The Universal Declaration of Human Rights: Origins, Drafting, and Intent

&��� g-Y � J OHANNES MORSINK . .

The Universal Declaration of Human Rights

Pennsylvania Studies In Human Rights

Bert B. Lockwood, Jr., Series Editor A complete list of books in the series is available from the publisher.

The Universal Declaration of Human Rights Origins, Drafting, and Intent Johannes Morsink

PENN University of Pennsylvania Press Philadelphia

Copyright� 1999 Johannes Morsink

All rights reserved

Printed in the United States of America on add-free paper 10 9 8 7 6 5 4 3 2

Publ ished by

University of Pennsy lvania PreSB

Philadelphia, Pennsylvania 19104-4011

Library of Congress Cataloging-In-Publication Data Morsink, Johannes,

The Universal Declaration of Human Rights :

and intent/ Johannes Morsink. p.

or igins,

drafting,

em. - (Pennsylvania studies In human rights)

Includes bibliographical references (p.

) and Index,

ISBN 0-8122-3474-X (cloth) ; ISBN 0-8122-1747-0 (pbk)

1. United Nations, G enera l Assembly, Universal Declaration of

Human Rights-History. century.

I. Title

K3238.31948.M67

841.4'81'09-dc21

2. Human rights-Hiltory-20th

II. Series. 1999

98-41468 CIP

To

my sons

Erik Johannes and Alexander Bartlett

Contents

Introduction: The Declaration at Fifty

ix

Chapter 1: The Drafting Process Explained 1.1 The United Nations Charter and the Declaration 1.2 The Seven Drafting Stages 1.3 Original Intentions and the Cold War 1.4 The Eight Abstentions 1.5 Authors, Title, and Addressees

1 1 4 12 21 28

Chapter 2: World War II as Catalyst Personal Security and the Camps Nazification and Legal Human Rights The Problem with the Nuremberg 'frials Democracy, Free Speech, and Hate Speech 2.5 Special International Human Rights and the Role of the United Nations 2.6 Social, Economic, and Cultural Examples

36 37 43 52 58

Chapter 3: Colonies, Minorities, and Women's Rights The Communist Push for Nondiscrimination The Problem of the Colonies Race, Color, National Origin, and Language Political Opinion, Property, and Birth The Women's Lobby and Women's Rights

92 93 96 102 109 116

Chapter 4: Privacy and Different Kinds of Property 4.1 The Latin American Connection 4.2 Inviolability and Privacy Rights 4.3 Should Personal Property Be Singled Out?

130 130 134 139 146 152

2.1 2.2 2.3 2.4

3.1 3.2 3.3 3.4 3.5

4.4 "Alone as Well as in Association with Others" 4.5 A Minimum Within a Larger Framework

72

88

viii

Contents

Chapter 5: The Socialist Shape of Work-Related Rights 5.1 Freedom and the Right to Work 5.2 The Right to Protection Against Unemployment 5.3 The Campaign for Trade Union Rights 5.4 Union Shops, Strikes, and Levels of Implementation 5.5 Conditions: "Human Labour Is Not a Merchandise"

157 158 162 168 174 181

Chapter 6: Social Security, Education, and Culture 6.1 Food, Clothing, Housing, and Medical Care 6.2 Troubles with the Phrase "Social Security" 6.3 The Rights to Full Development, Education, and Culture 6.4 The Distinction Between "Old" and "New" Human Rights 6.5 The Organic Unity of the Document

191 192 199 21 0 222 232

Chapter 7: Duties and Communities 7.1 The Duties and Communities of Article 29 7.2 Protecting the Family, Motherhood, and Childhood 7.3 The Rights of Religious and Educational Communities �.4 The Omission of a Special Minority Rights Article

239 241 252 258 269

Chapter 8: Article 1, the Preamble, and the Enlightenment 8.1 A Bargain About God and Nature 8.2 "Inherent," "Inalienable," and "Born" 8.3 Reason and "the Conscience of Mankind" 8.4 The Rights to Petition and Rebellion 8.5 Human Rights as Means and Ends 8.6 The Declaration and Human Rights Education

281 284 290 296 302 313 320

Appendix: The Universal Declaration of Human Rights with a Guide to Discussions of Specific Topics and Articles

329

Notes

337

Acknowledgments

379

Introduction: The Declaration at Fifty

It is inevitable that a document like the Universal Declaration of Human Rights should raise questions about the possibility of there being universal values. This questioning started before the document was even finished, has continued to this day, and will probably never end. In 1947 the UN Human Rights Commission that wrote the Declaration received a long memorandum from the American Anthropological Association (AAA). The AAA was worried about the problem of ethnocentrism (holding the values of one's own cul­ ture as superior to those of other cultures). It is hard to avoid making ethnocentric judgments because we grow up with the values of our own group or society, and we almost never stop to analyze them. This process of enculturation, as the AAA told the Commission, is "so subtle, and its effects so far-reaching, that only after considerable training are we conscious of it."1 The anthropologists believed that the Human Rights Commission was in danger of making such ethnocentric judgments in the International Bill of Rights. As they saw it, "the primary task" the drafters faced was to find a solution to the following prob­ lem: "How can the proposed Declaration be applicable to all human beings and not be a statement of rights conceived only in terms of values prevalent in the countries of Western Europe and America?" (p. 116). The AAA was worried that this problem had no good solution. The anthropologists highlighted three propositions for the Commission to pon­ der: (1) "The individual realizes his personality through his culture, hence respect for individual differences entails respect for cultural differences"; (2) "Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered"; and (3) "Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to. that ex­ tent detract from the applicability of any Declaration of Human Rights to mankind as a whole" (emphasis added). Behind these propositions lay the conviction that "what is held to be a human right in one society may be regarded as anti-social by another people, or by the same people in a different period of their history." 2 Depending on how we interpret the phrase "to that extent" in the third proposi­ tion, the Commission was either asked to be extremely careful so as not to recommend merely Western values to the rest of the world, or was politely told that it was trying the square the circle and that the job it had been given by the Economic and Social Coun-

x

Introduction

cil could not be done.3 Given that the AAA also held that no qualitative way of compar­ ing cultures had yet been found, I believe that they thought the job could not be done.4 ·The drafters of the Declaration clearly thought otherwise. Since they went ahead in spite of these warnings, they must have thought that they had found a way of qualita­ tively comparing different value systems that shape different lifestyles and even whole cultures. What they produced has profoundly changed the international landscape, scattering it with human rights protocols, conventions, treaties, and derivative decla­ rations of all kinds. At�end of the twentieth c;:enttrr_y_there is not a single__nation, c;:ul­ tureJ--or_p�<:):Rle t��t is not in one way or another enmeshed in human rights regimes. Mter the adop�Ofilie Declaration in.December 1948, the worries expressed by the American Anthropological Association became charges that the document that had been produced was indeed a product of Western ethnocentrism. Abdullahi Ahmed An-Na'im is an Islamic scholar who with others is seeking to create greater cross-cultural acceptance of human rights and of the Declaration. He is a supporter of the Declaration, but as soon as he "began to examine the ratio­ nale and content of these [international human rights] standards more closely, from a cross-cultural point of view, [he] became more appreciative of their bias." An-Na'im believes that "all normative principles . . . are necessarily based on specific cultural and philosophical assumptions." From this he concludes that, "given the historical context within which the present standards have been formulated, it was unavoidable that they were initially based on Western cultural and philosophical assumptions." 5 The implication here is that the drafters of the Universal Declaration could not avoid producing an ethnocentric document. Similarly, Asmarom Legesse, who writes on human rights and Africa, believes that the Western liberal democracies ended up writing "most of their values and code of ethics into the Universal Declaration," which leads him to observe that "the human rights movement faces the danger of becoming an instrument of cultural imperial­ ism." 8 When Antonio Cassese asks, "How did the West succeed in imposing its 'phi­ losophy' of human rights" upon the Universal Declaration, he more or less assumes that this is what happened.7 William Alford, who writes on human rights in China, finds it "touching" when he meets up with scholars who believe that "current interna­ tional standards of human rights should and will prevail universally," but he also finds their faith "deeply troubling in its ethnocentricity." 8 Adamantia Pollis and Peter Schwab spoke for many critics when they asserted that "the Western political philosophy upon which the Charter and the Declaration are based provides only one particular interpretation of human rights, and that this Western notion may not be successfully applicable to non-Western areas for several reasons," which they then state.' When they wrote this in 1980 Pollis and Schwab saw the Universal Declaration as an "articulation and reinforcement of political values that had prior existence" in Western Europe and the United States and thus with limited applicability in other non-Western parts of the globe (p. 7). They thought, as many critics still do, that "efforts to impose the Declaration as it currently stands not only reflect a moral chauvinism and ethnocentric bias, but are also bound to fail" (p. 14). The literature on human rights is replete with these kinds of criticisms of the Declaration. These criticisms will probably grow in intensity and frequency because the universalist agenda of liberalism is closely aligned with that of universal human

The Declaration at Fifty

xl

rights, and liberalism has come under attack by a growing chorus of contextualist and communitarian thinkers. According to Alasdair Macintyre, one of the founders of this new school of thought, the notion of human or natural rights is nothing but a "fic­ tion" and a "pseudo concept." Macintyre believes that "in the UN Declaration of 19� [sic] the normal UN practice of not giving good reasons for any assertions what­ soever is followed with great vigor." 10 He proffers Nietzsche as the moral philosopher who best represents our age, which leads him to the conclusion that many people ac­ cept the following line of thought: "If there is nothing to morality but expressions of will, [then] my morality can only be what my will creates. There can be no place for such fictions as natural [or human] rights" (p. 113). But the drafters of the Universal Declaration did not see Nietzsche as the best representative of what they thought. They did not believe that there was "nothing to morality but expressions of will." And, I submit, neither do many of the contempo­ rary believers in universal values who are part of the human rights movement that has spread across our globe in spite of Macintyre's warnings that "new dark ages" are upon us (p. 263). Macintyre wrote this some thirty years after the Declaration was adopted. Now, twenty years after that, the situation is even more clearly reversed. In the late 1940s believers in human rights had to fight for intellectual legitimacy, a battle they finally won on account of the horrors perpetrated by the Nazis.11 Now, as the document passes its fiftieth anniversary, critics have to make their case against the background of the extraordinary success that the Universal Declaration has become. Hurst Hannum has made a survey of the status of the Universal Declaration in national and international law in the early 1990s. His opening sentence acknowledges the profound influence of the Declaration: "Th�_J)ni.Yersal Declaration-oLHuman Rights has been the foundation of much of the post-1945 codification of human rights, and the international le!@l system is replete with globaf an(fregionaltfeatre-s--ba sed, in la�gemeasuie� �th� D��l�rati�n." l�� Ha!t!liim supports this claim with a list of1if!Y. international human righ!s i!ls�ruments that make reference to, and so can be said to have beenfllspired by, the Uni.;mi[li��I_arati()ii�<>ffhi01�n Rights.18 It turn�-out that the adoption in 1948 of a Declaration that did not itself include any machinery for its own implementation has been a blessing in disguise. Because it floats above all local and re io tatement of more orless abstract moral rights and principles, the Declaration servea asatnidwife-nn -e- irth-of all-these other more concrete and detailed international instruments: Hannum cites twenty-three court cases in France that made reference to the Uni­ versal Declaration, six in Australia, seven in India, nine in the Netherlands, eleven in the United Kingdom, eighty-nine in the United States, and fewer than eleven in a host of other countries. 14 Not all of these references are of the same quality and they do not mean that the Declaration is a source of law for the nations mentioned. But these references do show that the Declaration has gained moral visibility in many countries. At least sixty of the more than eighty domestic constitutional citations Hannum gives grant some measure of authority to an outside standard of judgment. And of these sixty, no fewer than twenty-six are in terms of an explicit acknowledgment of the prior authority of the Universal Declaration of Human Rights over the domestic legal systems in question.15 For example, Article 10(2) of the 1978 Spanish Constitu.

•

•

xll

Introduction

tion states: "The standards relative to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain" (p. 374). And the Preamble of the Haitian Constitution of 1987 states: "The Haitian people proclaim this constitution in order to: - Ensure their inalienable and imprescriptible rights to life, liberty and the pursuit of happiness; in conformity with the Act of Independence of 1884 and the Universal Declaration of Human Rights of 1948" (p. 365). The co�stitutions of at least twenty-six nations acknowledge that their own citizens ha'V�Jn the Universal Declaration an outside standard by which they can mance of their own governments regarding h�man rights observance judge the J!_ -and implementatlOD. Intlierest-or-theWorld-thfs- same evaluation process is taking place, albeit without such direct constitutional license. Hundreds of human rights organizations, like Human Rights Watch and Amnesty International, assess the policies and actions of all of the world's governments against standards like the Universal Declaration. The combined membership of these orga­ nizations adds up to several million people. This phenomenal growth has made the Universal Declaration the secular bible for hundreds of thousands of human rights foot soldiers who are active in the field. Amnesty International alone has over a mil­ lion members worldwide, with more than six thousand local groups in over severity countries. More than two thousand high school groups exist in the United States. In June 1995 I attended a human rights convention in London where at least fifty human rights advocacy groups had a booth or stall (and a workshop, panel, or presentation) explaining in what way their organization was involved in combating human rights violations in the United Kingdom and the world beyond. That was just one convention in one country. From the pamphlets and handouts I picked up there, it was clear that the Universal Declaration of Human Rights is the moral anchor of­ this worldwide movement. The Universal Declaration is the only document explicitly mentioned in Amnesty International's mission statement, which states that the organization "works to pro­ mote all the human rights enshrined in the Universal Declaration of Human Rights and other international standards through human rights education programs and campaigning for ratification of human rights treaties." To bolster and support these human rights education programs Amnesty International USA has created a Human Rights Educator's Network.16 This organization's goal is the introduction of human rights education as the "fourth R" in all of North America's primary and secondary schools. Similar efforts are being made in other countries. The Universal Declaration is the central text in all the material that this Fourth-R campaign sends out. In the last section of this book I show just how appropriate this education goal is; the drafters of the Universal Declaration meant their document to be used in the first instance as an educational tool. As this book was researched and written, I discovered that the charges of ethno­ centrism that were leveled at the Declaration were often not well-founded and that friends of the document either forgot or did not know how to answer these charges. Thus, the Universal Declaration at the age of fifty faces a midlife crisis of sorts. Now that it has matured and made its impact upon the world the document e�oys un­ precedented prestige. It has high moral visibility both in courts of law and in the

�

The Declaration at Fifty

xlll

trenches. Yet, with all this respect and attention, it is still constantly being charged with the crime of ethnocentrism. It is still living with the suspicion, nurtured in many intellectual circles, that something went wrong way back at the beginning. The lingering allegation of ethnocentrism is in part caused by the fact that very few people seem to know what was said and done during the drafting process. This ignorance has led to numerous misconceptions about how the document was written and what it and its various parts mean. It is my hope that this book will help make the continuing dialogue about the Declaration a more informed one by setting the draft­ ing facts on the table. Perhaps the discussants can settle their remaining normative questions but in the full knowledge of what was said by whom, when, and why. To the mitigated skeptic who thinks that there is hope for the Declaration if only it can be fixed and broadened to include concerns about minority groups, women's rights, religious commitments, communitarian concerns, and social, economic, and cultural rights, I recommend the chapters and sections whose titles point to those concerns. And to the extreme skeptic who thinks that all is lost and that human rights do not exist, I recommend Chapters 2 and 3, on World War II and on the principle of nondiscrimination, together with selections from Chapter 8. As a work of historical research, this drafting history is one of the internal kind. Except for the obvious connections with World War II, the Cold War and Latin Ameri­ can socialism, I have made very little attempt to connect specific drafting episodes to specific external matters at the time. This limitation came very naturally, for (with the same exceptions) the drafters themselves were very much focused on their task and almost never brought specific world events to the drafting table. This discipline was in no small measure due to the moral authority that Eleanor Roosevelt exerted as chair of the Commission that produced the Declaration. With the aid of numerous citations from the United Nations archives I explain why the text of the Universal Declaration reads the way it does-why certain rights or clauses were included and others cast aside. I report on who or which delegate said what, when, and why. Blocs of votes for and against certain rights are given, almost always with the tally of the vote so that the reader can tell whether a clause or article was narrowly accepted or defeated and by whom for what reasons. By also report­ ing on the most important amendments that were rejected I hope to give the reader a sense of the importance of these debates and of the idealism and excitement that was present in the early years of the United Nations before realism and cynicism took hold. These citations from the archives form the bulk of each chapter. The chapters are organized in a rough thematic order, beginning with an expla­ nation in Chapter 1 of the drafting process and ending with a discussion in Chapter 8 of some philosophical fragments found at the beginning of the Declaration. (The full text of the Universal Declaration of Human Rights appears in the appendix, annotated with what chapters and sections of this book discuss specific articles and provisions of the Declaration.) I show in Chapter 1 that the two-year-long process of drafting the Declaration was a very inclusive one that comprised at least seven distinct drafting stages. Even though the Preamble and Article 1 are the first parts of the Declaration, I have left their drafting stories until Chapter 8 because they were not written, discussed, and approved until after almost all of the rest of the document was firmlx in place .. 'ln between tliese two end points, I have dealt first with the absolutely crucial fac-

xlv

Introduction

tor of the Holocaust, for without the delegates' shared moral revulsion against that event the Declaration would never have been written. Chapter 3, "Colonies, Minori­ ties, and Women's Rights," is an exposition of one of the main principles the draft­ ers used to write the Declaration. Articles 1 and 2 of the Declaration can be seen as complementary, for what Article 1 states positively, that all people are born "free and e qual in dignity and rights ," Article 2 states negatively when in the enjoyment of human rights it prohibits the making of distinctions "of any kind." In this chapter I show how the drafters deliberately used this principle of nondiscrimination to write the protection of members of minority groups and of women into their document. Chapters 4, 5, and 6, which deal with the presence of the social, economic, and cultural rights in the Declaration, probably will come as a great surprise to many readers. In each of these chapters I uncover the strong influence of Latin American socialism on the drafting process and product. This is one of the misconceptions this history clears up , for it is not the Communists hut the Latin Amerkan-socialists- and John·Humphrey as their conduit-to whom we owe the presence of these rights in the Declaration. ' In the last two sections of Chapter 6 I explain that the drafters did make a dis­ tinction between the "old" civil and political human rights of the eighteenth century and the "new" social, economic, and cultural ones of the nineteenth and twentieth centuries. I make the case that for the great majority of the drafters this distinction was a benign one. Almost all of them seem to have believed that there is a fundamen­ tal unity to all human rights, which they expressed in what they called the "organic unity " of their document. By this they meant that each article of the Declaration must be interpreted in light of all the rest, and especially in light of others on the same topic or theme, and not necessaril in terms of its exact la�� i?the fimlis � quence. There were or them no two kinds of citizens in the realm of moral rights. None of the topics or themes announced in the chapter titles and section head­ ings were treated by the drafters in just one or two articles. They are all themes that underlie the enti re document or large parts of it. And they cannot be captured in a strictly sequential article -by-article exposition. My approach produce s a drafting his­ tory of the whole document that is broken up into specific drafting segments that con­ cern the topic or theme announced for each chapter and section. No other book takes the reader behind the scenes and into the drafting details in this kind of comprehen­ sive way. Since in the course of treating the announced themes I do also comment in depth on all of the articles in the Declaration, this study complements existing article­ by-article commentaries on the Declaration. While researching this book I felt like a detective who constantly probes his sources to see why something was done or not done and by whom. Since the records are very complete I was almost always successful. If the reader of this history of these discoveries receives half the pleasures that I experienced when I first made them, that will be a great deal. - -·

Chapter 1 The Drafting Process Explained

1 . 1 The United Nations Charter and the Declaration

When the United Nations was founded in San Francisco in 1945 there was tremendous pressure on the delegates to that founding conference to include an international bill of rights in the Charter of the United Nations. The national and international pres­ sure for such a bill had been steadily building throughout World War II. In his 1941 State of the Union address President Franklin Roosevelt called for the protection of four essential freedoms: "the freedom of speech and expression, the freedom of worship, the freedom from want, and the freedom from fear." When the drafters of the Universal Declaration wrote in their Preamble that "the freedom of speech and belief and freedom from fear and want ha[ve] been proclaimed as the highest aspiration of the common people," they knowingly paid tribute to this Ameri­ can president and his ideals.1 Roosevelt's enunciation of the four freedoms was part of a movement that gathered strength in the early 1940s and which wanted to make the protection of human rights part of the conditions for peace at the end of the war. Later in 1941 the National Catholic Welfare Conference sent Eleanor Roosevelt a letter, ask­ ing her to push for human rights. In August, about the time the Atlantic Charter was signed, a conference on human rights was held in Buenos Aires and in his june 1 radio message the Pope too pleaded for an international bill of human rights. On the first of january, 1942, Roosevelt and Churchill signed the Declaration of the United Nations which explicitly referred to human rights. In August all the French priests read to their parishes a letter which opened with a direct reference to the natural rights of man. In 1943 the pressure for some sort of human rights plank in the eventual peace treaties became intense. Jews, Catholics, and Protestants joined in a common call for peace and respect for human rights; 750,000 copies of their pamphlet A Pattern for Peace were distributed. Americans started to regain their Wilsonian idealism and Roosevelt, reading the signs of the times, raised at the Teheran Conference in Novem­ ber the matter of a United Nations Organization with Stalin. In February 1943 the American Institute of Law produced its own version of an International Bill of Rights. Later, in the spring of 1948, this bill was given s pecial attention in one of the working groups of the Commission that drafted the Declaration.2 In April, in Philadelphia, the International Labor Organization drew up its own bill. Representatives of this orga­ nization were present at almost all the sessions of the Commission and the article on work received its impetus from this group. "By mid-44," says Cold War scholar Aruga Tadashi, "the American people" had

z

Chllpter t

"once again embraced internationalism . . . [which] regarded the UN as the core of the new international order.'' 8 And Roosevelt had become so eager to get the new interna­ tional organi zation off the ground that he made it his number one agenda item when he met with Stalin at Yalta. At first Stalin resisted, but a comprom ise was worked out. As Daniel Yergin explains it, "the Great Powers retained a ve to in the security council and the Western leaders agreed to support the admission of two or three constituent Soviet republics."4 1\vo of these republics, the Byelorussian and Ukrainian ones, were later to play a forceful role in the drafting of the Universal De claration . In Febru ar y I945 the American Jewish Committee drew up its version of the International Bill of Rights. Representatives of this Committee were present at almost all the UN meetings about the Declaration and their contribution was particularly helpful in the drafting of Article 26 on ed uc ation and of 29, p�raph...3,_on..the_pro­ hibition to exercise the rights of the Declaration contrary to the purposes of the UN.5 The American Bar Ass ociation soonJollowed suii-Numerousother law organiz ations and individuals produced drafts_�f an international_bill, many of which are listed (in EfCN.4/W.l6) by J�hn P._I:Iumphrey�-whose-first-dr-aft-of-the D eclaratio n I dis cuss below-as part of his�':!PP-Orting materi al . This pressure for a bill was not just domestic , for at the Inter-American Confer­ ence on War and Peace, held in Mexico City, in Febru ar y and March 1945, twenty- one American countries said they wanted to see a bill of human rights as part of the very Charter of the United Nations which was soon to be organized. Three of thes e nations (Cuba, Chile, and Panama) were the first ones to submit to the United Nations a draft for su a bill and at the 1945 San Francisco Conferenre-they-trieth.ogenchuman righ ts biifiru:luded in the Charter of the United Nations. Their efforts were greatly am­ plified bytne forty-stx CIVIC and rehgtous groups wmCOU:S. Secretary of St ate Edward Stettinius had invited to San Francisco to help in the founding. All this international and national pressure paid off when on May 4 Secretary Stettinius accepted the idea that the United Nations Charter should include, if n ot an outright bill of rights, then certainly explicit references to the need for international recognition and protection of human rights. There are seven such U!ferences to be found in the Charter ofthe United Nations. In the opening paragraph the peoples of the United Nations reaffirm their "faith in fundamental human rights, in the dignity and worth of the human person, in the equal ri ghts of men and women and of nations large and smal l ." They also say there that they are determined "to promote social progress and better standards of life in larger freedom." The drafters of the Universal Declaration repeat much of this language in _

cll""

the fifth recital of their own preamble: "Whereas the p eop les of the United Nations

have in the Charter reaffirmed their faith in fundamental human rights, in the digni t y and worth of the human person and in the equal righ ts of men and women and have determined to promote social progress and better standards of life in larger freedom." In Chapter 8 (8.5) I show that this reference to "social progress " together with the stated goal of Article 55, to promote "higher standards of living, full employmen t, and conditions of economic and social progress and development," was used to make the case for the inclusion of the social, economic, and cultural rights in the Declaratio n . In paragraph three of Article 1 of the ir Charter the UN founders repeat the same kind of langu age and commitment. They state that one of the purposes of the United

The Drafting Process Explained

J

Nations is to "achieve international cooperation" in the "promoting and encouraging [of] respect for human rights and for fundamental freedoms for all without distinc­ tion as to race, sex, language, or religion." That same short list is repeated again when Article 1 3 of the Charter states that "The General Assembly shall initiate studies for the purpose of . . . assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." Many of the earliest studies were specifically done to help the Commission on Human Rights draft an international bill. And again in Article 55, the Charter states that the United Nations "shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." We will see in Chapter 3 that the authors of the Declaration knowingly and after much discussion decided to go beyond this short Charter list of nondiscrimination items and prohibit "any kind" of discrimination based on "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Article 62 of the Charter says that the Economic and Social Council (ECOSOC) "may make recommendations for the purpose of promoting respect for, and obser­ vance of, human rights and fundamental freedoms for all." The Council used this power when it recommended on December 10, 1948, that the Third General Assem­ bly of the United Nations adopt and proclaim the Universal Declaration of Human Rights. In Article 68 the Charter tells this same Council that it "shall set up com­ missions in economic and social fields and for the promotion of human rights." This shows that the Economic and Social Council had no choice but to set up the Human Rights Commission that was to draft the Declaration. It is t4e only commission of the el}- tire United Nations system that is mandated by the UN Charter, which goes to show how important the cause of human rights protection and recogmt1on was to the foup.ders of the United Nations. Articles 73 and 76 of the Charter specifiailly apply all the h!lman rights references of the UN Charter to the colonies and other non-self­ governing territ9_r.�s. Th� state that those countries which are responsible for "the administration of territories whose peoples have not yet attained a full measure of self-government" shall with respect to those territories "encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, lan­ guage, or religion." The phrase ,non-sel(governing territories was a euphemism for colo­ nies. Given this clear mandate, it is no wonder that some of the delegates involved in drafting the Declaration wanted the same kind of direct application written into the Universal Declaration. They did get it and it is the second paragraph of Article 2, but I show in section 3.2 that it did not come without struggle. In Chapter 8 (8.5) I discuss the drafting of the Preamble and its connections with the UN Charter The above citations have already shown us that the Universal Declara­ tion of Human Rights is an e tension and an ex lication of these Charter references to h�ts However, the Charter does not at any point man ate t at an mter­ national bill of rights be written. It mandated that a Commission on Human Rights be established and left the matter of an international bill of rights to be understood and implied. At the closing of the San Francisco Conference the American presi­ dent, Harry Truman, made this point explicit. Upon becoming president Truman had wholeheartedly taken over Roosevelt's United Nations project. He praised the dele­ gates for their single-minded focus on producing a charter for the new organization .

.

4

Chapter I

and promised them that "[u]nder this document we have good reason to expect the framing of an international bill of rights, acceptable to all the nations involved. That bill of rights," Thuman predicted, "will be as much a part of international life as our own Bill of Rights is a part of our Constitution."6 Truman's promise was kept when the Economic and Social Council, "being charged," as it said, "under the Charter with the responsibility of promoting uni­ versal respect for, and observance of, human rights and fundamental freedoms . . . " ESTABLISHE ( D ) A COMMISSION ON HUMAN RIGHTS and charged that Commission first of all to come up with a recommendation and report "regarding . . . an interna­ tional bill of rights" (E/248). The Commission on Human Rights, having been estab­ lished and given the task to write an international bill of rights, worked on that project for two full years, from january 1947 to December 1948, when the Third General As­ sembly adopted what it called the Universal Declaration of Human Rights. 1.2 The Seven Drafting Stages

In April and May of 1946 the Nuclear (preparatory) Committee met to make recom­ mendations 'to the Economic and Social Council about the shape and tasks of the Human Rights Commission that the Council had been mandated to create. This Nuclear Committee received from the Council the earliest drafts for an inter­ national bill submitted by several Latin American nations. It decided, however, that "while it was within its competence to draft a bill of human rights, it was not as yet in a position to do so, but it would proceed with the preparatory work" (E/38/Rev.lfp. 3). As part of such preparation it heard from numerous nongovernmental organiza­ tions on the subject of human rights and freedoms.7 It recommended that the number of members on the Commission be eighteen, that they "serve as non-governmental representatives," and that one nation should be able to sponsor a candidate "from another member nation" (E/38/Rev.lfp. 9). Both of these suggestions were turned down because the Economic Council felt that these eighteen members should be offi­ cial representatives and that they should speak for their own countries. This decision enhanced both the solemnity and the universality of the drafting process. That universality was also enhanced by the Nuclear Committee's suggestion that the Council "should at all times pay due regard to equitable geographical distribu­ tion and to personal qualifications of the nominees for service on the Commission" ( E/ HR . 9jp. 5). The Council followed this advice when it appointed the following nations to serve on the Human Rights Commission that was to produce the Declara­ tion: Australia, Belgium, Byelorussian .§oviet Socialist Republic (BSSR), Chile, China, Eg_wt, Fran_£�! India, Iran, L��o11� �nama, Philippine R�public, United Kingflom; United States_�� ��erica, Union of Soviet Socialist Republics, Uruguay�
)

11'1e Drafting Process Explained

5

Stage I

The First Session of the Commission, that is stage 1, met in january and February 1947. As soon as the delegates came to discuss the machinery for drafting an international bill of rights, the issue arose as to whether to entrust the drafting of the Declaration to a committee or to the Secretariat. It was decided that "the Chairman of the Com­ mission on Human Rights, together with the Vice-Chairman and the Rapporteur, undertake, with the assistance of the Secretariat, the task of formulating a prelimi­ nary draft international bill of human rights." It was also agreed that this executive group- chairman, vice-chairman, and rapporteur- could consult any member of the Commission and experts "chosen with consent of their governments, Members of the United Nations" (SR.l2/p. 5). This last limitation was later removed when the drafting group was given permission to "consult any document or person deemed by them of relevance to their work" (SR.l8jp. 2). These executives had one meeting, which john P. Humphrey, the newly appointed Director of the Secretariat's Division on Human Rights, also attended. Humphrey re­ ports that "it was typical of Mrs. Roosevelt that she should want the drafting commit­ tee to begin work at once and she invited her two colleagues and me to meet her in her Washington Square apartment on the Sunday following the adjournment," at which Humphrey was asked to prepare a draft of the Declaration. That meeting took place on February 17, which was a good day for some tea and philosophizing. Writes Humphrey: [Peng-chun] Chang [China] and [Charles Habib] Malik [Lebanon] were too far apart in their philosophical approaches to be able to work together on a text. There was a good deal of talk, but we were getting nowhere. Then, after still another cup of tea, Chang suggested that I put my other duties aside for six months and study Chinese philosophy, after which I might be able to prepare a text for the committee. This was his way of saying that Western influences might be too great, and he was looking at Malik as he spoke. He had already, in the Commission, urged the importance of historical perspective. There was some more discussion mainly of a philo­ sophical character, Mrs. Roosevelt saying little and continuing to pour tea.a

A.]. Hobbins's research in the McGill Humphrey archives shows that soon after he was asked, Humphrey started to write various drafts of the Declaration.9 The com­ ments on one his drafts indicate that he showed it to Eleanor Roosevelt on Febru­ ary 28. He had a mimeographed draft ready by March 15. This last draft is the same as the one that he distributed at the first meeting of the Drafting Committee in early June 1947. Some of the delegations that had at first supported the decision to delegate the drafting to their executive committee had second thoughts. The USSR delegate started the revolt by objecting to the bill's being drafted by what he called "a small group of experts" (AC.l/2/p. 2). He was joined by the delegates from Canada, Chile, Czechoslo­ vakia, and France. As a result of all this dissatisfaction the Council was ready to vote on a proposal to enlarge the drafting group from three to eight members, coming from Australia, Chile, China, France, Lebanon, the USSR, the U.K., and the U. S. Antici­ pating this change, Eleanor Roosevelt, as chair, quickly wrote ·the Council a letter in which she said the Commission would do what it was about to be told to do. The Coun­ cil was pleased and its resolution "Requests the Secretariat to prepare a documented outline concerning an International Bill of Human Rights" (p. 6). It then noted Roose-

6

Chapter t

velt's intention to "prepare, on the basis of documentation supplied by the Secretariat a preliminary draft of an International Bill of Human Rights" (p. 7). The enlargement of the Drafting Committee from the three executives to eight representatives made the drafting process more inclusive and enhanced the universality of the Declaration. The change in the wording of the mandate to Humphrey from being asked to write a "draft" to being requested to make a "documented outline" of one had no practical import. Humphrey tells us that he complied with this change of mandate by simply giving a new title to the document he had been working on since that meeting in Eleanor Roosevelt's apartment.10 After the Council met and asked for an outline he went to New York's Lido Beach Hotel for a week to finish his draft and to pre­ pare working papers for the Drafting Committee that was to meet injune 1947. These papers reveal the extent to which Humphrey grounded his first draft in existing ma­ terial and in the instructions he received from the First Session of the Commission and from the Economic and Social Council. He had before him a collection of drafts, from which he borrowed freely.11 This scavenging for the best articles from the various drafts made for an inclusive first draft and explains, among other things, why----there are social, economic, and cultural rights in the Uni��r��Declaration.12 that this set thelone for the restmtlie proceedings is evident from Oi.e sentiment that Geoffrey Wilson, the British delegate, shared with Humphrey when they crossed the Atlantic together. Wilson confided to Humphrey that "once the Secretariat had in­ cluded something in its draft, it was very difficult for governments to object to its being there," a comment Humphrey took to be about social and economic rights , which the British had not included in the proposal they had submitted,IS But it applies to the en­ tire range of the Declaration. Throughout all the d rafting stages the burden of proof fell on those delegations that wanted to delete a certain provision. With regard to con­ tent also, from the beginning the scales were tipped in the direction of universality. Humphrey tells us that "the best of the texts from which I worked was the one prep ared by the A�erican Law Institute [which Panama had introduced in San Fran­ cisco], and I borrowed freely from ff'�). He did borrow whole phrases from this draft for his own articles 2, 3, 6, 7, 11, 15, 20, 22, 26, 30, 36, 41, and 42, th e last two of which are concerned with the right to "social security." Another bill that influenced him greatly was the one submitted by the Inter-Americanjuridical Committee. He bor­ rowed from it for his articles 3, 5, 17, 28, 32, 33, 35, and 37, th e last four of which deal with the rights to a nationality, to asylum, to health care, and to socially useful work. Humphrey claims that none of the drafts before him had in it the right to a l egal per­ sonality and that that right was his own "invention" (p. 40). He took his entire article 46, which dealt !!_ith _the ri hts of p eople belonging to "ethnic, Iiilgui!itic or religious minoritf�s," from the draft Hersch Lauterpacht ha pu lsfied in 1945.1' _!.hough he freely and frequen tly used the drafts he had with him, it seems equal ly clear that this draft was Hu mphre y 's own creative mixture and molding of the options before him. We must conclude that this Humphrey draft is both the first and the basic d raft of the Universal Declaration, first in time and basic in that it became the basis for all further deletions and additions. This document, numbered E/CN. 4/AC . l/3 ofjune 4, 1947, is the first draft ofthe Universal Declaration.

The Drafting Process Explained

7

Stage 2

On April 8, 1947, Eleanor Roosevelt appointed the expanded, eight-nation Draft­ ing Committee. The June meetings of the First Session of that Committee constitute stage 2 of the drafting process. There was plenty of time for the results to be passed on to the Second Session of the Commission which was scheduled to meet that Decem­ ber in Geneva. The delegates were presented with the following four important docu­ ments: 1. Draft Outline of International Bill of Human Rights, also called Avant Projet de Ia Declaration In ternationale des Droits de l'Homme ( E/CN 4/AC .1/3/June 4, 1947). This is Humphrey's first draft of the Universal Declaration, which I discussed above. The word "draft" in the title simply means that it is the draft Humphrey prepared, the various versions of which are in the McGill University library. It is also called an "outline" because the Economic and Social Council had phrased its request to Humphrey in terms of a "documented outline" of a bill. Having done all the work, Humphrey could not simply withhold his draft, nor could he simply call it a draft since that is not what his new mandate called for. So he called it a "draft outline." He admits that he "might have interpreted [that request] as meaning merely a list of rights. I chose not to," he says, "and prepared a draft declaration, which was however always known as the Secre­ tariat Outline." 16 This is the first official draft of the Universal Declaration. Its predecessors, also drawn up by Humphrey and discussed by Hobbins, are not part of the official UN records.16 2. Documented Outline (E/CN.4fAC.1/3/Add. 2 ofjune 9, 1947). This document was put together a little later than the draft outline above and provides docu­ mented support for the articles in the "outline." The first part of this document contained observations made by delegates at the First Session of the Commis­ sion, De �larations, and proposals submitted by various countries and nongov­ ernmental organizations. The document is over four hundred pages long be­ cause in part 2 Humphrey collated each article of his own "draft outline" with provisions of the constitutions of the member states. For instance, the right to a fair trial, which was in a great many of the world's constitutions, was con­ tained in article 6 of the Humphrey draft outline. He or his staff did this for every one of his {orty-t;:ight_ar.tJcle s. The fact that almost all of the articles in the Declaration were matched with existing constitutions adds a great deal to the authority and universality of the document. 3. Plan of the Draft Outline of an International Bill of Rights/Plan de l.:1vant­ Projet de la Declaration Internationale des Droits de l'Homme. (E/CN.4fAC.lf3/Add.l ofjune 2, 1947). Just in case the Economic and Social Council had meant for Humphrey to draw up only a list of subjects for possible rights, this document would satisfy that demand. Here Humphrey simply lists the rights- not in sen­ tences -of his own draft outline and shows us the structure and "chapters" behind the list. It shows that the forty-eight articles of the Humphrey draft were selected according to a well-thought-out rationale. He gave the delegates five rules that he had followed in writing his draft: (1) the constitutions of -

.

8

Chapter I

member states were taken into account; (2) the bill should be acceptable to all the members of the United Nations; (3) the bill should be short, simple, easy to understand, and expressive; (4) it should be a reaffirmation of the most elementary rights; and (5) it should cover the basic classifications of rights. Humphrey claimed that his draft satisfied all these criteria and that he had based these guidelines on the comments made by delegates to the First Session of the Commission (AC.l/7). 4. The United Kingdom Proposal. The fourth crucial document which all the delegates of the Drafting Committee received was a United Kingdom proposal for an international bill of rights (E/CN.4/AC.l/4). The difference between this United Kingdom document and the Humphrey draft was that the former was drawn up more in the shape of a le�ally �i��i_ng covenant, while Humphrey's dra!:t was more a declaration of pri�_<:iples . . _ With all this and more material in front of it, the Drafting Committee of eight did not have to start from scratch. Immediately, a great many questions were raised about Humphrey's draft outline of forty-eight articles. In the second meeting Rene Cassin of France praised the outline of the Secretariat "as a solid and interesting basis for the work of the Committee. He suggested that this outline might serve as a basis for dis­ cussion from the material point of view" (SR.2fp. 2). After the delegates weighed the strengths and weaknesses of the British and the Humphrey proposals, they decided "to take the Secretariat outline as a basis for discussion" (p. 8). Roosevelt preferred the Secretariat outline because it "took into account many other documents in the form of Bills which had been submitted to the Commission of Human Rights. If nec­ essary, she said, the Committee should err on the side of including too much" (p. 8). Humphrey's painstaking preparations had paid off and his outline tipped the scales of the Declaration toward universality, in terms of both procedure and scope. Vladimir Koretsky, the delegate from the USSR, opened the sixth meeting with a proposal to set up "a small working group, of, say, three, plus the Chairman" (SR.6fp. 2). Over the objections of Geoffrey Wilson of the U.K. -who correctly sensed that his country's draft might not become the basis for the discussion- this idea was accepted. A "Temporary Working Group consisting of the representatives of France, Lebanon and the United Kingdom" was appointed. This small group asked Cassin to come up with "a logical arrangement of the articles of the Draft Outline supplied by the Secre­ tariat" and "to suggest a redraft of the various articles in the light of the discussions of the Drafting Committee" (p. 8). Cassin submitted two documents (which were soon combined into one) on behalf of this g rou p . The first of the two was Cassin's rewrite of Humphrey's articles 7 through 48,17 In the margin of this rewrite Cassin lists next to each of his "own" articles the Humphrey article being copied or rewritten. Comparing the Humphrey and Cassin texts I found only three completely new articles: 28, 30, and 44. Cassin took all the other ones either in whole or in part from Humphrey's so-called outline. He did what he was supposed to do and- through the marginal notations -gave Humphrey the credit he deserved. By my rough calculation three-quarters of the Cassin draft was taken from Humphrey's first draft.18 Cassin clearly overstated his role when in a 1958 lecture he explained that he had been "charged by his colleagues to draft, upon my sole responsibility, a first rough

The Drafting Process Explained

9

draft" of the Declaration.19 Humphrey was right when he went public in his memoirs with something he had known all along, namely that "Cassin's new text reproduced my own in most of its essentials and style." 20 Since so much of the Cassin rewrites came directly from the original Humphrey draft;-ir-liiakes-llo�sense-to..,_say�tnat�eassin ever made- an indeperrden:cdtafroftheDe"da:ration--:---- ---- - - - - ------At the end of the tenth meeting, the Drafting Committee asked Cassin "to pre­ pare . . . a revised draft of his proposal for Articles to be included in the Declaration" (SR.lOjp. 13). At the twelfth meeting this second Cassin revision (W.2/Rev.2), which did not have the marginal notations to Humphrey's text, became the basis of discus­ sion. This second revision, "submitted by the representative from France," was dis­ cussed in the rest of the meetings and it is the document from which the Drafting Com­ mittee's final recommendation to the Second Session of the Commission was shaped. From this point on-that is, at the end of the First Session of the Drafting Com­ mittee-all the revisions, both deletions and additions, were never again associated with any one person or country. While numerous documents were introduced or men­ tioned, the basic document for discussion was always the one that had been passed on by the preceding drafting stage or organ. Stage 3

The third drafting stage consists of the December 1947 Second Session of the full Commission. Though this eighteen-member Commission was larger than its eight­ member drafting subsidiary, the Commission sought to broaden its input in various ways. At all of its own sessions, as well as those of the Drafting Committee, numerous nongovernmental organizations were present. This Second Session of the Commis­ sion was attended by, for example, consultants of the following organizations: Ameri­ can Federation of Labor, International Federation of Christian Trade Unions, Inter­ Parliamentary Union, Catholic International Union for Social Service, International Union of Catholic Women's Leagues, Commission of the Churches on International Affairs, Co-ordinating Board ofJewish Organizations, International Abolitionist Fed­ eration, International Committee of the Red Cross, International Council of Women, Women's International Democratic Federation, International Federation of Business and Professional Women, World Federation of United Nations Associations, and the World Jewish Congress (E/600). Some of these organizations submitted their own drafts to the Commission. The opinions of groups that did not have consultative status were forwarded to the Commission by the Secretariat in forms of precis. Thus the Palestine Section of the War Resisters International asked that "a special provision be included relating to conscientious objectors." 21 The Comite Permanente Espiritualistas from Argen­ tina requested "that capital punishment be made unlawful in those countries where it still exists, as any form of violent death is un-Christian" (p. 2). Even the requests of individual citizens were recorded and passed on. A resident of Hartford, Con­ necticut, urged the Commission not to forget the plight of persons "living without a national status" (p. 7). All indications are that most of this more or less informal, non­ governmental input was appreciated and often used.22 At the opening of the Third Session of the Commission, on May 24, 1948, Roosevelt "read a telegram which had

I0

Ch11pter I

been received from the president of a conference of a hundred inter n ational non governmental organ izations [NGOs] being held in Geneva, wishing the Commission success in its work" (SR.42jp. 3). This Second Session of the Commission, which met in Geneva, produced what came to be called "the Geneva Draft." For drafting purposes this session split itsel f into three working groups. In the one on the Declaration were represe n ted the dele­ gation s of the U.S., France, the BSSR, Panama, the Philippines, and the USSR. In this working group the relations between the Cold War antagonis ts were the b est they were to be, wh i ch 'meant that much work got done . Since only eighteen nations were represented on the Commission on Human Rights and only eight on its drafti ng subs idiary, a way had to be found for the other thirty-eight members of the United Nations to help shape the bill. These others were given at least four opportu nities. The first opportunity was when Humphrey or his staff collated each article of the Humphrey draft with the provisions in the constitu­ tions of the member states. Also, at any time during the proceedings a country was free to submit its own draft of a bill. The followi ng countries did so, and in more than one case found their suggestions hotly debated and incorporated in the final bill: C hi na , the United Ki n g­ dom, France, Chile, Ecuador, Cuba, Panama, India, and the United States.23 In the final General Assembly debate, Malik, the representative from Lebanon, referred back to all this in put with the observation "that the present declaration had been drafted on a fir m international basis, for the Secretariat's draft was a com pilati on not only of hundreds of proposals made by governments and private persons but also of the laws and legal findings of all the Member States of the UN" (GA, p. 858). The second time the other thirty-eight countries had a chance to make their will known was when they were asked to comment on the Geneva draft that had been re­ ported out of the Second Session of the Commission. The following fourteen govern­ ments responded: Egypt, Norway, South Mrica, Pakistan, Canada, the Netherla n ds , Australia, the United States, New Zealand, India, Sweden, Brazil, France, and Mexico (E/CN.4/82). The Commission did take these responses into account. For example, the first sentence of Articl e 12 is based on a version proposed by the Chinese delega­ tion and was accepted over the version proposed by the Drafti ng C om m ittee . ­

Stage 4

Drafting stage 4 took place in May 1948, when the Second Session of the Commis­ sion's eight-member Drafting Committee me t. Mos t of this stage was spen t di s cussing a covenant because at this time many delegates were still holdi ng out for the adoption of both a declaration and a convenant as part of the i n ternational bill of rights . This choice b e tween j us t a declaration or both a declaration and a covenant created enor­ mous tension within the Commission and its drafting subsid iary and took a great deal of precious drafti ng time. These issues are discussed se parately in the next section.

The Drafting Process Explained

II

Stage 5

The fifth stage in the drafting of the Declaration comprises the meetings of the Third Session of the Commission. They began right after the May meetings of the drafting subsidiary had finished and ran to the middle of June 1948. The discussions at this fifth stage were very intense because the Commission was in the mood to cut down what many delegations considered to be the overly cumbersome draft that had come out of the Second (Geneva) Session of the Commission. The greatest challenge came from a series of joint proposals from the United Kingdom and India that cut down almost all the articles to their bare minimum. It was only at this rather late moment that the Commission decided it could only deliver a declaration to be acted upon by the Third General Assembly. Both the covenant and the measures for implementation were postponed. This postponement is the subject of the next section. Stage 6

The meetings of the Third (Social and Humanitarian) Committee of the General Assembly, held from September to December 1948, form the sixth drafting stage. Besides the Humphrey survey of constitutions and the input mentioned when the draft was submitted to governments for feedback, these Third Committee meetings provided a third opportunity for nations that had no representation on the eighteen­ member Human Rights Commission to have their say. Even though the Declaration had cleared the Second and Third Sessions of the Commission with impressive votes,24 this Committee scrutinized the entire document. Mter the Commission and its draft­ ing subsidiary had already devoted five lengthy sessions over a period of almost two years to the drafting of this document, the delegates of the Third Committee held eighty-five more meetings, not counting the twenty meetings of various subcommit­ tees. Malik, the delegate from Lebanon who had been the chair of the Third Com­ mittee, reported to the General Assembly on the wide support the document had re­ ceived in his committee. "Of the 1,233 individual votes cast," he said, "88.08 per cent had been affirmative and 3.73 percent negative." Eighteen of the articles had been adopted "without any opposition" (GA, p. 860). This Third Committee adopted the Declaration with a vote of 29 to 0, with 7 abstentions (GA, p. 860). At the beginning of the proceedings of this Third Committee Cassin had expressed the hope that "[t]he declaration of human rights was to be the expression of the rights of all the peoples of the world and not only the fifty-eight nations then constituting the United Nations" ( Third, p. 61). The comments made at the next and last drafting stage show that that is how many of his colleagues viewed their work. Stage 7

The seventh drafting stage was the debate in the Plenary Session of the Third General Assembly, which led to the adoption of the Declaration that same day, on Decem­ ber 10, 1948. This was the fourth time the rest of the UN membership could amend what the eighteen-member Commission had done. Both the General Assembly and the Third Committee met in Paris that year. While numerous amendments were pro-

IZ

Chapter I

posed, only one substantive change was made, which I discuss in the next chapter. About half of the time was spent on explanations of the abstentions to be discussed in section 1.4 below. The other half was taken up with self-congratulatory speeches about what the delegates felt they had done. Naturally they were proud of the inclusiveness of the drafting process. The delegates were tempted to move from that inclusive process to the claim that the product therefore had worldwide applicability. F. Corbet, a repre­ sentative of the U.K., observed "that the declaration was an international document representing a common denominator of agreement among most of the nations of the world" (GA, p. 884). Jorge Carrera Andrade, the representative from Ecuador, ob­ served that "throughout many centuries of political struggle to bring about human unity, the climax had now been reached with the preparation of the document in which 58 nations had expressed their common ideal and their identity of thoughts re­ garding fundamental human rights" (p. 918). The president of the General Assembly, Herbert Evatt, the representative from Australia, observed that this "was the first occasion on which the organized commu­ nity of nations had made a declaration of human rights and fundamental freedoms. That document was backed by the body of opinion of the UN as a whole and millions of people, men, women, and children all over the world would turn to it for help, guidance and inspiration" (p. 934). Evatt was not the only one who thought that some­ how all of humankind had been represented in the drafting process that had now come to fruition. Abdul Rahman Kayala, the representative from Syria, also noted that "civilization had progressed slowly through centuries of persecution and tyranny, until finally the present declaration had been drawn up." The Declaration was not, he said, "the work of a few representatives in the Assembly or in the Economic and Social Council; it was the achievement of generations of human beings who had worked towards that end. Now at last the peoples of the world would hear it proclaimed that their aim had been reached by the United Nations" (p. 922). This Third General Assembly adopted the Declaration at just about midnight on December 10, 1948, with a vote of 48 to 0 and 8 abstentions. 1 .J Original Intentions and the Cold War •

At the time the Universal Declaration was being drafted (1947-1948) the international consensus about human rights was an aggressive one. After the repeated condemna­ tions by the Allies of the Nazi violations of human rights and fundamental freedoms, many countries had come to look upon t�e United Nati ons as the new world organi­ zation that was to have some teeth in it. They did not want an organization that would be as impotent as the League of Nations had been when in the 1930s it failed to prevent Italy's conquest of Ethiopia and Hitler's taking of the Rhineland. Hence the strong desire to see to it that human rights talk was not just talk, but coupled with the necessary machinery of implementation and realization. These countries were therefore very encouraged by the references to human rights in the United Nations Charter and by the proactive attitude of the first two ses­ sions of the General Assembly. The first one condemned the treatment of Indians in

The Drafting Process Explained

13

South Mrica, urged that women be given political rights, called for an international conference on freedom of information, and condemned the crime of genocide.26 And the second one demanded that those countries which held territories in trust for the UN turn in annual reports which stated in great detail the observance of human rights in those territories. It also passed resolutions against all forms of propaganda that are a threat to peace or an incitement to a new war and it called upon member states to combat the diffusion of false reports which might injure friendly relations between states. This Second Session also engaged in an extensive debate on the "inalienable right" to form trade union associations (E/CN.4/46). Outside of the United Nations, the peace treaties signed with Rumania, Italy, Hungary, and Finland all contained provisions relating to human rights (E/CN.4/4). The governor of the Free Territory of Trieste was made responsible "for supervis­ ing the observance of the Statute including protection of the basic human rights of the inhabitants" (W.4/Add.l). International organizations, such as the International Labor Organization, the United Nations Education, Scientific, and Cultural Organiza­ tion, the International Refugee Organization, and the World Health Organization all drafted or redrafted their statements of purpose to include the realization of human rights for their respective constituents (W.4fp. 5). It was in this generally activist- and perhaps even interventionist- international atmosphere that the Economic and Social Council in February 1946 wrote the terms of reference which were to guide the Commission on Human Rights in its work. These terms of reference became the subject of heated debate and controversy, which is why I quote the key part in full. The Economic and Social Council mandated that The work of the Commission shall be directed towards submitting proposals, recommendations, and reports to the Council regarding: (a) an international bill of rights; (b) international declarations or conventions on civil liberties, the status of women, freedom of information and similar matters; (c) the protection of minorities; (d) the prevention of discrimination on grounds of race, sex, language or religion; (e) any other matter concerning human rights not covered by items (a), (b), (c), and (d) (E/248).

The difference between (a) and (b) is that in (a) the Council was thinking of a general international bill of rights, while in (b) it had in mind more specific "international declarations or conventions" on various topics. These more specific declarations or conventions are related to some of the subcommissions it was suggested the Commis­ sion create. Throughout the first two-thirds of the drafting period and well into the Third Session of the Commission that met in May and june 1948, the Commission was em­ broiled in a fight about these terms of reference. Most of the delegations felt that the phrase international biU o ri hts meant no less than a covenant, while the two super­ powers, the U.S. (most of the time) and the USSR (all the time), insisted t at a t e Council had meant was for them to raw up a without any mac inery of implementation a --- ---�-----

14

Chapter I

time and consumed an enormous amount of drafting energy. This spillage turned out to have benefits for the human rights movement, which the 1948 delegates had not thought of and could not foresee. At the first meeting of the Nuclear (organizing) Committee, Henri Laugier, who was the assistant secretary-general in charge of social affairs, said that he thought a bill of rights should include its own machinery of implementation. "Let us remember," he said, "that if this machinery had existed a few years ago, if it had been powerful and if the universal support of public opinion had given it authority, international action would have been mobilized immediately against the first authors and supporters of fascism and Nazism. The human community would have been able to stop those who started the war at the moment they were still weak and the world catastrophe would have been avoided" (E/HR.6jp. 3). The assistant secretary-general took an unabashed interventionist stance. Indeed, the Nuclear Committee felt "the need for an in�gency...of im�n, entrusted with the task of watching over the general observance of human rights, in order to prevent the recurrence of acts as monstrous as those which formed the prelude of the Second World War" (E/38/Rev.ljp. 5). The theme of the need for implementation had run through most of the presentations that had been made by a series of NGOs. William L. �_l.J_W_II, �P-_�I!�ing for the American Bar Associa­ tion, noted, for instance, that a "me r� declaration of princ�a-stiildlftas mi_ght in time effect world opinion and influence conduct and policies of many nations ii n �t all nauons;. -but we submit that more than that is needed-:w-HesatOthartlieABA was looking for "a new Bill of Rights that will be a part of law enforceable against govern­ ments which deny human rights" (E/HR.28/p. 12). When the Economic and Social Council established the Commission of Human Rights, on June 21, 1946, it took that opportunity to press the Commission to do more than write just a declaration. It wrote: "Considering that the purpose of the United Nations with regard to the promotion and observance of human rights, as defined in the Charter of the United Nations, can only be fulfilled if provisions are made for the implementation of human rights, the Council requests the Commission on Human Rights to submit at an early date suggestions regarding the ways and means for the effec­ tive implementation of human rights and fundamental freedoms, with a view to assisting the Economic and Social Council in working out arrangements for such implementation with other appropriate organs of the United Nations" (48/p. 18). Apparently, Laugier had adequately gauged the intent of the Council. At the first meeting of the First Session of the (full) Commission in late Janu­ ary 1947 Humphrey distributed wh at he called "the consolidated terms of reference of the Commission," which included the February 1946 request for advice on "an international bill of rights," but he failed to include the above cited amplification.l6 Humphrey told the Commission that there were three ways in which it could fulfill the Council's request for an international bill of rights: "a declaration or other act of the General Assembly, a multilateral convention, or an amendment to the Char­ ter::1W.4/p. 11). Of these three, only the last two-a conventaon or amendment to the C harter -would have been responsive to the original intent that the proclaimed rights also be implemented. Articles 108 and 109 of the Charter spell out a rather cumber­ some procedure for making amendments to the Charter and this mode of making the __

The Drafting Process Explained

IS

international bill effective was never seriously considered. That leaves a declaration or a convention or both . A convention is far more difficult to write because it is far more detailed than a declaration of general principles . It needs to be done by experts in i n ternatio nal law and takes a long time to write. Also, the states that sign a convention or covenant com­ mit themselves to tell " the au thorities " h ow they have imple mented the terms of the covenant in their own domestic legal systems. These promises often take the shape of further prom ises to write reports on the progress being made on the adapt ation of the domestic legal system to the newly accepte d international standards. In case of dis­ agreements about whether or not a state has ke pt a certai n promise, a state involved in such a dispute often promises to agree to voluntary arbitration p rocedures. Ulti­ mately, the only force involved is the sanction of international is olation . A declaration , on the other hand, is by comparison a relatively simple matter. The p ar ties need to agree on the principles to be proclaimed and the n proclaim them. Even though it is true that the diplomats who wrote the Universal Declaration were official representatives of their respective governments, which told them how to vote and what to submit, that fact by itself does not turn a declaration into a detailed, binding covenant. The truth is that nations can walk away from a de c laration far more easily than from a signed covenant. This is preciselY- �n why most of the smaller nation-states that were members of the United Nations in 194"8 wanteaacove nant -;.-;i�ns. alike and- not a mere declaiiHon. The-desire that would bind sm aif an of thes � ;mailer nations was thwarted because at c-ru�l.;fjunctures during the debates either the United States or the Soviet Union or both delayed or b lo cke d progress on the drafting of a covenant. The most insistent opp onents of a mere declaration were the delegates from the United Kingdom and Australia. In the First Session of the Commission the two superpowers took the i nitiative against a covenant. As Chai r and U. S. representative, Eleanor Roosevelt immediately set the tone by proposing that the Declaration be separated from its measures of im­ plementation . Her delegation felt, she said, that " the Commission should first prepare [the bill] in the form of a Declaration on Human Rights and Fundamental Freedoms to be adopte d as a General Assembly Resolution." In addition the same resolution "should make provision for subsequent preparation . . . of one or more conventions on human rights and fundamental freedoms" (EfCN.4/4). When the executives of the Commission were app ointed to do the drafting, Valentin Tepliakov, the USSR repre­ sentative, argued that this group had "no authority to consider the question of docu­ ments, or drafti ng of do cumen ts , for implementation of the Bill" ( SR . l 6fp . 2). Hansa Metha, the Indian delegate, wanted this executive group enlarged and said she did not like the idea of the " bill" as "a vague resolution including mystic and psychologi­ cal principles." What her cou n try wanted was "an i nstrument bjnding...nn_all.memher States" ; the Charter and the General Assembly ResolutiOilli . J!he felt,. called- for--a bill -witnari ·"im[fera1lve·cliiracte!'�-(�_R.15/p�2)� She was s uppor ted by Colonel William Hodgson , the repres en tative from Aus­ tralia, who wanted a "multilateral Convention binding member States" and not "a si m ple recommendation" (p. 2). He introduced his delegation's proposal for an Inter­ national Court of human rights, arguing that the "Commiss ion should not confine itself to abstrac tio ns but was bound to consider immed iate ly effective mach iner y

dJ�g�

for implementing Human Rights and fundamental freedoms in accordance with its solemn obligations" (SR.l6jp. 2). The idea of an international court was passed over rather qu ickly, but the objec tion that the Commission should not be satisfied with a mere declaration was supported by the delegations from Belgium, China, France, India, and Panama (SR.15/16). Hodgson began the First Session of the Drafting Committee by asking why the question of implementation was not among the list of items on the agenda. Roosevelt answered that the Commission first needed to "agree on what should be included in the Bill in the way of rights and that then the question of implementation might be taken up and considered very carefully." The U.S. government thought it would be "better for the Drafting Committee to work from the documented outline prepared by the Secretariat," and she repeated this plea at the next meeting (SR.4fp. 11). Bu t not everyone agreed.27 The Chinese representative, P. C. Chang, felt that the commit­ tee should produce three documents, a bill in s imp le terms, a commentary on that bill, and a series of proposals for impl emen tation (p. 11). The Australian delegation strongly objected to a mere bill; it wanted an act of Parliament, a convention, and an international court to implement that convention, to all of which Koretsky, the USSR delegate objected. He urged th at a "small working group" be appointe d .28 This led to th e small group that asked Cassin to do the re­ writes of the Humphrey draft, which document was taken as the basis for discussion. Ralph Harry, an Australian delegate, paid t ribu te to Cassin's work, but reiterate d that "a mere declaration of p rincipl es would not offer assurance against revival of oppres­ sion" (SR.7fp. 3), Wilson of the United Kingdom also objected and wanted to see two working groups established, one to work on a manifesto or declaration and one to work on a covenant. That second group could then take the text submitted by the United Kingdom delegation as its starting document (AC.l/4). This document was drawn up in the form of a legal convention to be signed by the member states of the United Nations. The Committee had to decide which document it wanted to take as the basis for further discussion, the U.K.'s or the Secretariat's. If it took the U.K. text as basic that would tip the scales in the direction of a binding covenant. And if it took the Humphrey (as revised by Cassin), or the Secretariat's draft as it was called, as basic, that would give the Declaration priority over the covenant . Upon the recommenda­ tion of the chair, the Committee decided to begin discussing those articles of the Humphrey text wh ich overlapped with the U.K. document.2e Since the British draft proposal for a covenant placed the implementation au­ thority of the covenant with the General Assembly of the United Nations, th is provided

Harry with an opportunity to defend his del egation 's proposal for an international court as a better way to implement the covenant. The ensuing discussion showed th a t there was not much support for such a court. Cassin, the French repres en ta tive , though t "the Australian prop osal would seem to be the normal step in the evolution of the world, but its realization at this time seemed un like ly " (SR.llfp. 11). Hernan Santa Cruz, the Chilean representative, "felt . . . that an international tribunal at this stage was utopian and someth ing for the future" (p. 12). The U.S. position at this time had shifted and was now s trongly in favor of a covenant to be drafted at the same time. o,.,.,.,.v,.Jt told her colleagues "that a Declaration with out impleme n tation would be

The Drafting Process Explained

17

a great travesty and deception to the peoples of the world." The Declaration and the covenant should be drafted "simultaneously," she said (p. 13). But that support was not to last very long. At the start of the Second Session of the Commission Roosevelt announced a change in the U.S. position. She now argued that "priority should be given to the draft Declaration, and that the latter should not be drawn up in such a way as to give the im­ pression that Governments would have a contractual obligation to guarantee human rights" (SR.25jp. 10). The United States was not ready for a convention. Charles Duke­ ston, a U.K. representative, went in the opposite direction. Because a declaration was "nothing more than a document of propaganda" he proposed that the Commission "immediately proceed" with the drafting of a convention (p. 11). "History showed," he said, "that Declarations imposing no juridical obligation had remained inoperative for centuries . . . . His delegation would never agree to the Commission elaborating a Dec�ation without a Convention." 80 Since the United Kingdom held out for an ali­ or-nothing position- that is, a declaration and a covenant-and since there probably was not time to do both, there was a real danger that nothing would be proposed to the Third General Assembly of 1948. Hodgson maintained that the Commission's task was to draft a bill of human rights, not a declaration, which, he felt, entailed no legal obligations and would not in any way affect the lives of men and women unless translated into concrete action" (SR.27jp. 5). "If it was merely a recommendation, the peoples of the whole world would be disappointed and the commission would have taken a hypocritical decision" (SR.28jp. 6). Carlos P. Romulo, the delegate of the Philippines, made the case for the Covenant by arguing that the "response of the South Mrican Government to the General Assembly's resolution about its treatment of Indians showed to what extent a mere resolution could be ignored . . . . He said he wanted to make it clear that, while he favored the drafting of a Declaration, he considered it was incidental to the main task of drafting the Bill of Rights and some form of international agreement to secure implementation thereof" (SR.29jp. 3). Mter several days of at times heated debate, Alexandre Bogomolov of the USSR "formally moved the closure of the discussion and proposed that "the Commission proceed without delay to consider the draft Declaration on Human Rights submit­ ted by the Drafting Committee and postpone the present discussion until after the draft has been considered." 31 In their opposition to an immediate consideration of a covenant, the two superpowers were agreed and Roosevelt said that her government "would support the Soviet Union proposal provided that it was clearly understood that it did not exclude the possibility of work being started on the Convention" (SR.29/p. 5). But the discussion continued for several more days. Finally, the Belgian delegation placed on the table a compromise proposal that the Commission "immediately" set up three working parties "to deal respectively with the problem of the Declaration, the Convention or Conventions, and implementation" (E/CN.4j44). Fernand Dehousse, the Belgian delegate, argued against a mere declaration. Such an "academic vote," he said, "might even endanger the Commission's existence and would cause immense disappointment to a world that was awaiting positive solutions capable of influencing human destiny. . . . He pointed out that behind the divergences of view on procedure lay disagreement on matters of substance. A certain number of

18

Chapter I

representatives seemed resolved to go no further than a Declaration, whilst others de­ manded the immediate formulation of one or more Conventions" (SR.28fp. 2). Over objections from the U. S. delegation, this Belgian proposal was adopted by 9 votes to

5, with 1 abstention (SR.29fp. 4). The third paragraph of the proposal stated that the "first working party (Declaration) would begin its work immediately," while the other two "would begin work as soon as the Secretariat services were in a position to assist them"

(E/CN.4f44). In this way the declaration was given a head start.

The reports from the three working groups were discussed by the Second Session of the Commission.81 The report of the Working Group on the Declaration, which included representatives of the BSSR, France, Panama, the Philippines, the USSR, and the U. S., was adopted by 13 votes to 1, with the four Communist delegations ab­ staining.u When it came to voting on the draft covenant, these same four countries abandoned their policy of abstaining and voted against the proposals. Bogomolov observed that his delegation from the beginning had "emphasized that [the Commis­ sion's] primary task was to make a careful study of the Draft Declaration" and that for that reason he had voted against the proposed covenant.8• After the Second Session of the Commission the declaration and covenant drafts had been sent to member governments for comment. Probably as a result of this feedback and due to behind-the-scenes lobbying, the Second Session of the Drafting Committee devoted all of its time to the covenant. Toni Sender of the American Fed­ eration of Labor "thought it encouraging that many governments had commented favorably on the question of implementation" (SR.21fp.

5). The United States, too, had

once again decided to back the draft covenant more actively. Roosevelt thought that perhaps both a declaration and a covenant could be passed by the Third General As­ sembly (p.

4). This created a definite momentum for the drafting and polishing of the

covenant, and the Committee decided in a close vote of 3 to 2, with 2 abstentions, to spend most of its time on the draft covenant (p. 9). It twice went over the articles of the covenant that had grown out of the U.K. draft and spent no time at all on the draft dec­ laration. It seemed as if the covenant wouid become the Declaration's equal after all. The only opposition to a covenant came from the Soviet Union, and even that was not what it might have been. Alexie Pavlov began with a sharply worded Cold War speech, but his attitude during the remainder of the Session was quite concilia­ tory. Though it was the official Soviet position that "the drafting of a Covenant was premature," Pavlov made more than the usual number of positive suggestions.95 This attitude of cooperation coincided with a temporary lifting of the Berlin blockade, but it proved to be the last thaw.

The breakthrough came in the Third Session of the Commission. Sp eaki ng as chair, Roosevelt suggested that one week each be spent on the Declaration, on the covenant, and on the measures of implementation. This, she said, would fulfill the mandate of the Economic and Social Council (SR. 46/p.

4).

Cassin wanted to discuss

the Declaration first and Pavlov wanted to start over with a discussion of general prin­ ciples. After Cassin made the point that "the Declaration was the first document on which agreement could be reached," a French proposal that uncoupled the Declara­ tion from any measure of implementation, including a covenant, was adopted by nine votes to two (p.

6). The breakthrough was

that the United Kingdom delegation sup-

The Drafting Process Explained

19

ported the French proposal and i n doing s o gave up its ali or noth ing position. The minutes state that "Mr. Wilson (U.K.) supported the proposal of the French repre­ sentative. The Commission had always examined the two documents separately and changing methods at that session might lead to confusion. Moreover, the aims- of the Covenant and of the Declaration were different and each of those two documents was a unit that had to be examined as a whole" (p. 3). This was a remarkable turnaround for a delegation which all along had insisted that a mere declaration was worthless and perhaps even damaging, and that of the two documents the covenant was the key part of the international bill of rights. In a later essay Cassin takes credit for this softening of the British view on the worthlessness of a mere declaration. He correctly notes that if the delegates had in­ sisted on the achievement of a convention, they would have run the risk of letting a politically favorable p eriod slip by. '�lready," he writes, "the Cold War had begun and threatened to compromise the adoption of a declaration, as well as of a convention." Luckily Harold Laski, a friend of Cassin's, "was able . . . to exert favorable influence on [Clement] Attlee with respect to the immediate adoption of a [mere] declaration." 96 I have not verified Cassin's version of what happened, but there can be no doubt that the withdrawal of British opposition was the major reason the Third Session of the Commission was able to focus all of its attention on the Declaration. That this hap­ pened was probably essential to the adoption of the Declaration in 1948. Toward the end of the Session Roosevelt once more- almost wistfully- "stressed that the Economic and Social Council had instructed the Commission on Human Rights to submit to it, in final form, a draft International Declaration, a draft Covenant and provisions for their implementation, and asked the members of the Commission whether they thought they would be able to fulfill the task imposed upon them by the Council at the present session" (SR.48fp. 3). The Commission answered that it would. But it knew that it would not, for that was precisely the impact of the French proposal, which placed the Declaration first. In fact, in that same meeting Roosevelt quoted Abraham Lincoln to make the point that there is a crucial difference between the having of a right and the implementation of it. Lincoln had said that the authors of the American Declaration of Independence "did not mean to assert the obvious un­ truth that all men were then actually enjoying that equality or that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right so that enforcement of it might follow as soon as circumstances should permit" (p. 6). If President Lincoln could split the two, then so could the Commission on Human Rights, mandate or not. As the irony of history had it, what worried many of the delegations -that their declaration was not attached to or accompanied by a covenant- has proved to be a very beneficial feature of the document, one that has helped rather than hindered the process of implementation. When the Third General Assembly adopted the Dec­ laration it also passed a resolution calling for speedy completion of the covenant the Commission had been unable to finish. In the course of these further discussions the Commission decided to split the single covenant into two. The result was that in 1966 two international covenants were opened for signature, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and -

-

20

Ch•pter I

Cultural Rights. These came into force when enough signatures had been collected from states, in 1976. Together these documents are included in the International Bill of Human Rights, published by the United Nations Office of Public Information.s7 At the heart of this triune bill lies a separation of moral rights from later adopted concrete measures of legal implementation. While the Charter gave birth to the Dec­ laration, the Declaration in its turn gave birth to these two covenants and to a host of other more regional instruments of implementation. The fact that the Declara­ tion itself is not intertwined with any piece of this machinery of implementation gave it from the start an independent moral status in world affairs and law. More than fifty years after its adoption it now is the mor�l backbone and source of inspiration of a whole new branch of international law, Before World War II there were almost no i ute�ti�l_ i!l_!t�uments concerned with the realization of human nghts. Smce then !llt! sEow_thJ.tas been phenomenal, so that today there are around two h undred . assorted_declarations, conventiP.o� • . proto.cols, treaties, charters,_anctagreemen_ts, all dealing with tf!«!_ �aJi�ation g_f'_human rights in the world. Of these postwar instru­ ments_no_few.er_tb_a�!�ty:five tnention in their prefaces or _p rea!Jl�le s_.tlie Universal Declaration of Human Rights as a source of au thority ancljnspi��tion.98 -------- - -- . . Hurst Hannum's recent survey confirmed these figures. He found sixty transcendences in domes tic constitutions, at least tw�nty-six of which explicitly acknowledged the authority of the Universal Declaration over th��stic legal s�eiil.s in q�es­ tion.�9.This is not to say that this Declaration is the only factor in the spread of human rights law after the ending of World War II, but these tallies do show that the Uni­ versal Declaration was a very impor tant factor. The Declaration could play that role only and precisely because it was not enmeshed in any local, regional, or even inter­ national instrument of implementation. There are signs that internationalists are starting to recognize that the separate adoption of the Declaration in 1948 might not have been so bad after all and may indeed have been a blessing in disguise. In his chapter entitled " Human Rights in Contemporary World Society," R.J. Vincent observes that human rights arrangements at the regional level are made to carry global standards into

all the provinces of international politics. The United Nations has itself encouraged the estab­ lishment of European, American, Arab, and Afri c an Institutions for this purpose, and, for their part, the regions have seen themselves as the local carriers of a global message. This benign view of the discrimination between reg ions in the matter of human rights is made possible by the idea that while th e standards are universal, their implementation will be the more successful the closer the attention to local circumstances. States . . . are more like ly to accep t machinery for implementation if it is established among a group of neighboring and like minded countries than if it allows the snooping of strangers.4D

The "global message" and "universal standard" of which Vincent speaks must be that of the Universal Declaration. Aside from the Charter references, which by themselves have almost no content, there is no other candidate to inspire the "local carriers" and give them something to carry.

Zl

The Drafting Process Explained

1 .4 The Eight Abstentions

Throughout the drafting process repeated pleas were made to draw up a declaration that was acceptable to all the participating states. This was no empty request, for ac­ cording to Philippe De La Chapelle's calculations, thirty.:Seven of the member nations stood in the Judea-Christian tradition, eleven in the Islamic, six in the Marxist, and four inthe Buddhist tradtt10n.4t 1t is not crucial that this tally be exact, !or what it shows _:;-nd the intensity of the discussionSbearsthis out- is that the drafters repre­ sented different cultural, religious, economic, and political systems. Everyone was aware of the fact that to fulfill their mandate they had to overcome these differences. At the start of the proceedings Romulo of the Philippines said that the Commission had to draft a bill "which could be accepted by all Members of the UN and [that it] . . . should take the different cultural systems of the world into account."42 In the First Drafting Session Santa Cruz of Chile observed that the "different ideologies need[ed to] find common ground." A way of stating things had to be found which was not vague, but still "sufficiently flexible to cover all systems," said Cassin (SR.6/p. 5). Given this tremendous drive toward universality, we need to ask why eight nations abstained from voting in theJirutl roll call. They all knew how historic the occasionwas. These eight abstentions came from the USSR, the Ukrainian Soviet Socia!ist ��E_�blic (UKSSR}Jh_�:t\S�gasiaVla;::Y-Oland.��outh-Africa, and Saudi Arabia.45 Their rea­ sons for abstaining differed, but it is important to note fhanrone -ofthese countries voted against the Declaration. If any thought that there were no such things as human rights, their behavior and most of what they said did not show it. Even the abstaining delegations had cooperated in the procedures. They too had sent delegates to the ses­ sions and these representatives had made comments, voted numerous times, and even submitted drafts or amendments, all of which is odd behavior for a delegation that is fundamentally opposed to the project. They abstained, they said, either because the Commission had gone too far or because it had not gone far enough. But they did not say that the whole enterprise had been a mistake. ·

The Six Communist Abstentions

The largest single bloc of abstentions came from the six Communist nations. Aside from a few nuances, these countries spoke with a single voice and said roughly the same thing from start to finish. For the great occasion of the General Assembly de­ bate, the Soviet delegation was. headed by An�rei Vyshinsky, who was the prosecutor of the infamous Stalin Rurge trials His �ch was the most ideological one given by that delegation and the only one that came close to questioning the whole project. He began by saying that though "the declaration contained a number of positive ele­ ments and was not without merit, it did not befit the General Assembly to issue such a document on behalf of the United Nations, precisely because [ofJ the significance that a declaration of Human Rights ought to have" (GA, p. 923). He then took most of this acceptance of human rights back in an eloquent and deeply cutting speech on the relationship between the individual and the state, at times taking a legal positivist approach to the matter of human rights. "Human rights," he said, "could not be conceived outside the State: the verv con-

ZZ

Chapter I

cept of right and law was connected with that of the State." If such rights were not protected and implemented by the State, they would become a "mere abstraction, an empty illusion, easily created, but just as easily dispelled" (p. 924). He pointed out that many delegations had stated that in the Soviet Union the individual had been "subordinated to the state, making of the individual some sort of cog in the all­ powerful State on the lines of Hobbes's Leviathan" (p. 928). These delegations had forgotten "that the contradiction between the State and the individual was a phe­ nomenon which had occurred in history when society had been divided into rival classes," the ruling one which oppressed those being ruled (p. 929). In that case, and therefore in most of history, there had indeed been a conflict between the individual and the state which sought to oppress that individual. But, he went on to argue, "cir­ cumstances were wholly different in a society where there were no rival classes . . . for in such a society there could not be any contradiction between the government and the individual, since the government was in fact the collective individual" (p. 929). Historically speaking, the problem of the state and the individual had been solved in the Soviet Union, "where the State and the individual were in harmony with each other, [and] their interests coincided" (p. 929). We can see in Vyshinsky's speech the problem of ideology which the Communist nations faced with respect to their participation in the drafting of the Declaration. From a purely ideological point of view they probably should have voted against the documentbecause "human rights could not he conceived outside the-State-[and] the f very c op.cepfofr1glit an( taw was connected with iliat oHlie State:"Sucha strict posi­ f tivist re�g woul( havcd)eencons fstent with the rest of M�rxist doctr ine about the origin of values. With the alleged disappearance of the tension between the individual and the state, there was, from the Marxist point of view, no need for the Declaration to remain as silent as it was about the role of the state.44 He ruefully noted that all of the Soviet amendments that contained state references had been rejected.411 A discussion involving Article 29 provides us with a vivid example. That article says in the second paragraph that a person's rights and freedoms may be limited for the purpose of "meeting the just requirements of morality, public order and the I general welfare in a democratic society." The Soviet delegation wanted the Third Committee to add the provision "and also [for the purpose of] the corresponding re­ quirements of the democratic state." Pavlov couched his rationale for the amendment in the language of implementation, but his opponents responded on a deeper level. Pavlov claimed that "all rights laid down in the declaration would be implemented in democratic societies by the democratic States. The law," he added, "was nothing with­ out the machinery to impleme nt it, and at the present time, that machinery was the State. It was impossible therefore to ignore the requirements of the democratic State" (p. 644). Vyshinsky's speech revealed the same ambivalence between the language of implementation and the charge of meaninglessness. If all that was at stake was the need for implementation, then-so it could be argued- the Soviet amendment should be discussed as part of the covenant or of the measures of implementation which the Commission was also considering at that time. The Soviet proposal for Article 29 was rejected by a vote o£ 23 to 8, with 9 absten­ tions (p. 663). A. M. Newlands of New Zealand, said that her delegation would reject this iJUection of the state because "an escape clause . . , should be as narrow as possible

The Drafting Process Explained

Zl

if the statement of rights and freedoms was to have any real meaning" (p. 645). Be­ nigno Aquino, a delegate from the Philippines, struck even closer to the philosophical heart of the matter: "The USSR amendment," he said, "by raising the State above . . . soc iety, would destroy the intent and meaning of the article. Since the definition of 'the corresponding requirements' of a State would lie with that State, it could under the terms of the USSR amendment annul individual rights and freedoms contained _in the Declaration" (p. 648). Greek and Lebanese delegates made similar comments (p. 651). These rebuffs could have been grounds for a negative vote on the part of the Communist nations, but because they were in a bind, they abstained instead. They shared with all the other delegations an abhorrence of what Hitler and his Nazi cronies had done. The main reason they participated in the drafting of the Declara­ tion was to condemn Nazism and fascism and to save the world from a recurrence of the horrors these belief systems bring with them. However, to condemn fascism, one must have a leverage point outside of that ideology. The other drafters had that point in the notion of a human right that all people have or possess even over against their own states. The Communists had to choose whether to adopt the language and con­ cepts of human rights and thus be able to condemn fascism, or to adopt the positivist line of Vyshinsky took, according to which there really are no such things as human rights. Taking that positivist line would leave them no ground from which to condemn the Nazis. The Declaration cannot be used to condemn the atrocities of the Nazi state and yet in no way transcend domestic legal systems. By being silent about the state, the Declaration transcends the state and all domestic legal systems. And that moral transcendence is the ground of the condemnation. If the Communists insisted on a legal positivist interpretation of human rights, they would be able to press their amendments protecting the sovereignty of states, but it would deprive them of a chance to join the rest of the world in its condemnation of Hitler. But they wanted to condemn him even more than most of their colleagues. In one of the first meetings of the Drafting Committee, Vladimir Koretsky, who was then the main Soviet delegate, pointed out "that the United Nations must first fight the remnants of fascism. Having beaten fascism it must formulate a Bill of Rights which would prevent the rebirth of fascist systems and fascist ideology" (SR.5jp. 7). The deep animosity that exists between Marxist egalitarianism and Nazi racism led the USSR delegation to propose amendments to what became Articles 19 and 20 stating that fascists and Nazis did not have human rights to freedom expression and associa­ tion. When those amendments were rejected the Communists, rather then abstaining, which was their custom, voted against these articles. The other Communist delegations also linked an affirmation of human rights with a condemnation of Nazism and fascism. Ljuba Radevanovic, the Yugoslavian repre­ sentative to the General Assembly, said that "the declaration of Human Rights drawn up after the terrible trials humanity had undergone as a result of fascism, could not remain passive before such an enemy. The principle objective of the new declaration of Human Rights should not have been simply to enumerate those rights," but more so to claim that "Fascism should be denied the right to use democratic institutions for its fight against democracy" (GA, p. 915). Leonid Kaminsky, the Byelorussian repre­ sentative, also bemoaned the fact that "there had been no mention in the Declaration

24

Chapt.,. I

of democracy's struggle against fascism and Nazism. That struggle was an essential ele­ ment in the protection of the rights of the individual" (p. 897). Juliusz Katz-Suchy, the Polish representative to the final debates, also was very explicit about how to protect human rights. "It should be emphasized," he said, "that fascist ideology was based in part on the violation of human rights and [that] . . . respect for Human Rights would only be assured by condemning fascism, by combat­ ing its remnants and by creating conditions of such a nature that no fascist regime could spring up again in any part of the world" (p. 905). In their ardent desire to condemn fascism and Nazism, the partners of the USSR were more explicit in their acceptance of the idea of human rights. They repeatedly made the point that to pro­ tect human rights adequately, the Declaration needed to explicitly condemn these two movements. Since it did not do that, they would abstain from the vote. As the Polish delegate put it, "Poland, whose cultural life had been suppressed by Nazi Germany throughout six long years, was being confronted with a Declaration allowing fascism full freedom of action" (p. 907). It is this sentiment of moral revulsion leading to judgments of condemnation that made the Communist delegations participate in the process of writing the Dec­ laration, it made them offer amendments, attend meetings, and sometimes-in spite of the rhetoric-even vote. The eight Communist abstentions are therefore not nearly as damaging to the universality of the Declaration as outrigh� rejections would have been. The Saudi Ara bian Abstenti on

The Saudi Arabian delegation abstained in the final vote mostly for two reasons: be­ cause of the wording of Article J�_on equal marriage rights and because of objections to the clause in Article 18 which states that everyone has the righ�to_chang� hi�eli­ gion_OJ:: belief." The Saudi Arabian delegation proposed a wording for Article 16, which it felt would not conflict with the marriage laws of most Muslim countries. The Third Com­ mittee rejected that amendment. It read as follows: "Men and women of legal matri­ monial age within every country have the right to marry and found a family."46 This wording leaves out the present nondiscrimination clause, according which no limita­ tion should be placed on this right due to a person's religion and which therefore objects to the Muslim interdiction to marrying someone of another faith, if one is a Muslim. Defending the Saudi proposal, Jamil Baroody "emphasized the fact that app ar­ ently the authors of the draft declaration had for the most part taken into consider­ ation only the standards recognized by Western civilization and had ignored more ancient civilizations which were past the experimental stage, and the institutions of which, for example marriage, had proved their wisdom through the centuries. It was not for the Committee to proclaim the superiority of one civilization over all the others or to establish uniform standards for all the countries in the world" (p. 370). It is interesting to note that earlier in the discussions Baroody had observed that the fact that the Declaration was "frequently at variance with the patterns of culture of

The Drafting Process Explained

25

Eastern states, that did not mean, however, that the declaration went counter to the latter, even if it did not conform to them" (p. 49). The Saudi delegation had not been a member of the Commission on Human Rights. Thus at the Third Committee stage Baroody "was surprised to find that the Commission on Human Rights had sponsored an article wherein, after stating those three freedoms [of thought, conscience and religion] it had concentrated exclusively on religion and the right to change religious beliefs, without any mention of the right of the individual" to change his or her mind in the other two areas mentioned.47 This was the kind of thinking which he �aid had led to the crusades and religious wars. He therefore urged that the words "f�om to change his religion or bel.!_ef" be "omitted" from the text (p. 392). Support came from delegations who felt that the simple state­ ment that "everyone has the right to freedom of thought, conscience and religion" would be sufficient. Some of these were delegations from other Muslim countries. A. Abadi, the delegate from Iraq, supported this Saudi effort, as did his colleague from Syria, Abdual Rhaman Kayala, who thought that the shorter version said "all that was required by contemporary civilization" (p. 403). The latter abstained from voting be­ cause his own country's constitution "guaranteed the right to freedom of religion." The Saudi Arabian delegation did not think this right needed to be spelled out quite so clearly. Because the article went out of its way to mention this specific right, the Saudi delegation felt that it "violate[d] the spirit of the other articles of the Decla­ ration. The article would have the unfortunate effect on many people in many parts of the world and there did not actually seem to be any need for such an insertion" (p. 407). Several Latin American delegations also supported the Saudi Arabian position. Eduardo Anze Matienzo, the Bolivian delegate, thought a more to the point text would have been better. So did Eduardo Plaza, the delegate from Venezuela, who wanted this article to be drawn up with "the same simplicity as had been employed with many of the other articles" (p. 400). Guy Perez Cisneros, the delegate from Cuba, thought the article "placed too much emphasis on the individual's right to change his religion, and thus weakened the absolute value" of the ideas expressed (p. 409). Bo­ dil Begtrup, the Danish delegate, abstained from the vote on Article 18 because "the adoption of the second phrase would mean that the representatives of 300 million Mohammedans would be unable to support the draft declaration" (p. 407). Arguing for the retention of the clause were the Indian, Lebanese, Philippine, and French delegations. Mohammed Habib, a delegate from India, reported to his colleagues that the Indian constitution l.nCiilll�d "the right to convert or be converted; that applied to the 40 m�llion Moslems OfTndta as Well as-to-1tll-otherr.Tire-1rdoptioif of the Saudi amendm�t would be "a tragedy;''lie said (p;-40'1). Kanm Azkoul, the Lebanese delegate, said that this provision was needed because the Declaration was also meant to protect a man's "inner being" and "the possibility of each individual to determine his own destiny. That was the reason for the special mention . . . of the free­ dom for an individual to change his belief, as such change might be at the root of a new spiritual impulse" (399). Cassin "recognized that it was a delicate matter for the holders of certain reli­ gious beliefs to see it proclaimed that all men had the right to change their beliefs."

Z6

Chapter I

He felt, however, that the Third Committee "must adopt all the consequences of that proclamation; and one of the most important corollaries of freedom of thought was the freedom of the individual to change his opinion" (p. 397). Aquino of the Philip­ pines thought that "the precedents of the crusades and the wars of religion . . . clearly demonstrated the utility of provisions designed to prevent repetition of such conflicts" (p. 396). Baroody asked the French representative "whether his Government had con­ sulted the Moslem peoples of North Mrica and other French territories before accept­ ing that text, or whether it intended to impose it on them arbitrarily. He also asked the other colonial powers, notably the U.K., Belgium and the Netherlands, whether they were not afraid of offending the religious beliefs of their Moslem subjects by imposing that article on them. He reminded the representative of Lebanon that 40 percent of the Lebanese population was Moslem, and asked him whether the whole of that population had authorized him to approve Article 16 [18] in toto." In addition, he argued that the clause about changing one's belief was "superfluous, as that particular freedom was implied in the principle of freedom of belief" (p. 404). The Saudi amendment to drop the disputed clause from the article was rejected by 22 votes to 12, with 8 abstentions (p. 406). In an essay he wrote later, Cassin points outs that the presence of Article 18 had nof-.9revented other Muslim countries, like Syria, Iran, Thrkey, and Pakistan from vot­ ing fqr.:J!!.e Declaration.48 He ha!La point. In the Third Committee detiates on proce: dure, Shaista S. Ikramullah of Pakistan had said that "her delegation fully supported the adoption of the declaration because it believed in the dignity and worth of man [and · because] it was imperative that the peoples of the world should recognize the existence of a code of civilized behavior which would apply not only in international relations, but also in domestic affairs" (p. 37). The South African Abstention

The Union of South Mrica abstained from approving a document which it knew the United Nations would use to condemn South Mrican practices. Already in 1946, the First General Assembly had interceded in a dispute between India and South Mrica about the treatment of Indians in the Union. Two-thirds of the Assembly had urged the two countries to start negotiating and they had expressed the wish "that the treatment of Indians in the Union shall be in conformity with . . . the relevant [human rights] provisions of the Charter." 49 South Mrica did not cooperate in this matter. When the League of Nations was formally dissolved in April l946, nations that after World War I had been given territories to govern under a League mandate were asked to transfer that mandate to the new United Nations Trusteeship system. South Mrica was the only country which "refused to place her mandated territory [South-West Mrica] under" that new system,Do As a result of these refusals South Mrica has the dubious distinc­ tion of being the first country to be censored or admonished by the United Nations. At first glance the South Mrican position on the Declaration seems straightfor­ ward. While the Communists thought the Declaration did not state enough, the South Mrican government thought that it said way too much. Speaking in the General As­ sembly, just before the vote, Harry Andrews repeated the South Mrican theme that

The Drafting Process Explained

Z7

"the draft declaration submitted to the General Assembly went far beyond the rights and freedoms contemplated in the Charter. It was clear from the provisions of the Charter," he said, "that social, cultural, and economic rights had never been intended to he included in the draft declaration" (GA, p. 911). E. H. Louw, his colleague on the Third Committee, had pressed this same point. He said that the rights the Charter spoke of were those "fundamental ones, the uni­ versal applicability of which was recognized all over the world" (p. 39). They were the basic ingredients of human dignity and he did not see "how that dignity would be im­ paired if a person were told fu!lt he could not live in a particular ��ea" (P,39). For the 1948 SouthMric�� go�ment those rights -were"elementary-and essential" which "are indispensable for physical and mental existence as a human being" and it is only those that the United Nations should be worried about. Anything else would do vio­ lence to the mandate of the Charter. "What the Charter envisages is the protection of that minimum of rights and freedoms which the conscience of the world feels to be essential, if life is not to he made intolerable at the whim of an unscrupulous govern­ ment." 51 For the South Mrican government most of the Declaration did not fit this criterion. On the surface, its position looks like a short, conservative list of such rights as "freedom of religion and of speech, the liberty of the person and property and free access to courts of impartial justice." 52 However, upon closer scrutiny the South Mrican position can be seen to have been erected not because of its philosophical merits, but for the protection of the system of apartheid, which clearly violates any number of articles in the Declaration. Article 13 on the right to freedom of movement within one's own country and between countries was put in the Declaration to prevent governments from placing people in ghettos and thus segregating them as being of a lower status than the rest of the popu· lation, as Hitler had done and as the South Mrican government did when it created the various "homelands." Louw objected to the thesis "that human dignity would be impaired if a person were told he could not reside in a particular area." In certain lim­ ited circumstances this may well be true, but Louw's explanation is tainted with a dis­ crimination based on race. Such discrimination is expressly forbidden in Article 2 of the Declaration, which the South Mrican government said it accepted. Louw tipped his hand in his admission that the thesis of freedom of movement "would destroy the whole basis of the multi-racial structure of the Union of South Mrica and would cer· tainly not be in the interest of the less advanced indigenous population" (p. 39). In its written comments on the Declaration, the South Mrican government ex· plained the need for what would later he called "homelands" as arising from the requirements of "peace and good government," which in turn required the govern· ment to "restrict the influx of large numbers of unskilled laborers into urban areas'' and because "individuals may need to be required to work in specified industries.'' &! This rationale for the abrogation of numerous basic rights obliterates the distinction between government action based on social policies and that based on principles oJ justice. If rights are derived from considerations ofjustice then they should be able tc trump government policies of the kind the South Mrican government deemed "good' for the country. No other governments had bothered to comment on this right tc freedom of movement and the South Mrican rationale stems not from its conservativt philosophical position, but from the ad hoc requirements of apartheid.

ZB

Ch11pter I

A good test for the sincerity of the Union's case is its pos ition on the ri gh t of a person to p artici p ate in the gove rnment of his or her country, for that ri gh t is usually included in even the most conservative packages. According to Louw, sp eaking in the Third Comm i ttee , the righ t to so participate "was not universal; it was conditioned not only by nationality and country, but also by qualifications of fran ch is e ," which in his country- and this he did not add-included race (p. 39). Accord ing to the South African Constitution of that day, only a " pe rson of European descent" could be a memb er of the House of Assembly or the Senate.a. Even if the black population of South Africa had not been barred from participation in the government of their country because of where they lived -which they were - the government's comments on voter qualifications also effectively excluded them. The racial factor was couched in "harmless" comments about the inability of "convicts, aliens, and in some cases absentee voters" to p ar ticip ate in an election. "Nor can a person [vote] who cannot comply with property and literacy or educational qualifications where such . . . are in vogue." 55 Like th e ji m Crow laws in the United States that barred Mrican Americans from voting, here too the racism is hidden in other qualifications. In the same way the South Afri can government sought to gut the r igh t to freedom of assembly with the reservation that its minister of justi c e should be able to "proh ibit a public gathering, i f . . . the gather ing will engender feelings of hostility between European inhabitants of the Union on the one hand and any other section of the inhabitants of the Union on the other hand" (82/Add.4jp. 19). It is one thing to construct and defend a �!.vative approach to human rights and to want to�p_!be.Jis.LDLentitlements as short as possible. but that high legal groundCanru;t be bought with rae��: c�in . This abstention by the Union C?f South Mridt;Eks integnty and does not detract from the universality of the Declaration.

-----' . s Authors, Title, and Addressees

This survey of the drafting process has shown that there is no such thing as "the au­ thor of the Declaration." Humphrey wrote an excellent first draft, but the process used to amend that draft was a very inclusive one. Numerous official re pres e nt ative s from dozens of countries made hundreds of amendments in hundreds of meetings and cast more than a thousand votes. The drafting structure was such that the entire United Nations membership was given a chance to p ar ticip ate and actually did so (s ee 1.2). The eight-member Nuclear Committee held eighteen meetings in May 1946. It recommended that the eighteen-member Commission be created. This Commission held eighty- one meetings spread over two years and three sessions. At the same time a Drafting Committee of eight members held forty-four mee tings spread out over two sessions. After this the entire United Nations membership of fifty- ei ght nations, in its Third Committee on Social, Humanitarian, and Cultural Affairs, devoted two meet­ ings to the do cument each working day from September 21 to December 8, 1948, which totaled another hundred and fifty meetings. Then, after two more days of dis­ cussions, the Third General Assembly adopted the Declaration a few minutes after midnight on December 10, 1948. All of this tremendous i nput into the writing of the Declaration does not negate the fact that J9h_n P. Hum�, about whose life I give more details in section 1 of

The Drafting Process Explained

Z9

Chapter 4, is by all counts to be reckoned the primus inter pares of the drafters, e� though he was not a voting member of the commissionnorof its drafting subsidiary. After haviilgfilugntfaw �!.McGill University for almost ten years;-lle--wasetppointelt� be the UN Secretar i at 's Human Rights Director in 1946, a post henefd until 1966.56 The Nuclear Committeethat gave-ECOSOC advice on the orgarii:Zattotroflhe-Humari Rights Commission asked that the Secretariat do all the preparatory work for the (full) Commission that was to draft the Declaration. The Council gave that job to Humphrey. When we compared Humphrey's first draft of the Declaration with the rewrites that the First Session of the Drafting Committee asked Rene Cassin, the dele­ gate from France, to undertake, we found confirmation of Humphrey's claim that in fact he did much more than prepare the way. Borrowing freely from the drafts he had collected, he wrote a very good and inclusive first draft of the Declaration. This means that Cassin did not really enter the room until after the babY- was born. Yet until fairly recently, the human rights communitY- believe.d_tha.t Cassin was "th;;-;rthor," "the father," and "the architect" of the Universal Declaration. This attri­ bution process started around the time of the tenth anniversary of the document,57 grew stronger when Cassi!_l received the 1968 Nob.eLJ?eac.:e-l!r-ize,� and-is-still--aliY_e_ tod�wever, there is no gainsaying the fact that Humphrey wrote the crucial ­ because inclusive - first draft of the Declaration. Almost every segment of this draft­ ing history will underscore this fact. Having given Humphrey the credit he deserves, we must immediately admit that Cassin was an invaluable member of the inner core of drafters. He was the vice-chair of the Nuclear Committee that made the plans for the Commission on Human Rights. He was the chief delegate from France to all three of the Commission's sessions, as well as to the two sessions of the Commission's drafting subsidiary. At the time of his appointment to the Commission he was already a respected international juri st From 1924 thr�h 1938 he had been the delegate of France to the League of NationsAs­ semblie�d to the Geneva Disarmament Conferences. After he served as a most dis­ tinguished charter member of the Commtsston on Murnan Rights, he was appointed vice-chair of the Commission in 1949 and chair in 1955. He remained a member until 1971. From 1959 to the early 1970s he served as a judge on the European Court of Human Rights and was twice elected president of that Court.60 More than any other drafter Cassin spent the post-adoption years interpreting the Declaration to the larger world, almost always stressing the theme of universality.51 Humphrey describes Cassin as "a little man with a Van Dyke beard, who had a dynamic personality, a sharp and quick mind and was one of the best public speakers I have ever heard . . . . He was always so preoccupied with pressing his own point of view. But he was not a particularly effective debater. In age the doyen of the Commis­ sion he had experience with the League of Nations, [and] had been in London with De Gaulle." Humphrey tells us that Cassin had left on the door of his apartment on Boulevard St.-Michel "the black seal of the Gestapo the Nazis put there when they condemned him to death in absentia." 62 On the many occasions where I quote Cassin, I shall let the reader be the judge of Humphrey's comment that Cassin was "always preoccupied with pressing his own point of view." Humphrey ascribes to Dr. Peng-chun Chang, the main Chinese delegate, the opposite characteristic of being a peacemaker and creator of compromises. Born to a .

JO

Chapter I

prominent Chinese family, Chang received a Ph.D. in education from Columbia Uni· versity's Teachers College in New York in 1924, after which he had a distinguished career as an educator. At first Humphrey was put off by Chang's "somewhat uninhib· ited criticism of the Secretariat," but he "soon learned to appreciate his great human qualities . . . . He was a master of the art of compromise and under cover of a quota· tion from Confucius, would often provide the formula which made it possible for the Commission to escape from impasse" (p. 23). Unfortunately, toward the end of the proceedings Chang lost his sure footing and did SOJ,!!e-"real-da!!lage to the Declarat.!9.n whi n--aeeend-place;-Dei'iloved by proposing that the article on d ' ee e ocument, where it is now.'8 towar ' A third person whom we must count among the inner core was Dr. Charles Habib Malik, the representative of Lebanon. He was a profess�r of philosop?y at the A�niversity in Beirut and had a Ph.D. from Harvard University. Humphrey describesnlmas"a tail man witliOlacR: ha1r and a no se like an eagle who would have . made a good figure dressed like a sheik and galloping across a desert." As a Thomist he "believed in natural law." He thought that "his chosen philosophy provideatlie answers to most, if not all, questions, and his thinking was apt to carry him to rigid conclusions . . . . Intellectually, Chang and Malik dominated the Commission. But he [Malik] was one of the most independent people ever to sit on the Commission and he was dedicated to human rights" (p. 23). The only place in the Declaration where this Thomist mark is visible is in Article 16 where it calls the family "the natural and fun· damental group unit of society." Malik was the chair of the Third Committee, which went over the Declaration with a fine comb and where many a tense and great debate took place on some of the most important issues in the Declaration. Hernan Santa Cruz, the delegate from Chile, was also a prominent member of this inner core. He had been professor of criminal procedure and military procedure at various military academies and when appointed permanent UN representative was a judge of Chile's Superior Military Court. He was a personal friend of Humphrey's. Both socialists, these two men worked very well together. Humphrey had borrowed much for his first draft from the one the Chilean delegation had submitted. But having placed his first draft on the Committee table he had to step back from the drafting process and let events unfold as they might. He could only "work" the delegates in private over lunches and at outings. Santa Cruz was one of his allies and gladly spon­ sored Humphrey's socialist items. When the North Atlantic nations sought to trim back Humphrey's entries, Santa Cruz was ever alert and ready to do battle. More often than not he won the case, which is one reason the 1948 Declaration is no mere copy of its Enlightenment predecessors. One delegate who is not usually thought of as belonging to the inner core of draft­ ers is Alexie P. Pavlov from the Union of Soviet Socialist Republics. He was educated at Leningrad University and had a legal career in the Soviet Union. He was ambassa­ dor to Belgium from 1946 to 1950, which covers the years the Declaration was written. He did not join the drafting team until the Second Session of the Drafting Commit­ tee and the Third Session of the Commission. He was also the Soviet delegate to the Third Committee. I single him out because when the tensions of the Cold War were at their worst in the summer and fall of 1948, Pavlov was the Soviet representative and he served in that capacity with great distinction. He meticulously researched the many ·

The Drafting Process Explained

II

speeches h e gave, and his "attacks" on the metropolitan powers were almost always on target. Though almost always outvoted, he never tired of his causes. Much of the nondiscrimination language in the Declaration is the result of his insistence. He was a leader in the fight for the fight-to be protected against unemployment and for the rights to housing and medical care. He tirelessly supported the women's caucus in its attempts to rid the document of sexist language. As the last but not least member of the inner core I mention Eleanor Roose­ velt, the United States delegate. The widow of President Franklin Roosevelt, she had made a public career of her own, and President 'Ii:uman's appointment of her as a member of the U.S. delegation to the First Session of the United Nations proved to be a propitious one.64 She was made the delegate to the Third Committee on Social, Humanitarian, and Cultural Affairs. From here she was appointed to the Nuclear Committee that was to give recommendations to the Economic and Social Council on the structure and task of the Commission on Human Rights. She was elected chair of the Committee, an honor repeated when she was elected chair of the Commission on Human Rights and of its Drafting Committee. In this position she made the unique contribution of serving as a buffer between the two Cold War camps. In the years 1946-1948 there was no other public figure dedi­ cated to the cause of human rights who was respected and trusted by both of the great powers. Very few other American diplomats could have worked with the Soviet Union the way Roosevelt did without having undercut domestic support for the project. Dur­ ing one of her trips to Britain a GI asked her how to get along with the Russians. She . responded with four quick points: have convictions; be friendly; stick to your beliefs; and work as hard as they do. The reports of the more than 150 UN meetings which she chaired provide ample proof that she consistently practiced what she preached to that GI . She was more sympathetic to the Russian point of view and more optimistic about the possibility of diplomatic solutions than most other diplomats who had Truman's ear. While she had not liked Churchill's Iron Curtain Speech in Fulton , Missouri, she resisted the Cold War militarism that came to dominate U.S. foreign policy.65 In Octo­ ber 1947 she wrote in the New York Times that the two different political systems had to "work together, [for] growing apart is not going to help us." 66 This was well after both the Truman Doctrine and the Marshall Plan had been announced, after the Cold War had already spread to the Korean peninsula, and after the Communists had been pushed out of the postwar French and Italian governments. She probably knew about the trial and death of Niko Petkov in Bulgaria and the hanging of Stanislaw Mikolaj­ czyk in Poland, both peasant spokesmen who stood in the way of Stalin's designs for Eastern Europe. Like anyone else the Soviet diplomats could read what Roosevelt wrote in her col­ umn "My Day," which was carried by seventy-five to ninety newspapers in the United States. A. Glen Johnson reports that the columns between 1946 and the end of 1948 "reveal a continuing effort to understand Soviet behavior in traditional rather than ideological terms." 67 In some of them she "blamed the U.S. press for some of the Soviet-U. S. conflict and called for a greater effort to understand the Soviet Union" (p. 12). She was equally famous and beloved in other countries and was often referred to as "first lady of the world."

12

Chapter I

n nwritten rule that dele ates were not suppos-e·· to refer to "violations" in various countries. Such aliegations would lead to all sorts of ad hominem arguments and block the goal of writing a declaration accept· able to all the delegations. Once in a while that rule was broken, as when the delegate from the Soviet Union made references to the lynchings of blacks in the United States, to Truman's remarks to Congress about the housing situation in the United States, or to Churchill's speech at Fulton.68 The Soviet delegate knew that Eleanor Roosevelt was one of the strongest opponents of racism, had spearheaded housing projects for the poor, and had publicly disagreed with what Churchill had said, which is why these Cold War barbs had no sting to them and why she was able to react so calmly, never responding in kind. That cool dignity set an example for the rest of the delegates and kept tempers at bay. Most of the meetings were conducted in a calm and orderly fashion, with only occasional rhetorical excesses. Roosevelt's boundless energy and infectious enthu­ siasm kept the proceedings on track. She was a competent parliamentarian whose personal integrity kept the chair at the center of authority. Her rulings were very sel­ dom questioned and when they were, usually by the delegate from the Soviet Union, they were upheld.69 During the Second Session of the Commission held in Geneva, a reporter from the New York Times dispatched the comment that "the proceedings sometimes turn into a long vitriolic attack on the U.S. when she is not present. . . . These attacks, however, generally degenerate into flurries in the face of her calm and undisturbed replies." 'o To this I must add that she was almost never absent. This dedication helps explain the remarkable fact that the rhetoric the reporter mentioned did not really affect the proceedings until the fall of 1948. That is when the Berlin airlift was re-instituted and kept in place, but it was also a time when most of the Declaration had already been written. Who Roosevelt was and what she stood for made her as chair of the Com­ mission a perfect focus for conciliation at a time when the alliance was falling apart. Charles Malik has said of the Commission that he "didn't see how they could have ac­ complished what they did without her presence." 71 Her lack of cynicism kept the hope of San Francisco alive, while at the same time, as a determined and efficient chair, she pushed the proceedings toward a successful conclusion. In addition to the inner core of drafters, a long list of second-tier drafters at various points made significant contributions: Enrique V. Corominas for Argentina, William Hodgson and Alan Watt for Australia, Count Henry Carton de Wiart, Fernarid Dehousse, and Roland Lebeau for Belgium, Eduardo Anze Matienzo for Bolivia, Be­ larmino Austregesilo de Athayde for Brazil, Leonid Kaminsky and Manasi Stepanenko for the Byelorussian Soviet Socialist Republic, Guy Perez Cisneros for Cuba, Bodil Beg trup for Denmark and for the Commission on the Status of Women, Minerva Ber­ nardino for the Dominican Republic, Omar Loufti for Egy p t, Jorge Carrera Andrade for Ecuador, Alexander Contoumas for Greece, Emile Saint-Lot for Haiti, Hansa Metha and Lakshimi Menon for India, Karim Azkoul for Lebanon, Pablo Campos Ortiz for Mexico, L. J. C. Beaufort for the Netherlands, A. M. Newlands for New Zea­ land, Shaista S. lkramullah for Pakistan, M. Amado for Panama, General Carlos Ro­ mulo for the Philippines, Fryderika Kalinowska for Poland, Jamil Baroody for Saudi Arabia, Abdul Rahman Kayaly for Syria, A��n Ku ral for Thrkey, Stephan P. Dem-

The Drafting Process Explained

33

chenko and Michael Klekovkin for the Ukrainian Soviet Socialist Republic, E. H. Louw and C. T. Te Water for the Union of South Mrica, Alexandre Bogomolov for the Union of Soviet Socialist Republics, Lord Charles Dukeston, F. Corbet, and Geoffrey Wilson for the United Kingdom, justino jimenez de Arechaga for Uruguay, Eduardo Plaza for Venezuela, and Ljuba Radevanovic for Yugoslavia. None of these delegates served in a personal capacity. They all represented their countries and knew they were participating in a historical moment. When the Declaration was almost finished, the Third Committee · turned down an article on the rights of cultural minorities, which omission I discuss in Cha ter 7 sec­ tim1 .4. e--reJectton o the special mention of minorities' rights led the Haitian dele­ gation to try to save what could be saved. It got the Third Committee to affirm "the universal character of the Declaration of Human Rights," in spite of this exclusionary stance (AfC.3f373). The passage of this resolution prepared the way for a change of title that took place a little later. Up until that time the Declaration had been called an "International Declaration of Human Rights," and before that it had been referred to as the United Nations Declaration of Human Rights. Now, after the Haitian motion about the universal character of the document had prepared the way, the French dele­ gation proposed to change the title to read "Universal Declaration of Human Rights" (AfC.3/339). This change was adopted by tlieThird Committee with_l7 votes for, 11 against, and 10 abstentions (p. 786). The effect of it was a shift in attention away fr;;m the authors of the Declaration, which were states and their delegations, to the addres­ sees of the document. Speaking in the General Assembly debate a few days after that title change, Cas­ sin noted that to him "the chief novelty of the declaration was its universality, [and] because it was universal," he said, "it could have a broader scope than national decla­ rations and drew up the regulations that were essential to a good international order" (p. 866). He articulated what many of his colleagues also felt, namel that with the Declaratim!. "something new ha[d entered the world." It did not simply express the values of some of the great spirits of our age, but it was "the_ firsLdoc� about moral val!!-��_!!Q Q!�.!l-�� assembly of the human £Qmmunity.�' It was therefor-e-uni-- ----· versal i� origin and � These remarks of Cassin fit some of the comments that were made at the time of adoption. They confirm the view that the Universal Declaration was written for ordi­ nary men and women, for people in all walks of life and in all the different cultures of the world. While they themselves were jurists, diplomats, and lawyers, the authors of the Declaration did not address their document to any kind of experts. They were not even thinking of intellectuals in general. Instead, they used as their point of reference and as their intended audience the ordinary man or woman in the streets of any of the world's cities or villages. We know that this is so from the reasons the authors gave for wanting to keep their document very short. Whenever they worried about their draft becoming too long, they would cut it back because, as Hansa Metha of India said, "it was to be understood by the common man" (SR.50fp. 8). During the Second Drafting Session Cassin told his colleagues that he "thought that the Drafting Committee's essential task was to shorten and clarify the Draft Declaration," which is why he proposed that certain articles be merged (SR 35fp 2). P. C. Chang, the Chinese delegate, thought .

·

.

.

- - - - ·--· ·

34

Chapter I

the Declaration "should be as simple as p ossibl e and in a form which was easy to grasp" (SR . 5 0fp . 7) . The point of this brevity was to make the Declaration accessible to ord inary people . That is why Michael Klekovkin of the UKSSR worried that the document was becoming too long, "with the result that it would be difficu lt for the ord inary people to understand it" (SR.50fp. 7). More than once, Roosevelt, as chair, felt it necessary to remind "the representa­ tives of [the need for] a clear, brief text, which could be readily understood by the ordinary man and woman." The Declaration, she often said, "was not inte nded for philosophers and jurists but for the ordinary people ." 72 Most of her colleagues were of the same opinion . In the midst of the troublesome discussions on Article 1, Pedro de Alba, the Mexican representative, did not want it to be "forgotten that the declara­ tion was intended primarily for the common man and for that reason it was important that it should be as clear as p ossible " (p. 162). That was in the Third Committee. A little later in the General Assembly, Minerva Bernadino, the representative of the Domin ican Republic, said that her "delegation was convinced that the declaration, for which men and women the world over were anxiously waiting, would . . . receive the unqualified support of all peoples" (p. 903). This universal expectation and sup­ port was not contingent on the Commission's having delivered a perfect product, as was pointed out by Abdul Rahman Kayala , the representative from Syria. "Civi liza­ tion had progressed slowly, " he said, "through centuries· -of p·er�ecu�nny, until finally the present declarauotrmR.-I:ieen-dr�as not the work of a few :r: iV::e:;;; : s'i= n•t..:h:-:e:-A r; ss:-: ;: e:::m::�bl::'llr;;y-:o"""r::-::: m� fl'i:e-Economic and Social Council; it was the represe;rta't achievement of generations of human beings who had worked towards that end. Now at la�t the peoples of the world would hear it proclaimed that their aim had been reached by the United Nations" (p. 922). By far most of these people were ordinar y men and women, m ill ions of them, in all cultures and all periods of history. At one point the French delegation wanted for the sake of clarity to add to the article on s l avery the idea that "its practice is a challenge to the conscience of the world, " using a variant on "the conscience of mankind." Wilson, the representative of the United Kingdom, obj ected on the grou nds that "if the Declaration was to reach the greatest possib le number of peoples it was essential for it to be exp ressed in the simplest terms" ( SR . 5 0fp . 8). At another time, in the Third Committee, some delegates obj ected to the fact that in the article on marriage the nondiscrimination prohibition of Article 2 was to be repeated. Ulla Lindstrom, the Swedish delegate, defended this repetition on the grounds that "it had frequently been said in the Committee that the declaration of human rights was meant for the man in the street . . . [and that] some rep etition in the text of the declaration was [therefore] desirable " (p. 403). Usually, of course, simplicity was best served by brevity. The Chinese delegation, for instance, felt that the Declaration should contain no more than twenty articles, which is what that delegation submitted (AC.1/19). And Chang repeatedly p ushed for brevity so that ordinary people would be reached. In the minutes of the Third Session we read that "once more [Chang] stressed the fact that the Declaration . . . was in­ tended to be read and understood by large masses of people, and should therefore be as brief and as intell igibl e as possi ble" ( SR . 5 0fp . 17). Chang intende d his reference to the "large masses of people" to be taken cross-cu lturally and universally, spread out over the gl obe in numerous different cultural traditions and periods of history.

The Drafting Process Explained

35

These citations show that the drafters thought of the members of the human race as their primary addressees. These primary addressees are hidden in the operative paragraph that we have in the final product: Now therefore, THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN

RIGHTS as a common standard of achievement for aU per>pks and all nations, to the end that individual and

every

organ

of society,

every

keeping this Declaration constantly in mind, shall strive by

teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and

observance, both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction.

Here there are two more groups being addressed. The second italicized phrase (indi­ viduals and groups) refers to the secondary addressees of the document and the first (nations and peoples) refers to the third level of addressees. Both of these other levels are crucial in educating people about their own and other people's human rights and in the fight for the recognition and observance of these rights on a national and inter­ national scale. But nations, small and large groups of people, governments and states are not the prfmary addressees of the document. Individual human beings are, no maite r Where and When they lived Or liVe,7B

Chapter 2 World War II as Catalyst

One of the inevitable questions about the Universal Declaration is how so many dele­ gations from so many different nations and cultural traditions could come to an agree­ ment about a univerl!al moral code. We Baw in Chapter 1 that the procel!l! Ul!ed to draft the Declaration was a very inclusive one. That ill true, but it also has to be admitted that this process was dominated by nations from around the North Atlantic (with their friends and former colonies) and from Latin America, and that large regions of our world, such as Asia and Africa, were grossly underrepresented at the drafting table. I discuss the possible ideological fallout from this imbalance in Chapter 7. This chapter seeks to answer these questions: What is it about the idea of human rights that brings people of all sorts of different backgrounds into the circle of moral agreement? What lies at the heart of the moral consensus about human rights that was born in the 1940s and has expanded ever since? In the first meeting of the Commission on Human Rights, Henri Laugier, the as­ sistant UN secretary general in charge of social affairs, charged the Commission with the "task of . . . following up in the field of peace the fight which free humanity had waged in the fields of war, defending against offensive attacks the rights and dignity of man and establishing . . . a powerful recognition of human rights" (SR. l/p. 2). At the First Session of the Drafting Committee, Geoffrey Wilson, a United Kingdom dele­ gate, reminded his colleagues "of the historical situation in which the Committee met. It was one, he said, where Germany and other enemy countries during the war had completely ignored what mankind had regarded as fundamental human rights and freedoms. The Committee met as a first step toward providing the maximum possible safeguard against that sort of thing in the future." 1 During the final General Assembly debate in December 1948 the drafters made it abundantly clear that the Declaration on which they were about to vote had been born out of the experience of the war that had just ended : Charles Malik, the rep­ resentative from Lebanon, said that the document "was inspired by opposition to the barbarous doctrines of Nazism and fascism" (p. 857). Lakshimi Menon, his col­ league from India, told the Assembly that the Declaration was "born from the need to reaffirm those rights after their violation during the war" (p. 893). Like Bodil Beg­ trup, the Danish delegate, all the drafters wanted "to avoid the horrors of a new war" (p. 893) . "From the ruins of destruction wrought by the Second World War," said Jorge Carrera Andrade, the delegate from Ecuador, "man had once again fanned the immortal flame of civilization, freedom and law" (p. 918). Now that Nazism, fascism, · - " · - - : " � <:t<>tP " !II had been destroyed, the United Nations, he said, '

·

-

World War II as Catalyst

37

should "strive for a new democratic internationalism" (p. 919). The Belgian delegate, Count Henry Carton de Wiart, thought that "the essential merit of the Declaration was to emphasize the high d ignity of the human person after the outrages to which men and wo men had been exposed during the recent war" (p. 879). Rene Cassin, the French delegate, pointe d out that "the last war had taken on the character of a cru­ sade for human rights" and that indeed the Declaration "was the most vigorous and the most urgently needed of humanity's protest against oppression." 2 The drafters summarized these sentiments in the second recital of the Preamble, where they tell us that one of the reasons they p roclaimed the Declaration was that "disregard and contempt for human rights [had] resulted in barb arous acts which [had] outraged the conscience of mankind," their own included. This connection be­ tween the experience of the war and the writing of the Declaration led Ernest Davies, a representative from the United Kingdom, to sound a note of warning. "It should not be forgotten," he said, "that the war by its total disregard of the most fundamen­ tal rights was respons ib le for the Declaration, for p revious declarations had lived in h istory long after the wars and disputes which had given rise to them" had been for­ gotten (p. 883). Being thus forewarned not to forget, I use this chapter to recall details from the drafting process that link the acceptance or rejection of cert ain articles and phrases in the Declaration to the experience of the war. The C.old War, the women's lobby, and the trad itio n of Latin American socialism were al;; m� ·o writing o t 1s p1vota ocument. But none of them match the Holocaust i im or­ tan�e. Accor mgly, in the different sections of this chapter I place side by side the content of certain articles and the reasons del egations gave for wanting to include these articles in the Declaration. The motif that runs throughout these adoptions and rejections is that the Universal Declaration was adopted to avoid another Holocaust or similar abomination. Hearing about and experiencing the horrors of the war con­ vinced the drafters of the rightness of what they were doing. The moral outrage thus created gave them a common platform from which to operate and do the drafting. While they often differed on the specific wording to be used, once it was shown that a violation of a certain clause or article had in some way helped create the horrors of the war, the adoption of that clause or article was virtually assured. The connection between the Holocaust and the Declaration is not unknown, but many details presented here are new, and they will, as Davies hoped they would, firmly implant the connection between the war and the Declaration . I shall discuss the i m­ petus of the Holocaust behind the acceptance of the entire range of rights in the Declaration: those having to do with personal security (2.1), legal human rights (2.2 and 2.3), those that are linked to procedures of democratic governmen t (2.4), new international rights like citize nship and asylum (2.5), and examples from the social, economic, and cultural half of the Declaration (2.6). ·

·

·

. . . . . .-

2 .I Personal Security a nd the Camps

In Mein Kampf, Adolf H itler was terribly consistent in drawing out the implic ations of his organic view of the state. Though not the first, he is no doubt the best-known thinker to take the word "organic" literally. He did not just speak of "the inner unity

II

Chapter 2

of our people's will" and of the state "as the Jiving organism of a nationality" and simi­ lar metaphors and abstract phrases open to various interpretations that might take the edge off.8 He made it all very concrete by identifying state with race and race with blood. He defined a state as an "organization of a community of physically and psychologically similar living beings for the better facilitation of the maintenance of their species" (p. 150). "The German Reich as a state," wrote Hitler, "must embrace all Germans and has the task, not only of assembling and preserving the most valuable stocks of basic racial elements in this people, but slowly and surely of raising them to a dominant position" (p. 398). Most of the activities of the Reich can be grouped under the tasks of assem­ bling, preserving, and bringing to dominance the Aryan race. The Nordic blood had to be kept pure, for Hitler believed that "blood mixture and the resultant drop in the racial level is the sole cause of the dying out of old cultures; [and that] men do not perish as a result of lost wars, but by loss of that force of resistance which is con­ tained only in pure blood" (p. 296) . In fact, at a mass meeting in 1934, Rudolf Hess declared National Socialism to be "nothing but applied biology." 4 National Socialism was not just authoritarian and not just totalitarian, it was also and foremost racist. Werner Best, Heinrich Rimmler's legal authority, identified the "political principle of totalitarianism with the ideological principle of the organically indivisible national community . . . all other ideas [being] symptoms of an illness which threaten[ed] the healthy unity of the indivisible national organism." 5 This extreme organicism means the total breakdo� of the dividing line between persons and their state, It is the exact opposite of what Hernan Santa Cruz, the Chilean delegate to the Third Committee, said was the assumption on which the Dec­ laration is based, namely, the belief that "the interests of the individual [come] before those of the state and that the state should not be allowed to deprive the individual of his dignity and his basic rights" ( Third, p. 50). Article I

Mter the Holocaust, Article 1 of the Declaration sounds like a trumpet call of victory after battle; it announces that "all human beings are born free and equal in dig­ nity and rights," that "they are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." These are not mere Enlightenment reflexes, they are deep truths rediscovered in the midst of the Holocaust and put on paper again shortly thereafter. Rene Cassin, the Fre nch delegate, explai ned "that his text [of Article 1] alluded to the three fundamental questions of liberty, equality, and fraternity because dur­ ing the war these great fundamental principles of mankind had been forgotten" (AC.lfSR.B/p. 2). Connecting the ideas of equality and fraternity, he pointed out that he had wanted to stress "the fundamental principle of the unity of the human race" because Hitler had "started by asserting the inequality of men before attacking their liberties" ( SR . l 3/p . 4). Later on, Cassin reiterated the point that "the authors of that Article had wished to indicate the unity of the human race regardless of frontiers, as opposed to theories like those of Hitler" (AC . 2/SR . 2jp . 5). When someone in the Third Committee observed that these principles were too well known and did not need

World War II as Catalyst

19

to be stated again, Cassi n quickly responded that that argument "was invalid in light of recent events. Within the preceding years," he said, "millions of men had lost their lives, precisely because those principles had been ru thlessly flouted." He thou ght it "was essential that the UN shoul d again procl aim to mankind those principles which had come so close to extinction and should refute the abominable doctrine of fas­ cism" (p. 99). Article 2

In a speech he gave in November 1927 Hitler said that he saw "the value of a man [a]s determined in th e first place by his inner racial virtues" and that the Aryan race was at "the top of the li st" 6 Aryans, he wrote in Mein Kampf, were "the highest race" and "the master people" (p. 384). He therefore declared war "on the Marxist idea that men are equal . . . and was willing to draw the ultimate consequence of recognizing the importance of blood" (p. 442). We see in this last comment of Hitler the stark contrast between the National Socialist and the Communist view of equ al ity and non­ discrimination. In fact, the Nazi denial of $Ual ity led to the Communist insistence on nondiscrimination in the Declaration. In the FirsfSe!lsion:··ofthe Drattmg Commit­ tee the delegates expressed their prioritiesfor the bill to be drafted. Alexei Pavlov, the USSR delegate, stated that in his opinion the princip le of nondiscrimination "was the most i mportant one to be included in a Bill of Rights -a question which ought to be raised under th e present historical, concrete and material conditions. Whatever discrimination still exists in the world must be destroyed, he felt" (AC.l/SR.5jp. 7). I postpone the exegesis of this article until Chapter 3, where I discuss the application of the principle on nondiscrimination to the peoples then living in the colonies, to members of vari ous mi n ority groups, and to women, all of which are singl e d out for attention in Article 2. Article 3

Article 3 gives everyone the right "to life, l iberty and secu rity of pers on ." At an earlier stage of the deliberations the r ight to l iberty had been qualified with the phrase "ex­ cept in cases pres cribed by law and after due process" ( 2 1/Art . 8). Dr. F. R. Bienenfeld, speaking for the World Jewish Congress, pointed out that the clause did not "specify the nature of the law," which he felt was a dangerous omission, "for under the Nazi regime thousands of people had been deprived of their liber ty under laws which were perfectly valid" (SR.36jp. 3). Primarily as a result of this plea the qualifyi ng state ref­ erence was dropped. The ho rror acts of the Nazi state also contrast sharply with the other two rights in this article, the ones to life and personal security. More than a de­ cade earlier, Hitler had said in Mein Kampf that "if the power to figh t for one's own health is no longer present, the right to live in this world of struggle ends" (p. 257 ) . H e did not want any "half-measures" i n this respect and therefore opposed letting "in­ curably sick people steadily contaminate the remai ning healthy ones." 7 Robert Lifton has brilliantly researched what this meant in the earlier Nazi prac­ tice of "euthanasia" and the later implementation of "the final solution." Reading his results reminds us of what can happen when a society pursues the organic vision to

40

Chapter Z

the demonic end.8 The members of the Human Rights Commission knew about the horrors perpetrated by the Nazi state in and outside of the concentration camps. The Secretariat had prepared a special report on the war crimes trials, which detailed many of the Nazi crimes and the criminal charges to which they led.9 Since it was com­ piled for the Commission, I will freely use this report to cast light on various drafting segments. Pertinent to Article 3's right to "life, liberty and ·Security of person" is the report's reference to "the policy which was in existence in Germany by the summer of 1940, under which all aged, insane, and incurable people, 'u�eless eaters,' were trans­ ferred to special institutions where they were killed" (W.20fp. 53). Most of the 275,000 people who were killed in this way in nursing homes, asylums, and hospitals had been German citizens. This information inspired amendments that did not get adopted, but which show that the war experience lies just below the text of Article 3. It led the Chilean dele­ gation to propose as an amendment' the statement that "unborn children, incurable, mentally defectives and lunatics shall have the right to life" (21/Annex F) . In the Third Com mittee the Cuban delegation wanted to add the right to "personal integrity" to Article 3 because of "the terrible events which had taken place during the war when human beings had been used for surgical experiments" ( Third, p. 145). The other dele­ gates thought this idea was already included in the concept of "security of person." The delegation from Uruguay proposed that the right to one's honor be added to the article. "Such mention would be particularly welcomed by Jews and by all who had suffered indignities at the hands of the Nazis" ( Third, p. 173). This right is included in Article 12. Life was cheap to the Nazis. Explaining the German policy of shooting anywhere from fifty to one hundred hostages for one German life taken, a defendant named Keitel told the court that "it should be remembered that a human life in unsettled countries frequently counts for nothing and a deterrent effect can be obtained only by unusual severity" (W.20fp. 57). Inside the Reich itself there was a dramatic increase in the administration of the death penalty after 1942. In 1937, 32 people received the death penalty, while by 1944 that number had risen to 5,191. People were killed for undermining morale, for spreading "malicious propaganda,'' for badmouthing the Fuhrer, and for saying things like "the war is lost." 10 A Jewish electrician was killed because he "approached" a chambermaid, who, in any case, had turned him down (p. 109). It was this cheapness of life that made Count Carton de Wiart, the Belgian delegate, think "that it was more than ever necessary to affirm the right to life, as the right had been so gravely violated by the Nazis" ( Third, p. 173). Salomon Grumbach, his colleague from France, expressed verbatim agreement: "it was more than ever nec­ essary," he said, "to proclaim the right to life after the terrible crime that had been perpetrated during the war" ( Third, p. 146). It stands to reason that it was notjust the Nazi atrocities that fed into the reitera­ tion of the rights to life and liberty. Life was cheap to others too. In the Third Session of the Commission and in the Third Committee Pavlov, the USSR delegate, attacked the British colonial policies and made reference to the lynching of Mrican Americans in the United States. Christopher Mayhew, a U.K. delegate, responded with a long statement about the Russian concentration camps set up by Stalin, about which the Russian government was being totally silent. Said he: "However, the war had taught

World War II as Catalyst

41

the world a terrible lesson. The discovery of concentration camps in Nazi Germany had proved that it was possible for a totalitarian State to conceal its activities from its own population and even from its officials and that once a State resorted to police methods it could no longer stop" ( Third, p. 160). Article 4

Article 4 does not simply forbid slavery. That stark reference might have reminded us of how the Romans manned their warships and Americans in the South their large plantations. The article also forbids "servitude" and then, to make sure all the terrain is covered, it forbids both practices "in all their forms." In the First Drafting Session Cassin defended this last addition "because there were attenuated forms of slavery which were vigorous in practice: for instance, the status of persons who were dep.ru:ted. to G�many was certainly worse tha"iithat of ancient slaves" (SR.13jp. 2). Robert-Conot reports that as part of Nazi slave labor policy. "a miniat.Urewbite-slave trade w�s,_ �n fact, bemg conducted by officials and Wehrmacht officers returning from the East." 1 1 to serve as housekeepers and to be g1ven They womo bring with them "attractiv�s" ��. - away as presents to friends. Hitler had said this was all right as long as the girls were "Nordic"-looking. Speaking to the Third Committee, Cassin explained that he had used the word "servitude" to cover such "practices as the way in which the Nazis had treated their prisoners of war and the traffic in women and children" (p. 173). Pavlov also supported this article because the "Nazis' attempts to reintroduce conditions of slavery showed that it was a problem which merited the United Nations' most careful attention" (p. 215). Conot reports that of the 3. 9 million Russians that had been taken prisoner by the middle of 1942, " 2.8 million were already dead, and of the remainder only a few hun­ dred thousand were in good enough shape to make them useful as workers" (p. 244). Most of those killed had been purposely starved to death or shot and had been pushed in a ditch by the infamous Einsatzgruppen, the leaders of which were given complete freedom as to whom to kill. Mter such wholesale slaughter of millions of POWs, no one in the East would voluntarily go and work in Germany. Quotas were, therefore, set up which communities were supposed to fill. When a village failed to produce "the prescribed number of people, it was raided . . . [and] people were snatched indiscrimi­ nately from churches, weddings, marketplaces, and festivals, even from pilgrimages to monasteries" (p. 245). Stephan Demchenko, the representative from the UKSSR, supported Article 4 because "it could not be denied that the slave trade still existed and that slavery had been reintroduced by the Nazi regime, and [that] it was therefore essential to include a specific prohibition of slavery in the declaration" ( Third, p. 219). The War Crimes Report summarized these Nazi practices. It told the delegates that prisoners of war were denied "adequate food, shelter, clothing, medical attention, and were forced to labor in inhuman conditions" (W.20/p. 55). It said that "from the occupied territories whole populations were deported to Germany for the purposes of slave labor upon defense works, armament production and similar tasks connected with the war effort" (p. 48). Of those who did make it alive to Germany men and women alike were housed in filthy, decrepit accommodations almost beyond imagin­ ing. Cassin must have been thinking about these kinds of things when he defended

4Z

Chapter Z

the prohibition of slavery and servitude "in all their forms" because "there were at­ tenuated forms of slavery which were vigorous in practice: for instance the status of persons who were deported to Germany was certainly worse than that of ancient slaves" (AC.ljSR.l3jp. 2). Article 5

Article 5 of the Declaration forbids "torture [and] cruel, inhuman or degrading treat­ ment or punishment." Nazi medical experiments in the concentration camps and other such inhumane practices figured heavily in the adoption of this article. The War Crimes Report told the representatives that it was stated in the indictments that the murders and ill-treatment of civilian populations were carried out, among other means, by the performance of experiments, by operations and otherwise on living human beings. These pseudo-scientific experiments, which had also been used as methods of extermination in con­ centration camps, included sterilization of women, study of the evolution of cancer of the womb, and of typhus, anatomical research, heart injections, bone grafting and muscular excisions. Ex­ periments on children had also been conducted. These experiments had been performed in concentration camps in Germany and in occupied territories (Ravensbruck, Buchenwald, Natz­ weiler and Auschwitz). (pp.

53-54)

Cassin felt that the boundaries of the word "torture" were vague and that the First Session of the Drafting Committee "ought to take into consideration such questions as: Do some human beings have the right to expose others to medical experiments and do any have the right to inflict suffering upon other human beings without their consent, even for ends that may appear good?" (SR.3jp. 13). The authors of the Dec­ laration gave clear-cut negative answers to both of these questions . There are many forms of cruel and inhumane treatment. The world will always witness new forms of it and no article can capture the depth of evil to which humans and the states they create can fall. Nothing can justify what Dr. Johann Kremer did when he saw an Auschwitz inmate with what to him was an interesting cranial shape. "He would order that prisoner photographed and iryected with phenol for his col­ lection of fresh corpse samples of liver and other organs." 12 Dr. Friedrich Entress, in the same camp, would infect " prisoners with typhus in order to make medical obser­ vations" (p. 262). And Dr. Horst Schumann conducted experiments with X-ray and surgical castration methods on both men and women. Lifton tells of "a group of young healthy Polish men . . . subjected to the X-Ray castration experiment. They were probably give n an unusually high dosage because, as the former orderly in the ward reported, 'Their genitals started slowly rotting away' and the men 'often crawled on the floor in their pain ' " (p. 283). When their wounds did not heal these young men were gassed. At the Natzweiler camp "anthropological" research was done. For mu­ seum purposes very exact measu rements of women were taken. After that they were gassed and their skeletons put on display. Article 5 on cruel and unusual punishment was very s imilar to Article 7 of the covenant that was being drafted at the same time, but there it was preceded by this article: "No one shall be subjected to any form of physical mutilation or medical or scientific experimentation against his will" (95jp. 18). Explaining the rationale for the

World War II

as Catalyst

41

covenant article to his colleagues in the First Drafting Session, Malik "stated that . . . this article had been considered against the background of criminal events which took place in Nazi Germany. It was felt that even in a legal instrument such as a covenant the attention of the world should be called to these inhuman acts. The basic idea was to explain in an international instrument that the conscience of mankind had been shocked by inhuman acts in Nazi Germany and therefore a positive and condemna­ tory article was needed" (SR.23fp. 3). The same rationale holds for our Article 5 of the Declaration. 2 . 2 Nazlflcatlon and Legal Human Rights

The Universal Declaration includes seven articles that deal with legal human rights. Article 6 gives everyone the right to a legal personality, Article 7 speak! of egl!!!lil:y bef<;>re t�rticle 8 assert; that evetyone has fundamental constitutional rights,_ Article 9 rejects arbitrary arrest and detention, Artie� 10 calls for an indeeendent rticle 1 1 enunciates the presumption of innocence, and Article 12 sa s that j� everyone has a rightto certain areas o pnvacy. ese seven art1c es cover almost one­ fourtnof a Declaration that con tams a total of thirty"articles. Why so many? The draft­ ers were aware of how far the nazification of the German legal system had gone, and they evidently felt that only a clear statement of the separate issues involved could set the record straight. This meant putting on paper separately all the legal rights that by the middle of the twentieth century had become part of the jurisprudential systems of all civilized nations. What Judith Sklar has said about the American Bill of Rights ap­ plies equally well to the Universal Declaration: "One half of the Bill of Rights is about fair trials and the protection of the accused in criminal trials. For it is in court that the citizen meets the might of the state, and it is not an equal contest. Without well­ defined procedures, honest judges, opportunities for counsel and for appeals, no one has a chance." 18 Ingo Muller has shown us that there was in the Third Reich a complete abroga­ tion ofjudicial review and that Hitler's racism found its way into the very center of the system through the appointment of people like Otto Thierack as minister of justice. This man wrote in an official memo that he intended "to transfer criminal jurisdiction over Poles, Russians, Jews and Gypsies to the Reichsfuhrer-SS . . . [on] the principle that the administration of justice can only make a small contribution to the extermi­ nation of these peoples." 14 All members of the SS took an oath which read: "I swear to you, Adolf Hitler- as the Fiihrer and Chancellor of the Reich -loyalty and bravery. I pledge to you and to my superiors, appointed by you, obedience unto death, so help me God." 16 Lawyers and judges took similar oaths.16 The nazification of the legal sys­ tem was so thorough that legal scholars are still debating whether we can truly speak of a "legal" system in Germany during those years.17

�

Article 6

Article 6 of the Declaration says that "everyone has the right to recognition every­ where as a person before the law." None of the drafts submitted to the Commission contained anything like this right. And while many of the constitutions in Humphrey's

44

Chapter 2

survey contained specific legal and civil rights, only two contained the concept of a legal personality as such. Belgium's constitution stated that "total deprivation of civil rights ( ort civile) [civil death] is abolished and shall not be re-established." 18 l\:nd the Greek constitution stated th " i il death is abolished" (p. ). It is an unusual right and repeated questions were raised about Its use u ness n eclaration. Each time the drafters came back to the Nazi violations of it and decided that the right was too basic not to be included. Humphrey's first draft of the article contained the phrase "legal personalitl!.'' which means, Cassin explained, the ability "t be a bearer of rights, obligations and responsibilities." 19 B@Cause Valdimir Koretsky, the USSR delegate, t ought the idea of a legal personality "introduced a complicated juridical concept" and Eleanor Roose­ velt thought it "meant little to laymen," the First Session of the Drafting Committee changed it to what we have, which is "person before the law." To the worry that this article was too technical, Cassin responded that the artiCle was "indispensable because persons existed who had no legal personality" (SR.4fp. 5). When Roosevelt said that the "conception of juridical personality did not exist in the United States" and that she "was not quite certain of the meaning of this article," Cassin explained that this provision was directed "against modern forms of slavery" (SR.37jp. 5). He felt that "there would have been no need to reaffirm that a human being could not constitute the property of another human being, had not certain heads of state such as Hitler, sought in the last ten years to revive the ancient idea that an individual considered as a slave had no right to marry, to be a creditor or to own property" (p. 3). In the Third Session of the Commission both the United Kingdom/India and the Chinese delegations proposed the deletion of what is now Article 6 (A/C.3/99 and 102) . "Speaking as a representative of the USA, the Chairman stated that her delega­ tion would vote against Article 12 [6] because its wording was ambiguous" and "the provisions of Article 3 [2 and 7] were sufficient." 20 Wilson of the United Kingdom also "announced that his delegation would vote against the retention of article 12 [6] " be­ cause "such significance as the proposed text of the article had in Anglo-Saxon law was already covered by provisions of Article 3 [2 and 7]" (p. 5). Both the French and Soviet delegations defended the article's retention. Cassin repeated the points he had made previously. Pavlov added the observation that "apart from attempts against whole groups, such as those against the Jews in Germany, ac­ count must be taken of the fact that some civil legislation still contained restrictive provisions regarding juridical personality of individuals. Thus, in certain cases a wife had no juridical personality independent from that of her lfiisllaOO'' (p. 6). Roberto Fontaina, a delegate from Uruguay, ffiought "the article certamly should be retained,

the difficulty was how to express the idea in a way that would be clear to the En­ When Roosevelt called for a vote on the matter, the article was retained by 12 votes with 4 abstentions in the form of the following French­ sponsored text: "Everyone has the right everywhere in the world to be recognized as a legal person" (p. 8). In the Third Committee H. H. Carter, a Canadian delegate, argued "it was impor­ tant to keep in mind , . . the possibility that certain persons might be deprived of their juridical personality by an arbitrary act of their government. Nazi Germany offered a recent example" (p. 225). Cassin added that the Committee's "duty was to proclaim glish speaking countries" (p. 5).

World War II as Catalyst

45

to the whole world that there was not a single human being who could not possess both rights and obligations . . . . The right to enter into contract had not yet been em­ bodied in the Declaration," he said, "but the phrase 'person before the law' covered that fundamental right too" (p. 226). Muller records a case in which a German court actually declared a Jew legally dead, and "of complete legal incompetence" and "lack of rigl.!!s " simply because he was ajew. Just as death makes someone incapable of carrying on physically, so, in the Third Reich, being a Jew made this man incapable of "carrying out his duties" as the director of a film. His contract with the film produc­ tion company was canceled because the man'sJewishness made him legally dead.21 Article 7

Any system of justice that is shot through with racism, as Hitler's was, is bound to be discriminatory and hence unequal. Mter the Nazis took power a conference for all German law professors was held. Muller tells us that "Heinrich Stoll, a professor of civil law at the University of Thbingen, reported that it was the consensus of the assembled jurists that 'the concept of race is closely linked to the concept of law' " (p. 90). This is the exact opposite of all civilized legal systems since the time of the Stoics. Article 7 of the Declaration talks about equality before the law as a basic right and for most of the drafting process the article was attached to what now is the first paragraph of Article 2. This made sense, for nondiscrimination and equality are two sides of the same coin. Article 7, one of the most poorly written in the entire Declaration, seems redun­ dant and overlaps in its second sentence with Article� � According to Article 7: ·�n are . equal before the law and are entitled without any discrimination to eq� of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination." The period at the end of the first sentence is a crucial one, for it divides the first sentence -which does not contain a reference to the Declaration -from the second sentence, which does. That means the article prohibits two kinds of discrimination: "discrimination of any__kind/' and discrimination that violates the rights listed in the Un1versaTnedara­ ti9D Since Article 2 ofthe" Declaration already p10hibits this second kmd of discrimi­ nation, the real contribution of Article 7 is made in its first sentence and in the final clause of the second sentence, which prohibits "incitement to such discrimination." During much of their drafting history Articles 2 and 7 were intertwined in one article. These two strands were separated out with much difficulty and left us with a strong and lean Article 2 and with a weaker Article 7.22 The main issue that emerged during this untangling process was the need to differentiate between the qualified prohibition of Article 2 and the unqualified prohibition to be added in Article 7. Karim Azkoul, the Lebanese delegate, saw the issue clearly when he supported a Chilean amendment on the ground that "certain rights might not be mentioned ex­ pressly in the Declaration, but discrimination with respect to such rights should not be permitted." 28 Salvador Lopez, a delegate from the Philippines, also saw the prob­ lem. Referring to new legislation passed in South Mrica, he pointed out that "certain rights, such as the right to travel on railroads without discrimination, were not [ex­ plicitly] mentioned in the Declaration but should certainly be covered" (SR.52jp. 11).

46

Chapter z

By not linking the prohibition of discrimination to just the rights listed in the Decla­ ration, the first sentence of Article 7 covers that kind of worry. The idea of equality before the law is a standard feature of national constitutions. For instance, in 1948 the constitution of Uruguay stated that "all persons are equal before the law," the one of Syria that "all Syrians shall be equal in the eyes of the law" and the one of Thrkey that "all 'Il!_rks are equal before the law." 14 And so on. But the idea 'Can travel in two directions. When it is applied to the people who are less or least well off it is often - though not necessarily and not always -referred with the concept of nondiscrimination. Examples of 1948 nondiscrimination clauses are the Chinese constitution's statement that "all citizens of the Republic of China, irrespective of sex, religion, race, class or party affiliation, shall be equal before the law" and the Thrkish one that "the people of Thrkey, regardless of religion and race, are Thrks as regards citizenship."25 When the idea is applied to the elite of a society and to those who pull the levers of power it is often -though not necessarily and not always -referred to with the concept of "equal accountability." I give examples of this below. Probably because he was aiming at the racist aspect of the Nazi legal system, John P. Humphrey stressed the non-discrimination side of equality in his first draft: "No one shall suffer any discrimination whatsoever on account of race, sex, language or political creed. There shall be full equality before the law in the enjoyment of the rights enunciated in this Bill of Rights" (AC.l/3). Equality before the law was for Humphrey primarily a matter of being protected against "any discrimination whatso­ ever." He even added a short list of nondiscrimination items (race, sex, language, and political opinion), which he attached to the prohibition. This is exactly the kind of absolute prohibition of discrimination one would have expected in an article about equality before the law that was written in response to the Nazi horrors. The final Article 7 is not nearly as clear. But by stressing protection against discrimination in both his sentences, Hum­ phrey had ignored the accountability component of equality before the law. This was not for a lack of good examples, for his own survey contained several such. Article 78 of the Icelandic constitution stated that "no privilege attached to nobility, title or rank may be established by law." In Denmark's constitution, "Every prerogative at­ taching in law to persons of the nobility of title and rank [was] abolished," and the Honduran constitution did "not recognize exemptions or personal privileges." 28 In his rewrites Cassin caught Humphrey's oversight,�? He removed the idea of equality before the law from Humphrey's second sentence, molding it into a new article that dealt only with accountability: ·�n are equal before the law and entitled to equal protection of the law. Public authorities and judges, as well as individuals are subject to the rule of law." 18 These Cassin changes caused there to be two articles, one on nondiscrimination,29 which is the forerunner of Article 2, and the one just cited on accountability, which is the forerunner of Article 7. The Working Group of the Second Session replaced Cassin's reference to "public authorities andjudges" with the phrase "regardless of office or status" and merged the two articles again into one long article.80 The Third Session of the Commission adopted a Lebanese amendment to delete the phrase "regardless of office or status." The m�ority, which included Cassin him­ self, felt that "the word 'all' was sufficiently comprehensive." 51 The stripped-down sentence '�ll are equal before the law" was adopted by 12 votes to none, with 8 absten-

World War li as C•t•lyst

47

tions. And so it happened that the idea of equal accountability before the law of the . land, which is an integral arCofthe ancient idea of the rule of law, went from a total absence in the first draft to a full-fled ed presence in the Cassin rewntes an rom there to a hidden status in the first occurrence o e wor a m w at s now Article 7. Upon the i�tiative of P. C. Chang, the Chinese representative, the 'I'htrd Sesston once again split what had become one long nondiscrimination article and thereby set Article 7 free from 2 (SR.75jp. 2). Article 7 does not contain a list of nondiscrimina­ tion items because when the two articles were split again, that list went with the part that became Article 2. When Articles 2 and 7 arrived at the Third Committee stage, several Latin Ameri­ can delegations proposed that they be merged into one single article on nondiscrimi­ nation.82 Those attempts did not succeed. I quote from those debates two statements that set forth the difference between Articles 2 and 7. Chang defended the separation of the two articles on the grounds that ''Article 6 [7] aimed at translating that prin­ ciple [of Article 2] into a practical reality by granting everyone protection of the law against discrimination in violation of that declaration" (p. 128). Cassin was in com­ plete agreement with what Chang had said. As he saw it, ''Article 6 [7] had a more limited field [than 2] and defined the legal status of all human beings within the national limits of sovereign Powers and States. The former [2] set forth the principle of non-discrimination, whereas, in the latter � ], the individual was ensured protec­ tion ag�nst dtscnmmation within his own couQ!fy. Those two ideas were very similar, butwere not absolutely identical" (pp. 128-29). Both men omitted the fact that in one crucial respect the reverse is true. Article 7 is broader than Article 2 in that its first sentence prohibits discrimination of any kind whatsoever, even in areas of the law that are not covered by or not obviously deriv­ able from any of the articles in the Declaration. That is a good thing, for the seeds of tyranny and totalitarianism are grown in the interstices and dark details of the law, far removed from the international spotlight. Many other delegations also wanted to save the independence of Article 7 for that very reason.ss The Third Committee voted as follows. The phrase "all are equal before the law" was adopted unanimously; "without any discrimination" was adopted by 33 votes to 8, with 2 abstentions; "�g_ainst any discrimination in violatioJLof this Declaration" was adopted by 46 votes to none, with 1 abstention, probably the South Mrican vo_te; and the phrase "and against any incitement to such discrimination" was adopted by 41 votes to 3, with 2 abstentions (p. 240). We should note that a very great majority of the delegations voted to recognize the fact that everyone has the human right to be protected against Nazi and other kinds of hate speech or incitement to discrimina­ tion. There is no real conflict between this right and the rights to freedom and speech (Article 19) and of association (Article 20), which Nazis have just like anyone else. There everyone is said to have the right to practice freedom of speech and association, while here, in Article 7, everyone is said to have the right to be protected against this kind of speech. It is understood that the government will balance these two rights in light of the limitations spelled out in Article 29.

48

Chapter 2

Article 8

This article says that "everyone has the right to an effective remedy by the compe­ tent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." As if to make up for the very complicated drafting history of Article 7, the origin of this article is remarkably simple. When Article 7 arrived at the Third Committee, the Mexican and Cuban delegations proposed similar amendments to the effect that everyone had the right to "an effective judicial remedy" (Mexico) or "a simple, brief procedure for obtaining the protection of the courts" (Cuba) when his basic rights had been violated.84 This right had not been part of the draft and the delegates quickly recognized it as a new feature and right to be added. By way of an explanation Pablo Campos Ortiz, the Mexican delegate, pointed out that Article 8 was recognized "by most national legislation." Then, as if he wanted to correct the absence of accountability in Article 7 (to which discussions he had not been a party), he added that this new right "assured protection against the acts of pub­ lic authorities who violated a person's fundamental rights" (230). He mentioned the fact that this right was included in the Bogota declaration twenty-one Latin American nations (plus the U.S.) had adopted that previous April. Santa Cruz of Chile reminded his colleagues that consideration of the draft declaration "would show that no article contained mention of protection of individual rights against abuse of authority" and "that the idea embodied in the Mexican amendment filled a lacuna which was very evident in the draft declaration" (p. 233). Ljuba Radevanovic, the representative of Yugoslavia, "found the [Mexican] amendment difficult to accept . The amendment sought, in effect, to permit the judi­ cial branch of a Government to correct abuses committed by the executive branch; it could therefore be applied only in those States where a definite separation between the two existed" and was therefore "quite incapable of universal application" (235). Percy Corbet of the United Kingdom was also "troubled by the words "fundamental constitutional rights." "Her country had no written constitution; therefore the word "constitutional" had a special meaning when applied in the United Kingdom" (237). She, too, felt the matter should be raised in connection with the covenant, as did Alan Watt, her colleague from Australia (240). Santa Cruz responded to these objections. The new right, he said, fit in very well with the contents of Article 10 "in which provision was made for the protection of the individual against abuses by other individuals or by the authorities in cases where he was accused of a crime. The Mexican amendment completed those safeguards by in­ cluding guarantees against authorities who might a ttem pt to infringe the individual's constitutional rights" (239). In response to the point made by the United Kingdom representative he suggested adding the phrase "or by law" at the end of the article (240). This was done, and the amended Mexican proposal was adopted by the Third Committee in its present shape by 46 votes to none, with 3 abstentions (242). The main rationale behind Article 8 was that of the need for protection of the individual against abuses by the authorities. The Reichstag Fire Decree, which Hitler announced after the Reichstag went up in flames, "annulled almost all the basic rights guaranteed by the [Weimar] constitution." 811 Ernest Huber, the Nazi theoretician, con­ cluded from this that "the constitution of the Nationalistic Reich is therefore not

World War II as Catalyst

49

based upon a system of inborn and inalienable rights of the individual [that might] . . . limtt and hamper the leadershie of the�h." 36 Since there no longer were any stan­ dardSlliat fell "outside the realm of the state and which must be respected by the state," officials could not and were not held accountable, he said (p. 124). The result was a totalitarian police state. In response, Article 8 of the Declaration asserts both the need to have the standards and the importance of holding officials accountable under the laws that flow from them. Alberto F. Canas, the representative from Costa Rica to the Third Committee, captured the rationale behind Article 8 when he urged that "certain clauses and articles should be added to the declaration which would make clear that the indi­ vidual being was not being regarded as subordinate to the State . . . . The government of a state could fall into the hands of a small group which could exploit and oppress the rest of the population . . . . The case of Hitlerite Germany had shown that a state which placed its interests above those of its individual citizens entered upon a path which led to war. The Declaration should be," he said, "a weapon with which to op­ pose and combat that concept" (p. 43) . Article 9

Article 9 asserts "that no one shall be subjected to arbitrary arrest, detention or exile." Whether an official police or judicial action is "arbitrary" has to do with the standard against which that official action is measured. And in Nazi Germany the categories which the police and the judiciary used to interpret the laws and decrees of the Fuh­ rer were so vague that citizens could not know whether what they contemplated doing was illegal. In the section that dealt with issues of personal security and integrity of the person we already saw just how many people were arbitrarily arrested, beaten, detained, sometimes exiled and often tortured, shot, or gassed. All of them had the "wrong" kind of blood and were opponents or presumed opponents of the regime. The unpredictable and therefore arbitrary application of the laws permeated the en­ tire system. The officials always could find a "reason," for the standard of legality was whether something conflicted with the German National Socialist world view. Muller reports that the "readiness of the [Nazi] courts to bow to the wishes of their political masters was not limited to criminal cases and discriminatory race laws" (p. 138). A man in Leipzig owned a fleet of taxicabs and was the director of a coopera­ tive of taxicab owners. His disagreement with the Ministry of Transportation came before the Munich Court of Appeals, which told him that the "previously existing legal protection . . . regarding actions of the police" had been set aside by the Reich­ stag Fire Decree (p. 49). Parents who kept their children out of the Hitler Youth were guilty of "abusing parental authority" because that kind of decision undermined "the will of the German people" (pp. 1 3 9, 145). A newspaper editor was fired and the con­ tract he had with his paper was broken because a Nazi official wanted him fired. A known Nazi opponent was refused a driver's license. The daily life of German citizens was replete with these kinds of arbitrary interventions by the state and the police. At the level of the Working Group of the Second Session what is now Article 9 was the first sentence of what then was a longer article. This first sentence read as fol­ lows: "No one shall be deprived of his personal liberty or kept in custody except in

50

Chapter 2

cases prescribed by law and after due process. " 37 Dr. Bienenfeld, the representative of the World jewish Congress, drew the Group's attention to the "danger of usi ng the word 'law' . . . [because] strictly speaking the actions of the Nazis were legal" (SR.3/p. 9). Bienenfeld's suggestion was supported by General Romulo of the Philippines and Malik of Lebanon. When the Group did not heed the warning and accepted the text as received, he repeated it in the full Second Session. He said the poin t he wanted to raise "was of great importance." It was that the text of Article 9 "did not . . . specify the nature of the law. Under the Nazi regime thousands of people had been depr ived of their l iberty under laws which were perfectly valid" (p. 3). He therefore suggested that the word "law" be de fi ned as "law conforming to the principles of the United Nations" (p. 9). Later on, in the Second Drafting Session, Malik elaborated. He said he felt that "the notion of law was left entirely to the subje c tive interpretation of the State." Arbi­ trary arrests did happen and t hey had to be "condemned," which is why he though t that the word "arbitrary " was "probably the most important word in the entire article and must be retained" (SR.23fp. 6). Santa Cruz also wondered about the paragraph being "open to the Nazi interpretation of arres t for any offence" (p. 5). But no changes were made and the sentence was adopted by 11 votes to 0, with 6 absten tio ns. The matter became a moot point when the Third Session of the Commission (by 10 votes to 4, with 2 abstentions) dropped everything from the article except this U.K.flndia­ sponsored s i ngle sentence: "No one shall be subjected to arbitrary arrest or deten­ tion." 38 Hansa Metha, the Indian delegate, spoke for the majority when she s aid that "the Declaration should lay down principles and not become involved in details" (SR.54fp. 4). This short text went to the Third Committee. Upon the recommendation of the USSR delegation and by a vote of 37 to 1 wi th 6 abstentions the phrase "or exile" was added at the end of the article. However, another USSR proposal - to quali fy all three items in the ar ticle (arrest , dete ntion, exile) with the phrase "except in the cases and acco rdi ng to the procedure presc ribe d by prior legislati o n" -was rejected by 20 votes to 6, with 15 abstentions (p. 257). The drafters were just as suspicious of the Com­ munist legal system as they were of the Nazi one. In fact, they we re suspic ious of all domestic legal systems that did not allow for outside review of cases and laws, which is why Malik had said that the word "arbitrary" carries a lot of we i ght in this article.39 ·- -

Article 1 0

Article 1 0 of the Declaration tells us that " everyone is e ntitle d in full equality to a fair and public hearing by an independent and impa rtial tribunal, in the dete rmination of his rights and obligations and of any criminal charge against him." Hitler ruined

the independence of the courts by his appointment of Nazi cronies at all levels of the justice system and by the establishment of sp e cial courts that dealt with the crimes listed in h is own decrees,40 He subverted both the old, established system and created alongs i de it anothe r one that functioned much like revolutionary courts often do . Throughout the entire system prosecutors and judges came to use extremely vague categories of i nterpre tation: the doctrine of criminal types, under which some­ one could be condemned and shot to death not for committing a crime but for being

World War II as Catalyst

51

a criminal "type"; the doctrine of creative interpretation, which allowed judges to "adapt" the Weimar Constitution to life under the Fuhrer; the teleological method, which led judges to look for an ideological meaning and intent behind and under­ lying the laws; the concept of a material crime, which was any activity that ran counter to the National Socialist world v1ew andwnich was closely linked to effusive, medieval codes of honor and loyalty; th e dQ!;1rine..of_gr.asping-the-ess�nces,..according�hich judges graspe d the whole of a situation and did not linger too much on the details · of a case.4Iinese creative moues of legal1nterpretation were III.eant to bring the N azi systern-ufjtrrisprudence in line with what the Fuhrer wanted and when he wanted it. Since Hitler, as Fuhrer, was the great and only real interpreter of the spirit of his Volk, there were in Nazi G e r many no independent and hence no impartial tribunals.42 The nazification of the legal system had gone so far that as soon as the Allied forces took control over German te rritor y they felt it necessary to institute "Funda­ mental Principles of judicial Reform," article 4 of which calls for an "Independent judiciary." This article made it a law that "the promotion of judges will be based solely on merit and legal qualifications." 43 The Second Session of the Commission was informed of these matters by the Institute of International Law.44 The drafters can therefore be said to have knowingly aimed Article 10 at this kind of problem, in Nazi Germany as well as elsewhere. Humphrey wrote the following first draft of this article: "There shall be access to independent and impartial tribunals for the determi nation of rights and duties under the law. Everyone has the right to consult with and be represented by coun­ sel" (AC.1/11). Koretsky, the delegate from the USSR, "drew attention to the use of the adjectives ' independe nt' and 'impartial' . . . and said that these might be d anger­ ous and unnecessary to us e in connection with tribunals of a sovereign State" (SR.3jp. 6). When Ralph Harry, the Australian delegate, asked what he meant, Koretsky "ex­ plained that in his opinion the expression 'independent and impartial tribunals' might be considered as an invitation to evaluate the courts of the judiciary of independent governments. The possibility of such evaluation, he felt, should be eliminated." He said he preferred the phrase "open tribunals," which did not have the same poss ibility for "criticism of certain courts" (p. 6). The problem with these comments is that this section of the Decl aration , and especially Article 10, was drafted precisely to counteract the lack of independence of the Nazi courts that had led to the horrors which had outraged the consciences of all the representatives, Koretsky's included. Yet he did not think that there was a stan­ dard outside of sovereign domestic legal systems by which they could be judged. He "pointed out that in a specific case the courts of certain countries [such as the U.S.] might justify aggression of certain persons against others because of the colour of their skin. He won dere d who would be in a position to say that such courts were or were not impartial . " 45 He might also have been thinking about the negative world reaction to the "open" and "public " purge trials conducted by Stalin, which were roundly con­ demned for lacking indep endence and impartiality. The inclusion of this article was sponsored by Cassin (SR.4/p. 8). The Working Group of the Second Session took over the first of Humphrey's (above cite d) two sentences unchanged, but the full Secon d Session (upon the recom­ mendation of William Hodgson, the Australian delegate) adde d to the first sentence

52

Ch•pter 2

the phrase "of any criminal charge against him" (SR.36/p. 10) . By 3 votes to 0 with 3 abstentions the same Working Group expanded the second sentence to read that the defendant "shall be entitled to aid of counsel, and, when he appears in person to use a language which he can speak" (AC.2/SR.4jp. 7). However, these details were dropped in the Third Session. (For further history of this second sentence and the right to use one's native tongue in courts of law, see section 2 of the next chapter.) The Third Session adopted the following short U.K.jindia-sponsored text: "In the determination of his rights and obligations and of any criminal charge against him, everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal" (SR.54fp. 8). The phrase "in full equality" was added upon the insistence of the USSR delegation over the objections of those who felt that that right had al­ ready been covered by Article 7's right to equality before the law. Pavlov's response was that "equality before the law and equality before the courts were not synonymous. He could," he said, "quote many examples to show that coloured and white people were in theory equal before the law but that such was certainly not the practice of the courts." 46 The French delegation turned this Soviet insistence into a formal proposal, and the insertion of the clause was accomplished by a vote of 7 for, 6 against, and 6 abstentions (p. 12 ) . The words "and public" were added in the Third Committee as the result of a Cuban amendment (p. 263). The Declaration contains two more legal human rights. Article 11 is the subject of the next section and Article 12 will be discussed at the beginning of Chapter 4. 2 . 3 The Problem with the Nuremberg 'n'lals

Because the Universal Declaration was written right after the Nuremberg war crimes trials had concluded (and while-similar ones in okyo were still gomg oli)we might be led to think that there is a very close connection between the two historic events. There 1s a connection, but 1t 1s not as clos-e--anhe-dates suggest. Many nattonal consti­ tutions contain safeguards against retroactive lawmal«ng;and it was therefore natural to transfer this provision to the international plane and put it in the Declaration. The problem was that some delegations thought that at least some of the Nuremberg charges were not firmly grounded in pre-existent international law, which in their eyes made the judgments questionable from a strictly legal point of view. In this section I explain why the majority of the drafters wanted to adopt a text that kept its distance from those war crimes trials and what they meant or did not mean for the develop­ ment of international law. The issue of these trials is raised by the occurrence of the word "international" in the second paragraph of Article 11. Both paragraphs of Article 11 go straight back to Humphrey's Article 26, which read as follows: "No one shall be convicted of crime except by judgement of a court of law, in conformity with the law, and after a fair trial at which he has had an oppor­ tunity for a full public hearing. Nor shall anyone be convicted of crime unless he has violated some law in effect at the time of the act charged as an offense, nor be sub­ jected to a penalty greater than that applicable at the time of the commission of the offense" (AC.1/3). Cassin made two separate articles out of these two paragraphs.•, He also took the first clause of the first paragraph and made it read: "No one shall be held guilty of any offence until legally convicted." That became Article 11, paragraph 1 :

;

World War II as Catalyst

5.1

"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to the law." In the Third Session of the Commission a brief discussion took place of the need to sometimes not have legal proceedings be public; it was felt that the limitations set forth in Article 2 (what became 29) would cover those instances. Consequently, the Third Session decided by 8 votes to 6, with 2 abstentions, to delete from the first sen­ tence the phrase "in a public trial at which he has had all the guarantees necessary for his defense" (SR.55jp. 16). Pavlov of the USSR strongly objected to this action and proposed an alternative reading.48 This led to the appointment of yet another sub­ committee, composed of the representatives of France, Lebanon, and the USSR (see 3.3 for how these details were brought back into the article). Some of the more impor­ tant votes taken in the Third Session, which were not altered in the Third Committee, follow. The insertion of the phrase "according to law" after the word "guilty" was rejected by 7 votes to 6, with 2 abstentions. "Everyone charged with a penal offence is pre­ sumed innocent until proved guilty" was adopted unanimously. The phrase "in a trial at which he will have had all the guarantees necessary for his defence" was adopted by 10 votes to 3, with 3 abstentions. "Trials shall be public" was adopted by 10 votes to 1, with 5 abstentions. But the phrase "subject to exceptions made in the interests of pub­ lic morals or security" was rejected by a vote of 7 to 4, with 5 abstentions (SR.56jp. 2). The Nazi model of criminals as sick people dismissed the need for any of the special protective measures enumerated in Article 1 1 : the presumption of innocence, the need for a public trial, the right to the means for one's defense, and protection from being charged under a retroactive law. Sick people don't really need any kind of special legal advice to defend themselves; presumably they could not have done otherwise than what they did. Admission procedures to hospitals need not be public, and there is no need to weigh the punishment against the severity of the crime, for the jurisprudential "doctors" know best. Under this scheme of things it is not crucial that a law be promulgated or made known to those to whom it is addressed, as if their behavior was a question of will rather than of blood. Indeed, if criminal behavior is thought to be the result of an illness, then the problem of retroactivity does not arise. It would not be at all unfair to judge someone under a decree which the Fuhrer issued after the sick act was committed. The patient should be cured regardless of when or how he or she contracted the illness of going against the Fuhrer's wishes. It is because the provisions of Article 11 were constantly violated by the Nazis that the drafters agreed so readily on � their inclusion in the Declaration. For instance, Pavlov, made special note of the (a�t that the Declaration "contained the important principle of innocence until proved guilty, which represented great progress from the inquisitorial trial concepts of the Middle Ages to which Nazi Germany had reverted" (SR.54jp. 14). The only two details that involved any protracted discussion were a de­ fendant's right to use his native language in courts of law, which I discuss in section 3.3, and the right not to be charged under a law that wasp assed. . after the crime was . committed, to which we now turn. Atthe start of the Second Session of the Commission the article on nonretro­ activity read as follows: "No one can be convicted of crime unless he has violated some law in effect at the time of the act charged as an offence nor be subjected to a -

-

-

--

54

Chapter 2

penalty greater than that applicable at the time of the commission of the offence. No one, even if convicted for a crime, can be subjected to torture" (21/p. 75). (The last sentence was dropped from this article in the Third Session and will not figure in this drafting segment.) Both the Belgian and Philippine delegations had submitted amendments that in very similar wording brought up the question of the war crimes trials.49 General Romulo, the Philippine representative, explained that his amendment (and by impli­ cation the Belgian one as well) was "especially concerned with the Nuremberg War Crimes Trial and with all the m�or War Crimes Trials, w_!!ich, according to the origi­ nal text of Article 10, would be illegal." He was referring to �he fact that at least some of the categories of cnmes witl:l wliicli these war criminals were charged were not an established part of international law at the time the trials were held. Article 6 of the Nuremberg Charter charges the war criminals with three kinds of crimes: (1) crimes against peace, (2) war crimes, and (3) crimes against humanity. Most of criminal inter­ national law until this time was based on the Hague and Geneva Conventions that regulated the conduct ofwar and the treatment of prisoners. But the charges of crimes ag�eace and humanity went beyond a narrow reading of those conyenti�ll_s and _ therefQre could he seen all uiGiating the prohibition of retroactive lawmaking.50 According to the Philippine and Belgian delegations the blanket prohibition of nonretroactivity in the article as it stood could easily create a conflict with the judg­ ments handed down at Nuremberg. Since these international trials were set up to combat the same horrors that led to the writing of the Declaration these delegations wanted to avoid creating even the appearance of conflict between the Nuremberg judgments and the Declaration. They therefore proposed to add the following para­ graph: "Nothing in this Article shall prejudice the trial and punishment of any person for the commission of any act which, at the time it was committed, was criminal ac­ cording to the general principles of law recognized by civilized nations." 51 The phrase "general principles of law recognized by civilized nations"_w�s ta�en from Article 38 of the Statute of the International Court ofJustice, which is the legal a!l!' of the United _ Nations. Because this paragraph uses as a yar
World War rr as Catalyst

55

the other hand, he could understand the view that the Nuremberg War Crimes Trial should not be declared illegal. He proposed, therefore, that the words in the Phil­ ippine amendment 'at the time it was committed, was criminal' be replaced by the words 'constitutes a grave crime against humanity' " (SR.36fp. 14). Dehousse objected to this Chinese wording because--.'grave crhnes-against humanity" was "only one of three categories of crime which had been defined and pronounced punishable ac­ cording to international law" (SR.37/p. 14). The other two were the crimes of making and conspiring to make aggressive war and of violating the laws of conducting war as developed by the 1899 and 1907 Hague Conventions and thereafter. The phrase "grave crimes against humanity" was therefore seen as limiting and rejected by 6 votes to 4 with 7 abstentions.64 Eleanor Roosevelt said she would rather see the Nuremberg clause in a footnote and Wu was still opposed because he thought the Philippine/Belgian text "would be open to abuse and should not be added simply to justify the Nuremberg trials" (p. 4). The Second Session of the Commission adopted the Nuremberg clause over these ob­ jections and added it to Article 11, paragraph 2 by 8 votes to 1, with 8 abstentions. In the Third Session of the Commission the above quoted Nuremberg clause was paragraph 2 of Article 8 [eventually Art. 11] of the Geneva text, which was taken as the basis for discussion. Both the Chinese and the joint U.K.-India amendments pro­ posed that it be deleted, while a French proposal retained it.55 This meant that the clause had to fight for its survival. Bienenfeld, the representative of the World Jew­ ish Congress, defended the retention gf the ��agraph. "Omission of that paragraph _ would be contrary to the principles of the Hague Convention of 190'r-as well astfie principles established fu the lnternat1unal-Milit.ar-y�!:Jbunals-at the-Nuremberg Trials. Those principles protecte�_!h�__!a� ()! �uml:l��t aga�nst violation by national laws (as _ had luij;!pened in the case__ofNazLGerJ!lanr-)_, Qmission of-that-paragraph-would-con­ stitute a step back in international law" (SR.54/p. 13). Pavlov supported the clause, but went back to his earlier demand that the expres­ sion "principles of law recognized by civilized nations" be replaced by "those recog­ nized by democratic countries" (p. 14). Consistent with his country's proposal, Chang, the Chinese representative, thought paragraph 2 "should be deleted" (p. 14). Ronald Lebeau, of Belgium, shared the view of Bienenfeld on "the importance of the second paragraph" (p. 15). Also defending its retention, Joza Vilfan, the Yugoslavian represen­ tative, pointed out "that the defence at the Nuremberg Trials had based itself on the --non-retroactivity of penal law. Moreover, several German war-criminals had been acquitted on the basis of legalistic interpretation of the principle of non-retroactivity of laws. . . . Consequently, it was most important to retain paragraph 2, and he thought, in that connection that some of the conclusions reached at the Nuremberg Trials (see document E/CN.4/W.l9) could well be included in the present Declaration." The document he mentioned was the War Crimes Commission Report that I have been citing, and we have already seen that the Commission found itself in a bind on the matter.56 A subcommittee of the United Kingdom, India, France, China, and Yugoslavia was set up to decide the text of the article. That committee decided to drop the Nurem­ berg clause as a whole and to subsume that problem under the word "international," which it put into the text of this second paragraph: "No one shall be held guilty of any

56

Ch•pter z

offence on account of any act or omil;sion which did not constitute an offence, under national or international law, at the time when it was committed" (SR.56Jp. 4). This is very close to the wording we have in the final product. Lebeau, the Belgian repre­ sentative, wished to amend this text by inserting the words "the general principles of" before the phrase "i,nternational law." "His amendment was intended to broaden the concept of international law to include unwritten as well as written law. He pointed out that the general principles of international law were invoked at the Nuremberg and Tokyo trials. The simple phrase 'international law' might be interpreted to mean only written law laid down in conventions" (SR.56fp. 4). Lebeau's suggested insertion would have had the effect of incorporating the new territory annexed into interna­ tional law by the Nuremberg trials (conspiracy to commit aggressive war and crimes against humanity) into the Declaration. Cassin gave this suggestion his support: "The principles of international law," he said, "could be derived from various sources such as national conventions, the appli­ cation of national law by national tribunals and special circumstances. The Nuremberg and Tokyo tribunals were instituted by the victors in the last war to repress attempted violations of international law. [He] emphasized the importance of preserving those elements of law which were common to the law of most nations, and therefore favored the broader formulation suggested by the representative of Belgium" (p. 5). Geoffrey Wilson of the U.K. objected to the broadening because he felt the new phrase was too vague and was not "less ambiguous" than the term "international law." Lebau then expressed readiness to modify his amendment and to go back to the Statute of the International Court ofJustice: "the general principles of law recognized by civilized nations.'' 57 But Pavlov objected to the statute's distinction between civi­ lized and uncivilized nations. He would, however, support "paragraph 2 in its original form" if all it meant was that "the principle of punishing fascists and Nazis for war crimes had been made part of international law by the very fact that the Nuremberg trials were held" (p. 5) . Eleanor Roosevelt "recalled that the Geneva text cast doubt upon the validity of the Nuremberg judgment. She supported the retention of what she felt was the broader term 'international law' " (p. 6). Omar Loufti, the Egyptian representative, pointed out that "the Legal Committee [by GA Resolution 95(1)] had [already] pro­ posed that in light of the Nuremberg trials, the International Penal Code of Law should be revised to cover war criminals" (p. 6). He implied that there was therefore no need for the Human Rights Commission to worry about updating the international legal system in light of the Nuremberg holdings. Pavlov, too, "was ready to accept the Sub-Committee's text," which was adopted by a vote of 12 to 0, with 3 abstentions (p. 7). Although he still stressed that the word "international" "should be interpreted in accordance with the provisions of Article 38 of the Statute of the International Court," Lebeau "withdrew his amendment" ( SR. 57jp. 7). In the Third Committee no changes were made in this second paragraph of Article 11, except that it added the last sentence: "Nor shall a heavier penalty be im­ posed than the one that was applicable at the time the penal offence was committed." This provision had already been proposed in the Third Session, where it had failed nar­ rowly. The Panamanian delegation had proposed it again, and this time it was adopted · - ' · L - - · · � .. ,.h rllo.rn ��ion bv a vote of 19 for, 6 against, and 16 abstentions (p. 273).

World War II as Catalyst

57

The Third Committee did not change the text it received from the Third Session, but the rejection of several amendments pulled it in opposite directions. Avoiding both extremes, the Committee decided to stay with the received text and thereby keep its distance from the Nuremberg problem. Some delegations expressed discom­ fort with the fact that the existing text seemed to give the stamp of approval to the Nuremberg judgments. They felt that perhaps those trials had broken the rule of non­ retroactivity and wanted to see more distance between the Declaration's text and the Nuremberg judgments. The opposing point of view was that the Declaration's text did not give enough support to the Nuremberg judgments and could lead to unwarranted criticisms of those holdings. The Cuban delegation spoke for those who wanted more distance. It had sub­ mitted an amendment which proposed that paragraph 2 state: "Every accused person has the right to be judged by tribunals established prior to the offence with which he is charged" (A/C.3/224). Since the Nuremberg and Tokyo tribunals were obvi­ ously established after the crimes had been committed this amendment questioned the legality of the judgments they rendered. Guy Perez Cisneros, the Cuban delegate, explained his delegation's position as follows: "In view of legal and moral principles which it could not surrender, the Cuban delegation was equally averse to voting in a way which might be taken as a direct or indirect approval of the Nurnbergjudgments. The proposal to include in article 9 [11] a reference to the Nurnberg Trials would weaken rather than strengthen that article and might be considered as an indirect criticism of the trial as it would stress the contradiction between the precept Nullem crimen sine praevia lege penale and the method adopted at Nurnberg." He "felt that in those circumstances it would be wiser not to emphasize that contrast and to abandon the idea of mentioning the Nurnberg Trials" (p. 268). The Cuban amendment was rejected by 18 votes to 8, with 17 abstentions (p. 274). What the Cuban delegation had been aiming at was a strict and narrow interpreta­ tion of international law. Accordingly, after the present text had been adopted with the word "international" in it, the delegates of Mexico, Venezuela, and Cuba "ex­ plained that they had favoured the adoption of article 9 [11] in its amended form on the understanding that the term 'international law,' appearing in paragraph 2 of that article, should be interpreted as meaning positive international law" (p. 274). This was their way of raising douots about the valioity oftlieNUrenib-erg trials, or at least about those aspects they felt contravened the rule of nonretroactivity, narrowly construed. Those delegations who felt that the Declaration's text did not give enough ex­ plicit support to the Nuremberg judgments believed that the existing text could be read as implying a criticism of those judgments, which they wanted to avoid. Because paragraph 2 speaks so strongly against retroactive lawmaking, Count Carton de Wiart of Belgium worried that it "might be used as a basis for the argument that such trials as the Nurnberg Trials had been illegal. He agreed with those who had held that those trials had been based on the laws of the human conscience which were higher than national laws. He hoped that view would be upheld by the Committee and [be] re­ corded by the Rapporteur in the report to be submitted to the General Assembly in order to refute any future misinterpretation of the paragraph" (p. 265). Alexander Contoumas, the Greek delegate, shared this Belgian worry. He "said that the idea of non-retroactivity in criminal law was included in the general legal

58

Chapter 2

principles of his country." The Greek delegation "recognized, however, that promul­ gation of the principle in the declaration of human rights might, by implication, cast doubts upon the validity of the trials of war criminals in general, and of the trials of Nurnberg and Tokyo in particular. In order to preclude such a possibility Mr. Con· toumas thought it would be enough to have the Rapporteur mention specifically in his reports the doubts in that regard expressed during the general debate on article 9 [11)" (p. 271). Most of the delegations held a view between these two extremes, which is why they supported what exists now. They did not want the Declaration to comment ex­ plicitly on the merits of the Nuremberg process, a task they felt had been assigned to the Committee on Codification of International Law, but they also did not in any way want to cast doubt on the Nuremberg process. The phrase "under . . . international law" expressed that middle of the road. Benigno Aquino, of the the Philippines argued that the "prohibition of ex postfacto law, which was part of the constitutional history of many countries had to be recorded in the declaration." He thought that "the fears of the Belgian representative , with respect to any questioning of the legality of the Nurn­ berg Trials or Tokyo Trials appeared unwarranted. It was obvious that considerations of international peace and welfare must supersede national considerations." 58 The Communist delegations also did not think that there was any conflict be­ tween..!_ stro'itg prohibition of retroactivity and TheNurembergjmlgments;-Pavlov of the USSR "saw no grounafor-fear-B-&xpr-essed-by-t-he-Belgi� entative. The crimes of those brought before the Nurnberg Tribunal had constituted a glaring vio· lation o!._all the laws of war ; they had in effect, been crimes under internatio�, There was no cause to fear that the adoption of paragraph 2 of article 9 [II] In Paris­ a city which but a few years ago had itself been under Hitlerite occupation-would be considered by anyone an amnesty for those crimes" (p. 267). Ljuba Radevano­ vic, the delegate from Yugoslavia, observed that "at the Nurnberg Trials the German war criminals had tried to invoke that principle [of nonretroactivity] . The Nurnberg Tribunal had rejected that concept. The nulla poena sine lege principle was almost uni­ versal in .national law; in �nal law, on the other hand, the responsibility was different ?"lurn1ei-more, "the General Assembly had adopted a resolution codifying the legal findings of the [Nuremberg] decisions." 59 The text of the paragraph 2 on which the vote was taken was the one submit­ ted by the delegation of Panama: "No one shall be held guilty of any (penal) offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the (penal) offence was committed" (p. 269). This paragraph was adopted with 19 votes for, 6 against, and 19 abstentions . After that, on the recommendation of the United States delegation, the word "penal " was twice inserted into the text of this paragraph (p. 273) . 2.4 Democracy, Free Speech, and Hate Speech

Article 21 of the Declaration says that "everyone has the right to take p ar t in the gov­ ernment of his country, direc tly or through freely chosen representatives ." There is a world of difference between how the will of the people was expressed in National

World War li as Catalyst

59

Socialism and the Declaration's demand, made in Article 21's paragraph 3, that that will be expressed "in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting pro­ cedures." It is difficult to overestimate the importance of these additional electoral stipulations. Already in Mein KampfHitler had described the young National Socialist Move­ ment as being "in its nature and inner organization anti-parliamentarian; that is, it rejects, in general and in its own inner structure, a principle of majority rule in which the leader is degraded to the level of a mere executant of other people's will and opinion" (p. 344). It is not that Hitler was sloppy about the details of democracy, but that he rejected the very principle of majority rule and hence the foundation stone of the democratic state. He defended instead what he called "the personality principle" of leadership and government and wanted it applied "from the smallest community cell to the highest leadership of the entire Reich" (p. 448). The personality principle dictated that the best, strongest, and brightest must rule those who are weaker and less pure.60 Hitler was consiste �t when he wrote in Mein Kampf that "a philosophy of life which endeavors to reject the democratic mass idea and give this earth to the best people -that is, the highest humanity- must logically obey the same aristocratic principle within this people [also] and make sure that leadership and the highest in­ fluence in this [Aryan] people fall to the best minds. Thus it builds not upon the idea of majority, but upon the idea of personality" (p. 443). While most of the world's constitutions in the late 1940s also said that the au­ thority of government derived from "the will of the people," they differed greatly from Hitler's conception as to how that will was to be expressed. Different constitutions expressed different aspects of the democratic process. The inclusive list in the Dec­ laration's Article 21-periodic. equaL universal, djrect (or,through representatives), and secret suffrage -were present in the constitutions of China, France, the USSR, and Yugoslavia.61 Humphrey included three of these ("periodic, free and fair") in his first draft of the article and Cassin added the feature of "or through freely chosen rep­ resentatives." 62 In the first discussion Toni Sender, the representative of the American Federation of Labor, "stated that in her opinion this article should conclude with the words 'and by secret ballot' " (AC.l/SR.9/p. 2). Eleanor Roosevelt supported this sug­ gestion and it was done (SR.l4jp. 3). The Third Session, which was eager to cut the length of the document, dropped most of democratic details and adopted these three short paragraphs: "Everyone has the right to take part in the government of his country, directly or through his freely chosen representatives"; "Everyone has the right of access to public employment in his country"; and "Everyone has the right to a government which conforms to the 'II of the people." 65 Eve s o e people" was almost lost to the artiCle, but was saved by Cassin (SR.62/p. 3). The secrecy provision was taken out pri­ marily because the British delegation felt that "in non-metropolitan territories [i.e., in the colonies] the use of the secret ballot could not be imposed when its effect might be contrary to the intentions of Article 74[73] (b) of the Charter," which speaks of the need to assist the colonial peoples "in the progressive
�

60

Chapter 2

at home, hut not in the colonies. A USSR-sponsored clause that included the compro­ mise phrase "and where possible by a secret ballot" was also rejected by 9 votes to 6, with 1 abstention (SR.62jp. 7). The most important amendments in the Third Committee were the ones that sought to get the lost democratic details put back into the third paragraph of the article. "To make more clear how the will of the people shall find its expression," the Swedish delegation proposed to add the clause "manifested in general and free elec­ tions or in equivalent voting procedures." Omitting the requirement of freedom or noncoercion, the USSR delegation proposed this otherwise very complete list: "as ex­ pressed in elections, which shall be conducted periodically and must be universal and equal and held by secret ballot." The Cuban amendment gave "everyone" the right to participate "in the Government of his country directly or through his representatives chosen by free and periodic elections, which shall be by secret ballot." The French amendment wanted to see the will of the people "expressed at free and genuine peri­ odic elections." The Iraqi amendment spoke of "the consent of the people exercised through periodic elections, referendum or plebiscite ::88 The following Chinese text found most favor with the delegates: "The will of the people is the source of the authority of government: this will shall be expressed in periodic elections, which shall be universal, genuine, equal, and held by secret ballot, or manifested in equivalent free voting procedures" (AjC.3j333).66 Mter the delegates voted to retain the clause "and held by secret ballot" by 38 votes to 2, with 7 ab­ stentions, they adopted this Chinese text by 39 votes to 3, with 3 abstentions. Haiti abstained on the secrecy requirement because of the door that opened to possible restrictions on the right to vote for illiterate people. Emile Saint-Lot, the Haitian dele­ gate, "reminded the members of the Committee that they were drafting a declaration which was not addressed solely to the Western hemisphere, but to the entire world; and according to figures supplied by UNESCO, illiteracy was still very common, 85 . percent of the population of the world being illiterate." 6'7 Though the U.S. delegation abstained in the vote on the secrecy requirement, in the discussion Durward V. Sandifer, its representative, did admit that "a secret ballot was necessary if the election was to be fair and impartial" (p. 452). A note of realism was injected with the Lebanese representative's observation that "the fact that elec­ tions would be held periodically and by secret ballot would not ensure that they would be fre e. The Nazi government could have subscribed to all of those ideas and its elec­ tions would still not have been free," he said.88 In the First Drafting Session Hernan Santa Cruz of Chile had "suggested that a provision concerning the right to form political parties be added" to the article (SR.9jp. 2). Cassin had responded that this was not necessary because "the liberty to form political parties already had been mentioned in Article 23 [20], on the freedom of peaceful assembly and of association for political and other purposes" (p. 2). At the First Session of the Drafting Committee that was true, but in the Third Session that list of association purposes was dropped from the article. Therefore, it made sense for Dehousse, the Belgian delegate, to come back to the matter in the Third Committee, where he indicated that he wanted "according to the party system" included after the word "periodic." His reason was that "a duality or plurality of parties . . . was essential to the efficient functioning of the democratic system" (p. 470).

World War II as Catalyst

61

Pavlov was quick to respond that "in his country, the bourgeois class had ceased to exist. There thus remained only workers and peasants," who could easily look after their own interests and he saw "under the prevailing [Soviet] system . . . no justification for the creation of other parties. The Belgian amendment was absolutely irreconcil­ able with the social structure of certain member States" (p. 471). Dehousse "withdrew his amendment as a conciliatory gesture. He pointed out, however, that there existed in the U. S.S.R. not only the Communist party, but also the non-party block" (p. 471). Eduardo Plaza, the Venezuelan delegate, regretted this withdrawal and, judging from just Article 21, it does indeed seem that the Universal Declaration does not support the right to a multiparty political system. However, all the articles in the Declaration are subject to the prohibition of discrimination on the grounds stated in Article 2 (see Chapter 3). That means that in his or her enjoyment of the rights of Article 21 no one may be discriminated against on the basis of "political or other opinion." This con­ nection between Article 21 and Article 2 was not lost on the drafters. Now that we have the machinery of the democratic state before us, the absence of the word "democratic" itself, both in Article 21 and in the rest of the Decl needs3-n explanation Given that World War I I was fought to make the world free for democracy, it is certainly odd that the noun "democracy" never occurs in the Dec­ laration at all, not even in the Preamble, and that the adjective "democratic" occurs only once, in Article 29, paragrap!I 2. The same query arises with respect to the terms fascism and Nazism. Given that these movements gave ideological sanction to the hor­ rors that caused the moral revulsion that led to the proclamation of the Declaration one would expect the ideological culprits to be named at least in the Preamble. Thus, ideologically the Declaration is a very bare document; it mentions neither the win­ ning ideology (democracy) nor the losing one (fascism). The reason for the absence of these terms is that they got caught qp i_n the rhe.!_ori� of the Cold War. Th1s metonc distorted their meanings and made them unsuitable for use in a document that was designed to be acceptable to all the participating delegations. Below I discuss a series of amendments, involving Articles 27, 29, 19, 20, and 7, all of which called forth this Cold War of words. But they also cast light on the substance (and not just the word­ ing) of the articles involved.

�,

The Term "Democracy" in Articles 2 7 and 2 9

Atomic bombs were dropped on the Japanese cities of Hiroshima and Nagasaki in 1945 and for many years thereafter the United States government held internal discus­ sions on whether and how to share the atomic secrets with other nations, especially its allies. The existence of those unshared or selectively shared secrets greatly intensified the Cold War. These secrets also form the background to an amendment proposed by the Soviet Union to Article 27, which deals with the right to participation in culture. I give a full analysis of this article in Chapter 6 (6.3), but will here report on one USSR amendment that might have been accepted but for disagreements about the word "democracy." The atomic bomb had given the United States an edge in the Cold War and caused the Soviet Union to be greatly interested in the uses of science for pro­ gressive, democratic, and peaceful purposes. Its delegation proposed that to what is now Article 27 be added the stipulation that "the development of science must serve

Chapter z

62

the interests of progress and de mocracy and the cause of i n ternational peace and co­ operation" (E/800). Pavlov, the USSR delegate to the Third Committee, explained that he was not sur­ prised that this USSR proposition had "met with opposition from cer tai n delegatio ns . " "Indeed," he continued, "where science was subservient to militarism and where intel­ lectual forces were concentrated on producing a terrible weapon of aggression for the destruction of millions of peace loving human bein gs , the USSR thesis that science must be placed at the service of peace became unacceptable" (p. 623) . The Arge ntina delegation said that it was sy mpathetic to the proposal, but the word "democracy" was too controversial and science should be made to serve mankind. Pavlov thought that was not enough. " Citi ng facts from the United States Press, he poin ted out that in that country scientific research was controlled by the military authorities and developmen t for m ili tary purposes . . . . The universities were transformed into veritable laborato­ ries of research of military purposes. Men of learning found their person al freedom restricted" (p. 629). Mter the vote had been taken and the amendment defeated, Pavlov observed that "it was illogical to include in Article 23 [26] a definition of the purposes of education and to refuse in Article 25 [27] to lay down a similar definition of the purposes of sci­ ence. It should not be forgotten that scien ce in the modern world could and often did serve the interests of aggression and reaction and was elaborating means for massa­ cring peaceful populations . . . . It was in that spirit th at thirty-two American scientists had rece n tly protested agai nst their work being used to fu rther not progress but de­ struction" (p. 636) . Stephan Demchenko of the UKSSR also "quoted US publications to show that in the US there was increasing military control in science, education and industry," but that "humanity expected the adoption of the USSR amendment" (p. 633). The re we re two kinds of objections to the USSR amend ment, one genuine and one spurious because it was primarily fed by Cold War rhetoric. The genuine obj ec tion came from delegations who really believed that it was better not to tie science to any kind of external standards at all, except the pursuit of truth. Count Carton de Wiart, the Belgian delegate, for instance, thought that "the USSR ame nd ment was an attempt to assign science a political mission. While he wanted science to serve the cause of peace and co - operation among nations, he thought it was not for the dec­ laration of human rights to define its role. In any case, if it had to be done it would have been better to say that the aim of science was the search for truth" (p. 622). The Cuban delegation also "was convinced that science should remain entirely free and that the State should not interfere at any stage in scientific or literar y creation. On the contrary, it was democracy which should be placed at the service of science, the latter itself the servant of truth. Those who had faith in man could not fear truth. That was the spir it underlying the declaration of human rights." 69 The more spurious objection enmeshed the USSR amendment in the rhetoric of the Cold War. Eleanor Roosevelt immediately attacked the amendment because "the words 'progress' and 'democracy' applied to abstract ideas for which no uniform inter­ pretation existed. It seemed dangerous to adopt a text which could be interpreted as a pretext for the enslave ment of science. The US delegation would under no circum­ stances agree that science should be placed at the service of politics. Yet that might ­

·

World Wa r II as Catalyst

63

be the practical effect of the USSR amendment." 7° Corbet of the United Kingdom said her delegation shared all the USSR goals, but "unfortunately, the conception of democracy and of progress did not seem to be the same everywhere. The word 'democracy' could be interpreted in many ways. She thought science should not be at the service of an ideology." 71 The USSR amendment was voted on in three parts, first on whether "the devel­ opment of science must serve the interests of progress," then on whether it should serve "democracy," and last on whether it should serve "international peace and co­ operation." All three proposals were rejected. In spite of the sympathy expressed for the basic proposition, none of these votes was a close one. This brings to mind jorge Carrera Andrade's explanation of the Ecuadoran vote, which supports the suggestion that the amendment was not dealt with on its merits. He said that he had "voted in favour of the USSR amendment in the firm conviction that science should serve the interests of life rather than death, of peace rather than war. In so doing, he had con­ sidered only the ideas, and not as other delegations appeared to have done, political matters" (635). Salvador M. Graziadio, the Argentine representative, also "had voted in favour of the USSR amendment in the conviction that science should serve the interests of progress and international peace." 72 One of the clearest discussions of the phrase "democracy" took place in con­ nection with Article 29 where the drafters chose to include the phrase "democratic society" instead of the USSR-sponsored phrase "democratic State" (see 7.1). The tell­ ing choice between these two phrases resulted from a genuine desire on the part of the drafters to protect the individual against the abuse of power by the modern state, but it was at the same time influenced by the rhetoric of the Cold War. I focus on the latter cause. Without much opposition the Working Group of the Second Session had adopted the following sentence as part of what was then Article 2: "In the exercise of his rights and duties everyone is limited by the rights of others and by the just requirements of the democratic state."78 In the full Second Session the delegations from Uruguay and the United Kingdom sought to have the phrase "democratic state" removed but did not succeed. From there it was taken over by the Second Session of the Drafting Com­ mittee, until it ran into trouble in the Third Session of the Commission, which is when the Cold War started to make its impact felt more clearly. The joint United Kingdom-India proposal to the Third Session was very short and therefore very popular. It did not include the limitation based on the "require­ ments of the democratic state." A French proposal still contained the limitation of "the just laws of the democratic State." 74 Santa Cruz, the Chilean delegate, stirred up a hornet's nest when he expressed his preference for the U.K.-India text with a warn­ ing about Communist abuses to which the Geneva text might lead. "The notion of the just requirements of the democratic State varied from country to country," he said. "For example, Marxism aimed at the creation of a classless society in which the State as such no longer existed. This definition of its aims showed that its highest stage had not yet been achieved in countries like the USSR where a powerful State existed. The USSR Government considered that even in that intermediate stage it represented a democratic State." Also, "the organs of information, culture and the arts were con­ trolled by the party because the revolutionary conscience was the sole source of law."

64

Ch•pter 2

Santa Cruz, "for his part, could not imagine that dictatorship, even if temporary, could exist side by side with democracy." 711 Pavlov responded at length. He began by pointing out that the notions of the State and democratic society were embodied in documents signed during the war. No difficulties then had appeared because the conception of democracy provided a com­ mon basis for every interpretation; there was thus no reason for rejecting it today. . . . In mod­ ern democracy the State was not a power imposed on society by force. It was the product of the society which had unfortunately in some [North Atlantic] cases detached itself from the society from which it had sprung and had come to dominate and oppress that society; the police State in fact came into being and was supported by the class which controlled its economy. . . . The advantage of the Soviet conception of the State was that

it was

democratic

in

a new sense of

the word. It was supported by the immense m;yority of the people and was bound up with the defense of fundamental human rights. That was true democracy: the right to participate in gov­ ernment.?&

He then quoted figures that showed the large numbers of people who were par­ ticipants in Soviet-style democracy. "Soviet popular democracy," he explained "was based on unity. The same characteristic was found in certain States in Eastern Europe. That unity had also been demonstrated by the Soviet people during the war . . . the heroism and the spirit of sacrifice of the Russian people had shown how much they valued the system. It was therefore a real democracy" (p. 8) "He observed that the struggle against Fascism had not been delayed until a definition of it was found, and for comparable reasons the representative of the USSR opposed the deletion of all mention of democracy in article 2 [29) " (p. 9 ) . Cassin, whose delegation's text still contained the phrase "democratic state" ob­ served that the idea of the state "was much less important than that of democracy itself. The State was, in fact, a perishable product of society. In this view the cri­ terion of democracy in any nation was the extent to which human rights were really respected. A State which did not respect them was not democratic, even if it claimed to be so; hence the supreme importance of the word, which must be retained" (p. 10). Lopez, the Philippine delegate, also was "not afraid of the word democracy. Such fears would not exist had not the Soviet Union been given the opportunity to appear as the only champion of democracy. The conceptions embodied in the Draft Declaration were all abstract ones, and if one of them were to be discarded for that reason, then they would all have to be discarded. He, for his part, would vote in favour of the text proposed by the Australian representative," which contained the phrase "democratic .

.

.

•

.

society" instead (p. 11).

Karim Azkoul, the Lebanese delegate, was led to observe that if Pavlov "insisted on driving a wedge between capitalist and communist, m�ority and minority democ­ racies, then there would be no other solution but to define in the Declaration what kind of democracy was meant" (p. 11). He liked the French definition of a democratic government as one thaUakes human rights seriously. The Australian suggestion to use the phrase "democratic society" instead of "democratic State" was accepted by a draft­ ing subcommittee (of Lebanon, India, and the U.K.), which made everyone's exercise of his or her human rights "subject to such limitations as are necessary to secure due recognition and respect for the rights of others and the requirements of general wel-

World War II as Catalyst

65

fare in a democratic society." A Soviet proposal to add at the end "and democratic State" was rejected by 9 votes to 4 with 3 abstentions. After that the text was adopted by 12 votes to none, with 4 abstentions (SR.52jp. 3). In the Third Committee, the Soviet Union made one last attempt to add at the end of 29(2) the phrase "and also [for the purpose of] the corresponding require­ ments of the democratic state" (AjC.3/304jRev.2). Pavlov defended his addition on the grounds that: '�ll rights laid down in the declaration would be implemented in democratic societies by democratic States. The law was nothing without the machin­ ery to implement it and, at the present time, that machinery was the State. It was impossible, therefore, to ignore the requirements of the democratic State" (p. 645). This proposal was not well received. New Zealand delegate A. M. Newlands objected because she felt that "an escape clause . . . should be as narrow as possible if the state­ ment of rights and freedoms was to have any real meaning" (p. 645). That meaning being that human rights are held over against the state. If the rights spelled out in the Declaration could be suspended by the requirements of the state, then the whole project had lost its meaning, as most delegates understood it. Aquino, the delegate from the Philippines, also saw this very clearly: "The U.S.S.R. amendment, by raising the State above . . . society, would," he said, "destroy the intent and meaning of the article. Since the definition of the 'corresponding re­ quirements' ofa State would lie with that State. it could u nder tbe terms of the..l].S.S.R. amendment annul all individual ri hts and freedoms contai edamtion" (p. 648). Alexan er Contoumas, the Greek delegate, did not want the door opened to "abuses by the State." He pointed to the subtle difference that exists between the phrase "requirements of a democratic society," where there was a definite danger of the word "state" slipping in for the word "society" and the text at hand, which spoke of "the requirements of morality, public order, and general welfare" in such a society (p. 649). Here the emphasis is on morality, public order and the general welfare, all of which are intimately linked to the observance of human rights. The Soviet amend­ ment was decisively rejected by a vote of 23 to 8, with 9 abstentions (p. 663). ·

The Rights of Fascists in Articles 19 and 20

According to Ernest Huber, Hitler's constitutional law scholar, there were in the Third Reich "of course no inborn inalienable political rights which are inherent in the individual himself and which would tend to limit and hamper the leadership of the Reich."77 True to theory, after Hitler gained power he swept away and destroyed every bit of the machinery just described. Immediately after he was appointed chancellor he got permission from President Hindenburg to dissolve the Reichstag and call for new elections. With the representatives of the people having been cut out of the pro­ cess of government, the Nazis now ruled by Hitler's emergency decrees. The first one was the Decree for the Protection of the German People, also called the Reichstag's Fire Decree because it was issued the morning after the Reichstag went up in flames. From that point on political organizations had to get advance approval for all meet­ ings, marches, and pamphlets. This decree gave the government the power "to shut down the presses of the left­ wing parties . . . to break up campaign rallies, to arrest oppone nts at will, [and] it also

annulled almost all the basic rights guaranteed by the constitution." ?& In one stroke the democratic rights offreedom of opinion and expression (Article 19) and ofassem­ bly and association (Article 20) were abolished. Other decrees followed.7D It was these decrees, and not the people's representatives with their periodic secret and universal election ballots, which in Nazi Germany expressed "the will of the people." Both these rights were incorporated into the Dedaration without any significant disagreement, partly as a reaction to Hitler's demolition of fundamental constitutional rights. Articles 19 and 20 of the Declaration presented the drafters with the special prob­ lem of how tolerant a tolerant society should be of those -like Nazi and fascist groups -who tJl,emselves are intolerant in word or deed. The answer to this question depends on the level on which the question is raised and even then we must distinguish between word and deed. It would seem that when a nation is in the process of organizing itself around a constitution or principles based on respect for human rights, at that point it does not make sense to give Nazis and other intolerant groups an equal, or even any, voice in the drafting process. It was no violation of any of the rights of the Nazis, or of any of the other Axis powers, that they were not invited to San Francisco to help orga­ nize the United Nations and that they were not asked to help draft the Universal Dec­ laration of Human Rights. Both of these events took place precisely because the world community wanted to protect itself against Nazism, racism, and fascism. The participa­ tion of the intolerant in public life, if there is to be such, must not be along lines they, the intolerant ones, draw up. That would perpetuate the horrors. This is not simply a question of who has the power. It is also a question of justice, for justice does not re­ quire that people who refuse to take a moral point of view be given a veto over the arrangements ofjustice that are being made. As John Rawls observes, '1ustice does not require that men must stand idly by while others destroy the basis of their existenc� .'' so But this does not answer the question of how tolerant a tolerant society-once it has been established -should be of those who are themselves intolerant in word or deed. It is on this level that the delegates differed, with various Soviet amendments arguing for no tolerance at all and the majority voting for a significant measure of tol­ erance. These USSR amendments forced the drafters to face the question of whether Nazis should have the right to free speech and assembly in a country that lives by the principles of the Universal Declaration. The problem of the free flow of information was a top agenda item in the early years of the United Nations because it was felt that the horrors of World War II were in part caused by the fact that Hitler had isolated his people from the outside world. Accordingly, in the hope of receiving some advice on "what rights, obligations and practices should be included in the concept of freedom of information," the Human Rights Commission created the Sub-Commission on the Freedom of Information (Sub.l/2/p. 2). Unfortunately, the First Session (May-June 194'7) of this new entity was entirely devoted to the agenda for the upcoming World Conference on the Freedom of Information, and no advice was given. Even so, the First Session of the Drafting Committee that same June had among its options Humphrey's four articles on the subject, three in the proposal of the United Kingdom, two in that of the United States, and another three in a French pro­ posal.81 Only the British proposal for the covenant included a restriction of "publica­ tions aimed at suppression of human rights and fundamental freedoms.'' In a note the

World War II as Catalyst

67

British delegation defended this phrase "because it would be inconsistent for a Bill of Rights whose whole object is to establish human rights and fundamental freedoms to prevent any Government, if it wished to do so, from taking steps against publications whose whole object was to destroy the rights and freedoms which it is the purpose of the Bill to establish" (SR.3Bjp. 12). The Drafting Committee adopted two articles on the freedom of thought and ex­ pression, neither of which contained any mention of limitations or restrictions: "Every one is free to express and impart opinions, or to receive and seek information and the opinion of others from sources wherever situated" and "There shall be freedom of expression either by word, in writing, in the press, in books or by visual, auditory or other means. There shall be equal access to all channels of communication." 82 The phrases "from sources wherever situated" and "to all channels of communication" are the origin of the phrase "through any media and regardless of frontiers" in Article 19 of the Declaration. In December 1947 the Second Session of the Commission passed these two arti­ cles on to the Second Session of its Sub-Commission on the Freedom of Information, which met in january and February 1948. In addition to asking for advice on these two articles it also asked the Sub-Commission to "consider the possibility of denying this freedom to publications and other media of public expression which aim or tend to inflict injury, or incite prejudice or hatred, against persons or groups because of their race, language, religion or national origin" (Sub.l/36). Neither of these two articles nor the proposals submitted to it by the United Kingdom and United States experts conta,ined any restrictions on the freedom of speech.83 Archibald R. K. MacKenzie, the Sub-Commission's expert from the United King­ dom, propos e d to merge the two articles from the Commission into one. This led to the adoption of the following text: "Everyone shall have the right to freedom of thought and communication. This shall include freedom to hold opinions without interference; and to seek, receive and impart information and ideas by any means re­ gardless of frontiers." 84 A small group was asked to verify the article's suitability for the Declaration. It gave the Sub-Commission two alternatives on the question of limi­ tations. The first alternative contained the limiting phrase "and having regard to the rights of others," while the second contained the limiting phrase "being liable only for the abuses of this freedom in cases determined by the law of nations." 86 The only experts to object to both versions because they did not limit these rights enough were the Czechoslovakian and Soviet experts. The latter observed that "the world had just emerged from a terrible war, the objectives and scope of the press had changed and it was necessary to set limitations to the liberty of the press if it were used as a vehicle of war propaganda and exhortation to revenge" (p. 4). In spite of the French expert Andre Geraud's observation that "to delete all mention of limitations would be an un­ realistic approach to the problem" the Sub-Commission took that very approach. It decided by a majority of eight votes to delete the limiting clauses from both alterna­ tive texts (p. 5). The Soviet Union continued its campaign for limitations in the Human Rights Commission itself and in the Third Committee. Several times it proposed an amend­ ment to Article 19 to the effect that "freedom of speech and the press should not be used for purposes of propagating fascism, aggression and for provoking hatred as

68

Chapter z

between nations" (E/800). Pavlov, the USSR representative, explained that the idea behind the amendment was "not to be content to affirm a right but to guarantee it" (p. 414). The freedom this article would give to the Nazis would undercut and threaten, he said, the very right affirmed in the article; without the limiting clause, the article would be self-destructive. For the same reasons his delegation proposed to exempt all organizations "of a fascist or anti-democratic nature" from the right to freedom of association proclaimed in Article 20 (E/800). In the fall of 1948 the Third Committee rejected both of these exclusionary amendments. Dehousse, the Belgian representative, voted against these Soviet amendments be­ cause even though he "hated fascism as intensely as did the USSR representative, [the word] could not be used in a legal document in which it was not clearly defined" (p. 414). To which the Polish representative, Fryderika M. Kalinowska, responded that "during the war waged against fascism the Allies knew very well what that word meant" (p. 420). Radevanovic, the Yugoslavian delegate, supported her, arguing that "the Declaration should not pass over in silence the danger to international peace [that came from] propagating fascism" (p. 420). The amendment denying Nazis the right to free speech was rejected with a vote of 23 to 10, with 13 abstentions (p. 425). The general sentiment, expressed by the delegations from Haiti, the U.K., India, Greece, Saudi Arabia, Thrkey, Pakistan, and Costa Rica, was that there was no longer any agreement on what the word "fascism" meant, to which some added the point that for that reason it should be avoided in a legal document (p. 425). Both of these points can be questioned. The first one because during the war there had been no such con­ fusion and the second one because most delegations did not see the Declaration - as a legally bindin doc ment in an case, but as one with moral force only. he Soviet delegation made it very difficult for t e ort t an ic-eountries and their allies to support these amendments. After the vote, Pavlov said that he was sur­ prised that countries like Belgium and France had rejected the mention of "fascism" in Article 19 under "the pretext that there existed no legal definition of that term. Countries which had suffered occupation by the Axis forces," he went on to say, "had no need for a legalistic definition to tell them the nature and horrors of fascism." He defined "fascism" as "the bloody dictatorship of the most reactionary section of capi­ talism and monopolies," implying that there was only a difference of degree and not one of kind between Nazi Germany and the Western democracies.88 Naturally, the Western powers were reluctant to vote for a Soviet amendment that (on the interpre­ tation of its sponsors) would deny themselves the right to free speech. Their reaction was the same to the Soviet proposal that Nazis be denied free­ dom of assembly. Pavlov wanted to guard against the abuse of that right by "fascist elements, which," he said, "existed in almost every European country except those with a people's democracy . . . [like the Soviet Union and its East European satellites] which guarded against them by law" (p. 430). His deeper meaning was that there was an inherent link between a country's being democratic in the "real" sense of being a "people's democracy" and its being antifascist. Conversely, any capitalist country that was not antifascist was bound to be antidemocratic as well. Since the Communists de­ fined the debate options along these strict lines, the Western democracies and their allies were caught between a rock and a hard place. Having fought the Nazis side by side with the Russians, they were sympathetic to the amendments. On the other hand,

World War II as Catalyst

69

the broadening of the meaning of "fascism" as a branch of capitalism and of "totali­ tarianism" as being applicable to their own forms of government made them hold back and vote down the Soviet amendment.87 As Lester Pearson, the Canadian dele­ gate to the 1948 December session of the General Assembly put it, "The term 'fascism' which had once had a definite meaning was now being blurred by the abuse of apply­ ing it to any person or idea which was not communist" (p. 899). As a result of these discussions on the possible abuse of the right to assembly and association, the Third Committee adopted the insertion of the word "peaceful" before the words "assembly and association" (p. 445). That word went some of the way toward meeting Communist worries. It might well be that in practice and through the courts the Nazis' right to these two freedoms would have to be drastically curtailed. But that did not need to be a reason to single them out in advance in the Declaration as not having these rights in principle. Eduardo Anze Matienzo, the Bolivian representative, may have had considerations of this sort in mind when he said that "his country had felt the effects of Nazism and fascism, but it believed that the surest way to cure those evils [mentioned by Pavlov] was to ensure basic freedoms" to all, Nazis included. "Free human beings," he said, "always tended toward good and repudiated evil" (p. 435) . Perhaps by being treated with initial tolerance even intolerant groups could be drawn into the circle of tolerance. But that line of thought was overshadowed by the rhetoric of the Cold War. Having witnessed the destruction of all democratic rights under National Social­ ism and having seen them replaced with the abhorrent Fuhrer principle, the drafters of the Declaration had no doubts about these political rights as being genuine human rights. The experience of the war had reinforced their belief that the cluster of rights spelled out in Articles 18, 19, 20, and 21 are universally the first ones dictators will seek to deny and destroy. These articles simply spell out the political implications of Articles 1 and 2.88 If we are all born with equal dignity and rights and if no one is by nature, birth, or divine appointment to rule over another, that can only lead to the equal par­ ticipation in government of Article 21's paragraph 1 -which must include the rights to freedom of thought, expression, and association (Articles 18, 19, and 20) - to offices that are open to all of 21's paragraph 2 and to "periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equiva­ lent free voting procedures" of 21's paragraph 3. Anything less would be an erosion of the fundamental equality laid down in the first two articles of the Declaration. Article 21 is more basic than the legal ri hts described in the previous section be­ · cause it ives eople the human right to bel codif the moral princtp es o t e ot er lega human ri hts into t omestic s stems. Most of what a government oes ts to write laws, which is why one early version of Article 21 spoke of everyone's "right to take an effective part directly or through his representative in the formation of law." 89 ·

Article 7 and Protection Against Hate Speech

I already mentioned the fact that the topic of the free flow of information was much discussed in the UN's first two years. At the same time the Soviet Union was engaged in a broad based campaign to get the United Nations to take the threat of the re­ currence of Nazism and fascism more seriously. But the Communists had made no

70

Chapter 2

headway with their campaign in the Sub-Commission on the Freedom of Information which was to advise the Human Rights Commission on these matters. They did, how­ ever, have far more success in the Sub-Commission on the Prevention of Discrimina­ tion and the Protection of Minorities, which success eventually led to the stipulation in Article 7 that "all are entitled to equal protection . . . against any incitement to such discrimination" as may violate any of the articles in the Declaration. Relying on precedents in the Communist constitutions of his day, Alexandre Borisov, the USSR expert, proposed to the Sub-Commission on the Prevention of Dis­ crimination and the Protection of Minorities that Article 7 of the Declaration include a paragraph stating that: ·�ny advocacy of national, racial and religious hostility or of national exclusiveness or hatred and contempt, as well as any action establishing a privilege or a discrimination based on- distinctions of race, nationality or religion constitute a crime and shall be punishable under the law of the state." 9° Borisov said that his proposal was a test of "whether or not the United Nations Organization was to be effective in its protection of minorities." 91 A heated discussion took place dur­ ing which the U.S. and Belgian experts more than once sought to prevent the Borisov ' proposal from being voted upon, but each time the chair ruled against them (SR.7/8). The upshot was the adoption of the following statement, which was sponsored by William McNamara, the Australian expert, and C. H. Wu, the expert from China: "The Sub-Commission recommends to the Human Rights Commission the inclusion in the proposed Convention or in the Declaration of Rights, at appropriate places, of clauses condemning incitement to violence against any religious groups, race, nation or minority." While all the different parts of the Borisov text were rejected, this Wu­ McNamara recommendation was adopted with 10 votes and only 1 abstention (pp. 12-13). This positive outcome encouraged Bogomolov, the USSR delegate to the Work­ ing Group of the Second Session of the Human Rights Commission. He brought the rejected Borisov proposal to the attention of his colleagues both when Article 3 (now 2) and Article 6 (now 7) were being considered. When then Article 6 was up for dis­ cussion he made a statement in which he met the alleged conflict between free speech and hate speech head on. He said that the affirmation of the equality of individuals before the law should be accompanied by the establishment of equal human rights in p olitic al, social, cultural, and economic life. In terms of practical reality, this meant that one could not allow advocacy of hatred or ract!U, national, or

religious contempt . . , , Without such

a

prohibition, any Declaration would be useless. It could

not be said that to forbid the advocacy of racial, national or religious hatred constituted a viola­

tion of the fre e dom of the press or of free sp eech . Between Hitlerian racial propaganda and any other propaganda designed to s ti r up racial, national or religious hatred and incitement to war, there was but a short ste p. Freedom of the press and free speech could not serve as a pretext for propagating views which poisoned public op i nio n . Propaganda in favor of racial or n atio nal exclusiveness or superiority merely served as an ideological mask for imper ialistic aggression.

That was how German imperialists had attempted to justify by racial considerations their

for destruction and pill age

For

in Europe and Asia.

(AC. l/SR.7jp. 9)

plan

these reasons the Soviet representative moved the Borisov proposal as a third paragraph to Article 6 (now 7). The reader will recall that in addition to condemnh�:g "advocacy of national,

World War II as Catalyst

71

racial and religious hostility or of national exclusiveness or hatred and contempt" the Borisov proposal also asked that the Declaration say that such advocacy "constitute[s] a crime and shall be punishable under the law of the state." 92 A. L. Easterman, who represented the World Jewish Congress at the Working Group meetings, "supported the proposal submitted by the Soviet representative" (AC.1/SR.7jp. 9). Other dele­ gates looked upon this addition as a breach of the rule that the Declaration should not be concerned with measures of implementation. When Eleanor Roosevelt "said it did not seem necessary to consider the Soviet representative's proposal," Bogomo­ lov objected and "formally requested a vote" (p. 11). The Working Group rejected the prohibition to incitement by 2 votes to 2, with 2 abstentions. Again a close vote. Pavlov, the USSR delegate to the Second Session of the Commission, took over where Bogomolov had left off and brought up the same proposal again. Professor De­ housse, the representative from Belgium, said he was opposed to the implementation aspect of the Soviet proposal. But he did like the prohibition of incitement to dis­ crimination and suggested that at the end of what is now Article 7 the words "and against any incitement to such discrimination" be added (SR.35jp. 3). While it turned down the BorisovjBogomolovjPavlov proposal itself, the Commission did adopt this Belgian spin-off by 10 votes to none, with 4 abstentions. The clause was debated in both the Third Session of the Commission and in the Third Committee, but each time it survived. In the Third Session the U.K. and Indian delegations proposed a joint amend­ ment that deleted this clause from the article (E/CN.4jp. 99). Wilson, the British delegate, said: In the United Kingdom where human rights had certainly been respected as much as in any country, there had never been any need for legislation to compel the authorities to take action against incitement to discrimination. The force of public opinion had always proved sufficient to deal with any attempts at such incitement. If the sentence included the phrase in question, the United Kingdom, feeling morally bound to carry out the provisions of the Declaration, would be obliged to pass laws which experience had shown were neither necessary nor desir­ able. It was inappropriate for the Commission to place such an obligation on any country; each country should be allowed to decide for itself how, within the framework of its own social de­ velopment, the principles laid down in the Declaration could best be put into effect.OS

Santa Cruz, the delegate from Chile, responded that "Unfortunately however dis­ crimination and incitement to discrimination did exist in some countries and for that reason the phrase was needed to ensure legal protection against such evil" (p. 14). Cassin also "strongly favored the inclusion of the phrase in question." "Incitement to discrimination," he pointed out, "included organized conspiracies and was extremely dangerous. Even in a democracy citizens should not be allowed liberties which ran counter to the liberties of others. A definite statement of the principle of legal pro­ tection against incitement to discrimination should therefore be made" (p. 15). The Uruguayan and U.S. delegations were opposed to the clause. Vilfan of Yugoslavia "par­ ticularly cherished the tradition of free speech; but as one who had been unfortunate enough to live under the fascist regime in Italy where discrimination was practiced, he felt that incitement to discrimination should be explicitly forbidden" (p. 16). The Third Session rejected by 6 votes to 5 with 5 abstentions a Lebanese amend-

72

Ch11pter 2

ment proposing the addition of the word "systematic" before the word "incitement." It also rejected a Chinese proposal to delete the crucial phrase "or against any incite­ ment to such discrimination." The vote was a close 8 to 7 with 1 abstention (p. 17). Given the closeness of this vote and the general interest in the free flow of informa­ tion, one would have expected a renewed challenge to the incitement clause in the much bigger Third Committee to which the results were sent. No such challenge materialized because a South African amendment to delete the entire last sentence of Article 7 (including the incitement clause) caught every­ one's attention.94 For reasons I discussed in Chapter 1, the South African position on what rights to include in the Declaration lacked integrity and its proposal to delete the second half of Article 7 was soundly defeated. The phrase "and against any discrimi­ nation in violation of this Declaration" was adopted by 46 to 0 votes, with 1 abstention. The phrase "and against any incitement to such discrimination" was adopted by 41 votes to 3, with 2 abstentions. Article 7 as a whole was adopted by an overwhelming 45 votes to 0, with South Africa the sole abstention. The open discussion of the hatred and contempt on which the system of apartheid was based convinced many of the drafters that people have a right to be protected not just against discrimination, but also against incitement to it. We should note one crucial difference between the original Borisov proposal and what the Commission and Committee adopted. While Borisov had proposed the outright prohibition of advocacy or incitement to hostility, hatred, and contempt, to be protected against such incitement. In other the Commission adopted the words, the Commission did not revise what it a wr tten m Articles 18, 19, and 20 when it gave to "everyone"- including Nazis and fascists- the rights to freedom of thought, conscience, and religion and the right to express these thoughts "through any media and regardless of frontiers" and to do so with like-minded people. Article 7 does not void these other rights. What it does do is circumscribe them with another right that is just as important and which we must use to help us interpret the more general limitations set forth in Article 29. ·

2.5 Special International Rights and the R�le of the UN

Most of the delegations had little difficulty voting for many of the rights in the Dec­ laration, for more often than not their own national constitutions also contained the particular right to be voted upon. All that was required was a shift from the national to the inter�ational level. And when the delegates considered how these rights were to be implemented, all they had to do was to think of a stepped-up vigilance on the part of their own states. Their governments would now do under an international um­ brella what they were already doing under their own. However, in the case of some of the rights in the Declaration this shift in perspec­ tive was not quite as easy, for most of the domestic constitutions of member states did not contain any of what I have called "special international (human) rights." National constitutions are not addressed to worldwide audiences and hence do not usually speak of rights which require more than one nation to implement, such as the right to move between countries (Article 13), the right to asylum (Article 14) , and the right

World War II as Catalyst

73

to a nationality (Ar ticle 15). For people to enjoy thes e rights various countries have to cooperate and hence give up a piece of their sovereignty. The same is true of Ar ticles 22, 28, 29 (3), and 30, which also require international cooperation. These rights are, there fo re, real test cases for any list of human rights, fo,{ in their case the ques tio n , of the problem of sovereignty can no longer he hidden behind the veil of positive national larx:-As Cassin said in the Third Committee of the discussions about asyluin , "in case of the articles studied so far, the national society in which the individual was living was required to ensure the rights in question. The right to asylum, however, was a conception of an essentially international character: it was therefore necessary tQ.. specify who was to ensure the eqjOfmeRt ef tkRt r igh t" (p. 328). The same observation applies to all the righ ts or articles discussed in this section . Article 1 3 and the Problem of Movement Between States

Article 13 has two p aragraphs , a domestic one and an international one: "(1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his cou ntry." In his first draft Humphrey dealt with these issues in two separate ar ticles . Humphrey's ninth article (H9) is the forerunner of what is now the first para­ graph: "Subject to any gene ral law adopted in the interest of national welfare or security, there shall be liber ty of movement and free choice of residence within the borders of each State" (AC.l/3). Roughly half of the constitutions in Humphrey's sur­ vey gave thei r people liberty of movement and choice of domicile. Any Cuban was free to "move from one place to another, and change residence without the necessity of a letter of security," Egyptians could "not be prohibited from staying in any par ticular locality, or [be] compelled to reside in a specified place."95 Humphrey's text closely followed the text submitted by Chile on behalf of the Inter-American juridical Com­ mittee, whi ch was the only one of the formal pro posals that contained this right.96 While Humphrey had a separate article H10, stating that "the right of emigra­ tion and expatriation shall not be denied," Cassin collapsed H9 and H10 into a single article. That is what the First Session of t he Drafting Committee adopted, together with a note stating that the right to leave a coun try was correlated with the right to enter another one �nd that the-��mmtssto n hoped that "these corollaries [woufdibe treated as a matter of international �(;ncern am:ftliaTmembers of the United Nations coop,erate hi-pr-;;vidiog such"faclrifies..-(EfCN.4757/j>-:-9)":Tfie-5e8sroiiuagreed with Wil­ son of the U.K. that the main pomt of tnt: arti cle "was the prevention of discrimina­ tion, on grounds of race, colour, where people migh t live and how they might move from place to place" (SR. l ljp . 14). It therefore sent the article for advice to the Sub­ Commission on the Prevention of Discrimination and the Protection of Minorities . This Sub-Commission immediately zeroed in on the problem of states th at might abuse the exceptions based on "the interest of national welfare and security." Eliza­ beth Monroe, the United Kingdom's expert, thought that "it was essential for this reservation to be drafted in such a way that Governments would not be able to make use of it to j us tify certain forms of persecution conducted in the name of the general welfare of the people, as had been done by the Nazis." 97 She supported a reference to

74

Chapter z

the UN Charter in the article itself and thought that "care should therefore be taken not to provide a loophole for States to evade this rule on the pretext of ill-defined general or mutual interests" (p. 20). Taking over this idea of a UN reference, Cassin proposed to the Working Group of the Second Session of the Commission this text: "Subject to any general law not contrary to the purposes and principles of the United Nations Charter and adopted for specific reasons of security or in the general interest there shall be liberty of move­ ment and free choice of residence within the borders of each state. Individuals shall have the right to leave their own country and, if they so desire, to change their nation­ ality to that of any country willing to accept them" (57/p. 8). The Working Group adopted this article, with the opening UN reference in it, by 3 votes to 1, with 1 ab­ stention, and the full Second Session of the Commission followed suit.98 As some delegates saw it, the problem with the above cited two-sentence text was that the opening Charter reference only governed the liberty of the first (within a country) sentence and not the movement of the second (between countries) sen­ tence.99 Upon the recommendation of the United States and United Kingdom delega­ tions and with a vote of 5 for, 1 against, and 2 abstaining, the Second Drafting Session deleted the opening UN clause from the first sentence of the article, the rationale being that the limitations stated in what was then Article 2 (later 29) were sufficient (SR.36jp. 7). The new wording for the second sentence ("the right to leave any coun­ try, including his own" ) was adopted upon the recommendation of the United King­ dom representative by 5 votes to none, with 1 abstention (p. 11). It was also decided at this time to delete the provision about nationality from the article and to deal with that in what became Article 15. Dropping the UN reference from the first sentence made both rights equally absolute, but it did not help those delegates who worried about the status of the international right to move between countries. Pavlov, the USSR representative, proposed that this right to leave one's own country be qualified by the phrase "in accordance with the established laws of that country" (p. 8). He wanted to combat the impression left by the text that "individuals could leave their country at will, forgetting duty to fatherland. The war had produced numerous examples of the results of such negligence. It would be morally wrong and contrary to democratic ideals to encourage such disregard of duty" (p. 8). He no doubt had in mind the thousands of Soviet partisans who fled the Soviet Union at the end of the war to live and stay in the West. His government had been seeking their return, in some cases successfully. To meet this challenge the French delegation had submitted a text that made the opening UN clause cover the second right (of movement between countries) as well. Both of these proposals were rejected.t00 The maj or ity of delegates felt that Article 29, which was then Article 2, dealt adequately with the question of limits. In the Third Session both the French and the USSR delegations offered the same amendments and they were again rebuffed. Metha, the delegate from India, for in­ stance, did.not want to write any limits into the article itself because, as she saw it, the article "aimed at establishin the rind le of freedom of movement, which like free­ dom of speech, freedom of meeting. etc.. was a fundamental human r g t .. . 5jp. 6). NoiTesting its case, in the Third Committee the USSR delegation proposed state limits to both sentences of the article (E/800),

World War II as Catalyst

75

Santa Cruz, the Chilean delegate, objected. He admitted that the state did of course have an interest in how the principle of freedom of movement was to be ap­ plied, but he objected to the inclusion of this idea in a declaration of human rights because that "would imply the renunciation of the inherent rights of mankind. A document drawn up in that [Soviet] sense would be a declaration of the absolute rights of the State and not a declaration of human rights" (p. 316) . He felt that "the freedom of movement was the &a�t=ed rigl:l:t gf c\lery human being" (p. a_I6). "In order to stress the danger of the amendment suggested by the USSR delegation, he reminded the Committee of the situation in Russia" when Peter the Great proclaimed the freedom of movement within his territory, but at the same time charged two hundred silver roubles for a special passport, which the majority of his subjects could not afford. Santa Cruz "quoted further examples from the history of Latin America during the Spanish colonization period, and declared categorically that no physical or moral au­ thority could justify the treatment of individuals as factors in the national economy." He added that all the exceptions were covered by Article 29 .101 The Third Committee rejected both of the qualifying state references. Accepted was an important Lebanese amendment which added the right "to return to his own country" (A/C.3/260). The delegations of the Philippines, the United States, and Greece spoke up on its behalf. But no one can leave one country without sooner or later entering another one. The right to leave is hollow without the right to enter. The right to ask for and be given asylum is therefore a necessary corollary of the right to leave one's own country. Thi� problem is different from the rights to emigrate and to immigrate, rights that at thh point in the discussion were replaced by an exclusive focus on the problem of refu· gees seeking asylum from persecution. As the references to the Nazi experience hav� already shown, the delegates were deeply concerned about the protection of thos� who are persecuted by their own state, as the Jews and other minorities had been in Nazi Germany. They were also very concerned about the waves of refugees produced by the 1948 Arab-Israeli war. Article 1 4 : Asylum. Palestinian Refugees. and War Criminals

Humphrey had included in his first draft two related articles, one on the treatment oJ aliens and one on political asylum. H33 stated that: "No alien who had been legall) admitted to the territory of a State may be expelled therefrom except in pursuance oJ a judicial decision or recommendation as a punishment for offences laid down by Ia\\ as warranting expulsion" (AC.l/3). Cassin sponsored the substance of this article, bu1 right from the start it ran into opposition. Wilson of the United Kingdom expressed the opinion that "if the international organization were to guarantee too many privi· leges to aliens in a given country, they might find great difficulty entering that coun try," with which point Cassin agreed (SR.9jp. 9). Wilson said that the provisions of thi1 article "were stronger than those in any Constitution he knew of" and that he wante< to see the article deleted. The United States delegation also wanted to delete it, as di< Ralph Harry from Australia. In his second rewrite Cassin dropped it from the list. Humphrey followed H33 with this H34: "Eve.!Y State shall have the right to _gran asylum to political refugees" (AC.l/3). I�as sponsored by Malik from Lebanon an<

76

Chapter Z

Chang from China (SR.4jp. 9). Koretsky, the USSR delegate, wanted to know "why only political refugees had been mentioned and pointed out that the right of asy­ lum should be extended to refugees on religious and scientific, as well as political, grounds" (SR.9/p. 8). Harry pointed out that "the Article shmild be formulated from the point of view of human rights rather than the rights of the State" (p. 8). Both of these issues were taken care of with the adoption of the following text: "Everyone has the right to escape persecution on grounds of political and other beliefs or on grounds of racial prejudice by taking refuge on the territory of any State willing to grant him asylum" (SR.l3jp. 12). But two problems remained unresolved. Koretsky had also observed that the article neglected "the contents of the Moscow Declaration on war criminals, and asked whether there would be some sort of reservation to that effect" (p. 11). And Harry had also suggested that the wording be changed from the right to seek asylum to being granted it. In the Second Session's Working Group discussion, Paul Weiss, the representa­ tive of the International Refugee Organization, immediately spoke up. He thought "the rights granted under Article 14 were very imperfect" and hoped that the Com­ mittee "would reconsider the wording with a view to sponsoring more positive action" (SR.5/p. 4). A. L. Easterman, the representative of the Worldjewish Congress, joined in by contending "that Article 14 afforded a right of escape with no corollary of a right of access to the country of reception. Many refugees from Germany," he said, "had been denied this right which had resulted in the death of thousands. Moreover, Article 14 failed to implement Article 7 [3], since persons who were denied the right of asylum frequently died and thus were denied the right to life" (p. 4). "Mlle. de Romer, the representative of the International Union of Women's Catholic Organiza­ tions, strongly supported the views expressed by the two previous speakers" (p. 5). Eleanor Roosevelt did not want "to raise false hopes in the Declaration" and "doubted whether it was within the province of the United Nations to tell Member States that they must grant asylum. Sbe cited U.S. lmmlgratl� la s a con ete in­ stances ofthese difficulties" (p. 5). Cassin first proposed a solutton ase on te right to seek asylum and then one based on the right to find it. Easterman appreciated the effort, but found these verbs still "inadequate since these imposed an obligation on the individual. He was concerned with the fate of potential victims of persecution on whose behalf he pleaded the elemental human right to be freed from danger" (p. 7). General Romulo of the Philippines noted that "it was not so much a question of raising false hopes as of establishing a principle to be followed by all" (p. 6). The Working Group adopted most of the text that Romulo had proposed: "Everyone shall have the right to seek and be granted asylum from persecution. This right shall not be accorded to criminals nor to those whose acts are contrary to the principles and aims of the United Nations" (p. B; italics added). Over objections of the United Kingdom delegation, which thought the "be granted" language too strong, the Second Session upheld this Philippine-sponsored text (SR.37jp. 9). Because some of the governments had expressed doubts about the right of asy­ lum in the Declaration, the Second Drafting Session set up a subcommittee that in­ cluded the representatives of China, France, and the United Kingdom. This group provided the following three sentences for the article: (1) "Everyone shall have the right' to seek and may be granted asylum from persecution"; (2) "The United Nations is

� �

�

World War II as Catalyst

77

bound to secure this asylum in agreement with Member States"; and (3) "Persecution genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations do not constitute persecution" (AC.l/39). The third and last sentence is the forerunner of Article 14's second paragraph. It was threatened with being deleted in the Third Session, but its wording was not changed (except sty­ listically), and it ended up in the final product. The Second Drafting Session adopted the third sentence by 5 votes to 2 (SR.37jp. 2). The first and second sentences were the object of more discussion. Cassin defended the UN reference in sentence 2. He said that the article's word­ ing was inspired by "the fact that it was impossible to recognize a right, in this case the right to asylum, if no one was bound to respect it. The United Nations should therefore be involved and conclude agreements to provide material assistance when countries became overburdened financially" (p. 8). At first Azkoul, the Lebanese representative, was opposed to any mention of the UN, but he changed his mind and came to support the UN role in sentence 2 because "otherwise the first sentence would proclaim the right for all persecuted persons to seek asylum without really enabling them to find such an asylum" (p. 11). The U.S., French, and Chilean delegations also spoke in favor of the UN reference. Even so, the sentence with the UN role was rejected by the close vote of 3 for and 3 against. This means that only sentences 1 and 3 arrived at the Third Session drafting stage. There the phrase "may be granted asylum" in sentence 1 was changed back to what it used to be: "to be granted asylum." This return was the result of the intervention of the same NGOs that had previously intervened. Sender of the American Federation of Labor felt that the "permissive character of the phrase 'may be granted asylum' de­ prived the article of any real value . . . . The right to asylum from persecution was," she at:gued, "a natural corollary to the right to hold or change one's beliefs, which was mentioned more than once in the draft Declaration" (SR.56jp. 7). Bienenfeld, the representative from the Worldjewish Congress, said he saw the rigftt to asylum as "im­ plicit in the concept of the right to life. In demanding the right to asylum, refugees were not asking permanent safety from persecution. The Governments of the U.K., USA, France, and the USSR," he said, "had been generous in providing homes for many Jewish refugees before and during the last war. For that reason it was difficult . to believe that their representatives in the Commission would oppose the inclusion of the right to [be granted) asylum" (p. 7). This campaign paid off when a drafting sub­ committee restored the right to be granted asylum. The first sentence with the restoration in it ("Everyone has the right to seek and be granted in other countries asylum from persecution as humanity required") was adopted by 12 votes to 1, with 4 abstentions. Because it was so detailed, sentence 3, which now had become the second sentence, was a good candidate for deletion by the Third Se�sion. Vigorous Communist lobbying against giving this right to war criminals kept the article in by the narrow vote of 8 for and 8 against.102 Two amendments in the Third Committee caused the strong language of having the right to be granted asylum to be weakened again. The delegation from Saudi Arabia proposed that the words "and be granted" be deleted (AjC. 3j241). And the British delegation proposed that the relevant paragraph read that "Everyone has the right to seek, and to enjoy in other countries, asylum from persecution" (A/C.3/253 ) .

78

Chapter z

Under the U.K. proposal, the phrase "and be granted" was replaced with the phrase "and to enjoy," once the right had been granted. The British proposal left open the question as to whether someone who flees persecution has a human right to asy­ lum and protection given by other countries. Both of these amendments passed and the lesson learned from the Holocaust was lost in the disagreements about what to do about the half million refugees created by the 1948 Arab-Israeli war.10 5 That war caused four separate waves of refugees, the last of which, in October and November 1948, overlapped with the discussions and votes in the Third Committee on the right to asylum.104 This explains why the teeth were taken out of the article as it had been proposed by the Third Session. Saudi Arabia's proposal to delete the phrase "and be granted," leaving only the human r ight to seek asylum, was brought on by the great burden felt by the Arab nations because of the thousands of refugees that p oured across their borders.105 The Arab representatives stressed their countries' appreciation for the financial support that was being organized through United Nations channels . But, in the words of Has­ san Bagadi, the representative from Egypt, "the committee should not overlook the other essential aspects of the p roblem : the questions of repatriation and rehabilita­ tion" (p. 286). Though already overpopulated, his country would continue to give asylum to the refugees, but "this could not represent a permanent solution; the only permanent solution was the return of the refugees to their own homes." 10 6 Repatria­ tion was the Arab League solution for the refugee problem. While Egypt expressed its frustration by wanting the r ight to asylum to be granted "in accordance with interna­ tional law" and made an amendment to that effect, Saudi Arabia sought an outright deletion of the righ t .l07 The Arab countries were not alone in their call for repatriation. Count Folke Bern.,idotte, tbe IInited Nations mediator who was killed in Jerusalem just afterhe finished his report, had made the right to repatriation a m�or point of his media­ tion effort.10s Several non-Arab states shared this view of the refugee problem. Among them were the delegations from Denmark, New Zealand, India, the United States, and the United Kingdom, which made the proposal to replace the phrase "and be granted" with the phras e "and to enjoy." 109 The general fe eling was that because of its dec ision to p ar tition Palestine, the United Nations itself was to some exte nt responsible for the refugee problem, but there was "a gentleman's agreement to avoid discussion of the political aspect." 1 10 Explaining her amendment to replace the phrase "and be granted asylum" by the phrase "and to enjoy asylum," I. Corbet, the United Kingdom deleg ate , "desired to make it clear that [the] intention was not to grant to a person fleeing p e rs e cutio n the righ t to enter any and every country but to ensure for him the enjoyment of the right of asylum o n c e that right had been gran ted him" (p. 340). The idea was th at "no for­ eigner c ould claim the right of entry into any state unless that r ight we re gran te d by treaty" (p � 330) . It was the view of her delegation that every s t ate had the right "to offer refuge a nd to resist all demands for extradition." Th at was what was meant by the ph rase " and to enjoy," which her delegation had prop osed . She had the sympathy of quite a few de legat ions, among them those from Venezuela, Mexico, the United S tates, India, the Phi lip pines, and Saudi Arabia . Watt, the delegate from Australia,

·

World War II as C11talyst

79

felt that "the formula proposed by the U.K . was excellent and had the complete approval of the Australian delegation." 111 Azkoul tried to get the discussion back on track. He felt the Commission had lost sight of its task, which was to draw up a bill of individual rights. "The statement of a right," he said, "should not . . . depend on the possibility of states to comply with that right. If it were part of the birthright of man, it should be established, even if, for accidental reasons, it did not seem possible to ensure immediate implementation" (p. 335). He wanted the Declaration to include all the rights "inherent in the human person" and the right to be granted asylum was one of them. He made it clear that his delegation would, if it passed, interpret the phrase "and to enjoy asylum" to say "that the individual should be guaranteed the right of being granted asylum and not merely the right of enjoying asylum in the country which had received him once that right had been acquired" (p. 335). He correctly saw that the British amendment gutted the real force of the article. Several delegations agreed with the Lebanese position. Justino Jimenez de Are­ chaga, a representative from Uruguay, thought that the delegation of the United Kingdom had confused "im,!!ligration and the right to asvlum," which to him seemed to be "two quite different thin (p. 334). The Mexican delegate, Pablo Campos Ortiz, seconded these thoughts. They were joined by the delegation from Pakistan. Its dele­ gate, Agha Shahi, argued that the right to be granted asylum was implicit in the right to freedom of thought and expression. ''After condemning the Nazi and fascist ideolo­ gies and the conception of the absolute state, Mr. Shahi emphasized the necessity of guaranteeing to everyone not only the right to seek asylum but also the [real] possi­ bility of enjoying that asylum" in a nontrivial way. His delegation did not think that by voting for the human right to be granted asylum "a country would seriously endanger its immigration policy" (p. 337). The Saudi amendment to delete "and be granted" was accepted with a vote of 18 to 14, with 8 abstentions.l12 The vote was not a roll-call one. The amendment seems to have been supported by most Arab states, though not Egypt and Pakistan, and others whose strong views on repatriation influenced their vote, either with or without cover of remarks about sovereignty. Reconstructing the vote, it would seem that the follow­ ing non-Arab countries voted to delete "and be granted": the United Kingdom, Aus­ tralia, New Zealand, India, the United States, Norway, China, Greece, Sweden, and Venezuela. If only three of these had voted differently, the Declaration would have had in it a genuine right to be granted asylum. As it happened, not enough delegations shared the sentiment Enrique Rodriguez Fabregat, the representative of Uruguay, ex­ pressed when he observed that "the same conviction as had moved [his delegation] to support the Jews in their persecution now inspired it to defend the cause of the Arab refugees" (p. 292). That meant to him a right not just to seek, but also to be granted asylum. Mter this, the British amendment to have the first sentence of Article 14 read as it now does -giving everyone the right "to seek and to enjoy in other countries asylum from persecution" - passed overwhelmingly with a vote of 30 to 1, with 12 ab­ stentions. Many of those who had rejected the Saudi amendment voted for this British one, seeking to save what they could. .

gs»

.

.

80

Chapter 2

Article I 5 and the Problem of Statelessness

While the constitutions of nations often state that citizenship (by birth or naturaliza­ tion) in that particular nation is to be determined by law, it is not expected of them that they assert the right to citizenship in general. That kind of right is best laid out in a transnational document like the Universal Declaration. Again, the experience of the war helps explain why the drafters included an article on this right. The Nazis began the extermination of millions of people by stripping them of their nationality. After the Kristallnacht of November 9, 1938, in which the German government encouraged the killing ofJews and the destruction of their property, the very Jews who had been the victims were blamed for the damage. The 1935 Nurem­ berg Laws had already robbed them of civil rights like being able to marry someone of Nordic blood. Now, being blamed for, among other things, the downturn of the German economy, they were also stripped of their citizenship. Conot reports that this "was more important in sealing their fate than the Nuremberg Laws or the develop­ ment.s that were to follow after the onset of the war. Having been stripped of their citizenship, they were now to become pariahs, open to exploitation and terrorization by every petty bureaucrat and tyrant, and totally subject to the caprice of a govern­ ment wallowing in corruption and hypocrisy." ns When Adolf Eichmann took over the Bureau of Jewish Affairs in October 1940, "it handled," he said, "withdrawal of nationality and citizenship and the confiscation of property." 114 Eichmann reports that "the legal experts drew up the necessary legis­ lation for making the victims stateless, which was important on two counts: it made it impos!!!_!>le for any country to inquire into their fate, and it enabled that state in which they were resident to confiscate their property." 1 15 Eichmann's interrogator gathered from what Eichmann was saying to him "that when these Jews crossed into Reich territory you automatically deprived them of their previous nationality and declared them stateless because then you could claim you only deported stateless people. Is that it?" 116 Eichmann evaded the question, but the answer is obvious. To be without a aked in the world nationality or not to be a citizen of any country at all is to sta of international a a1rs. It IS to e a one as a person, without protection against the indi nd to lose. As these an unequal battle aggre Nazi practices s ow, e nght to a nationality is not the luxury some people think it is. Except for the very long first Humphrey draft, which he molded after a Chilean proposal, the article was from the beginning very much the way it exists today.117 Cas­ sin sponsored the article and shortened that first draft to the current simple first sentence. When that sentence ("Everyone has the right to a nationality" ) came to the Second Session, its Working Group on the Declaration attached to it the following note: "The United Nations should assume certain responsibilities for those who have not a nationality and a Convention might be drawn up to this effect." 118 Following through on this note, Dehousse, the Belgian representative, proposed the following text to the Second Session: "Everyone has the right to a nationality. All persons who do not enjoy the protection of any Government shall be placed under the protection of the United Nations. This protection shall not be accorded to criminals, nor to those whose acts are contrary to the principles and aims of the United Nations." Over the objections of Lord Dukeston, the U.K. representative -who thought "it might place a

s�

·

·

World War II as Catalyst

81

heavy burden . . . o n the United Nations" and who did not want to raise false hopes ­ the Session adopted this Belgian amendment by I2 votes to 6 (SR.37jp. I3). Nothing of these Belgian additions survived in the Second Session of the Drafting Committee, which kept only the first sentence ("Every one has the right to a nation­ ality"). Eleanor Roosevelt "thought that the problem of stateless persons should be left to the Economic and Social Council" to deal with and suggested that this article be deleted.119 Cassin again expressed the view "that every human being should be a mem­ ber of a national group [and that the] United Nations should contribute to putting an end to statelessness by urging the necessary measures upon sovereign States." Pavlov asked Cassin "whether he thought that every individual should be forced to choose his nationality if circumstances so required," to which he received an affirmative reply. When he followed that up with the question as to "who would be authorized to take measures imposing a nationality," Cassin answered in terms of the need for "interna­ tional agreements sponsored by the 1 Jnited Nations " Allof this French pleading did not pay off; the French-sponsored sentence - "It is the duty of the United Nations, as well as the States Members, to prevent state­ lessness" -was rejected by 4 votes to 2, with I abstention, as was the UN sentence it was meant to replace (SR.39jp. 8). The role for the United Nations having been cut out, the Committee dropped the third sentence (which withheld UN protection from those who go against UN principles) without voting on it. That left only the first sen­ tence of the article ("Everyone has the right to a nationality" ), which was adopted by 3 votes to 3, with I abstention (p. 8). The Third Session dropped this original first sentence and replaced it with one proposed in a joint U.K.-Indian amendment. The new first sentence read: "No one shalt be arbitrarily deprived of his nationatity." 120 Metha explained that "the right to nationality had been intentionally omitted from the Indian and United Kingdom amendment. It was in fact difficult to decide whether that right was fundamental. For example, if a person fled from his country and sought asylum in another, thus losing his nationality, had.._he the right to claim the nationality of the country that sheltered him? That was a debatable point. She thought that the fundamental right was the rlght not to be deprived of nationality" (SR.60jp. 4). Oliver Stone, who represented the International Refugee Organization, provided a new perspective. He pointed out to the delegates that the "principle of interna­ tional protection for stateless people was accepted by the United Nations when it created the International Refugee Organization, and [that] therefore the Declaration on Human Rights should contain a statement recognizing the fundamental need of protection of thousands of people who were stateless either in law or in fact. Such a statement in the Declaration would not necessarily impose any specific resulting obli­ gation on the United Nations itself, but would leave it free to entrust that task to a sp�ialized ag�y" (SR.59jp. 7). This connection was not enough to overcome the standard opposition of the United States, the United Kingdom, and the Communist delegations. By 10 votes to 3 with 3 abstentions the Third Session adopted the U.K.­ India text as amended by the Uruguay delegation (which added the last clause): "No one shall be arbitrarily deprived of his nationality, or denied the right to change his nationality. " 121 The first sentence "Everyone has the right to a nationality" was rejected by 6 votes to 5 with 4 abstentions (p. 5).

82

Chapter 2

In the Third Committee the delegations of Cuba, France, Lebanon, and Uruguay all submitted amendments that sought to restore the original first sentence of the arti­ cle.122 The delegates also engaged in a probing discussion of the meaning of the word "arbitrary" in the second sentence. There were three basic positions on the meaning of this word, two extremes and a middle. The extremes were that the word meant "illegally" (held by the USSR and Thrkey) and that it hinted at principles ofjustice or natural law (held by Uruguay).tts The majority of delegates wanted to keep the word "arbitrary" because it al­ lowed for a negative judgment based outside of particular domestic legal systems, yet stopped short of the metaphysics implied by the Uruguayan proposal. Contoumas, the Greek delegate, leaned in the direction of the USSR/Thrkey position, but wanted to stop short of that. He "thought that the word 'arbitrarily' was satisfactory because it covered all action not in conformity with law, [and that the] Uruguayan proposal went too far" (p. 350). It also received the support of people like Cassin, who had sympa­ thies for the Uruguayan conception, if not the wording. He thought that in this article the word "arbitrary" had "a twofold meaning: no one could be deprived of nationality contrary to existing laws, and those laws themselves must not be arbitrary. The use of that word was an admonition to Governments; it did not represent any encroachment upon their rights" (p. 358). The delegates were able to express their support for the term "arbitrarily" by voting down a Guatemalan amendment to delete the word "arbi­ trary" without replacing it, which they did by 26 votes to 7 with 3 abstentions (pp.

356, 359).

The reintroduction of the original first sentence ("Everyone has a right to a nationality" ), which the delegations of France, Lebanon, and Uruguay proposed, was closely linked with the question of UN involvement in the realization of this right. In general it was felt that this blanket statement of the right would sooner or later have to lead to United Nations involvement in the matter. This connection was for some a reason to oppose the sentence, whereas for others it was a good reason to support it. Only a minority thought there was no connection between adopting this first sentence and counting on United Nations involvement. That being the case, the reintroduction of the sentence points to an implicit acknowledgment on the part of the drafters that the United Nations has duties in this area. They just did not think that the Declaration was the place to say this explicitly. Cassin made the case for the UN role by "emphasi[zing] the fact that . . . in draft­ ing a declaration of universal import [the members] met as an Assembly seeking the universal good. They could no_Ldose-their-qes to the fact that, in an international order based on the pri �lpkof national sovereignty, the existence of persons ;ejected

by their c� was a source offriction. The declar�tion should p�c:la1m tha_!_every human being had the right to a nationality, just as it proclaimed that everyone had the right to marrf;il was nor-ca:Ued upon to implement either right" (p. 35S). He was supported on both these counts by Ivar Lunde, a representative of Norway, who thought that "it was clearly the duty of the United Nations to act in defense of state­ less persons, and that idea should therefore be expressed in the declaration" (p. 353). Azkoul, the Lebanese representative, held that the right to a nationality was "essential to a declaration on human rights." It would "point out to both stateless persons and to States themselves that the problem of statelessness was one which the

World War II as Catalyst

83

United Nations and individual states must make every effort to solve." But he did not think that all of this needed to be stated explicitly, for he felt that the assertion by itself "would provide sufficient incentive for the United Nations to encourage action by Member States" (p. 356) . Jimenez de Arechaga, the representative of Uruguay, de­ fended the adoption of the first sentence in the full knowledge that if it were adopted "Members of the United Nations would be expected to adju st their national legisla­ tion to cover the right proclaimed in the declaration and to seek means of collective action for ensuring that no person would be deprived of nationality" (p. 353). But his delegation did not call for an explicit UN reference. Roosevelt said that her delegation would go along if the majority wanted the first sentence reintroduced, but that it was oppos ed to havi ng the Declaration im­ pose duties on the United Nations "in connexion with the question ofstatelessness." 1 24 Corbet, the representative of the United Kingdom, expressed the same views (p. 354). The representatives of Guatemala and Australia also supported the first sentence, but they, too, did not want the United Nations men tio ned explicitly. Those delegations who were opposed to even an implicit reference to the United Nations felt obliged to object to the reintroduction of the first sentence. Count Car­ ton de Wiart, the Belgian delegate, said he would support the basic text. He suspected that those delegations who wanted the first sentence reinstated, like France, Uruguay, and Egypt , made those proposals "so that, eve n tu ally, the United Nations might have to assume the implied responsibility and grant that right" (p. 350). Aquino, the dele­ gate of the Philippines, felt that "the declaration should include neither mention of the du ty o( the United Nations in co'Oiiexron with-the-problem-of statelessness-nor a statement that every human b eing had a right to nationality." He appreciated the " of the French delegation, but thought that "the declaration should " h igh purpose proclaim principles and leave the matter of implementation to the proposed cove­ nant." 12 6 These d e legations were joined by the Communist ones, who also opposed the first sentence because they saw it as a threat to national sovereignty. Demchenko, the UKSSR delegate, beli eve d that "the principle of national sovereignty would be_yio­ lated by the adoption of the ide�hat everyone had the right to a nationality" (p. 358). The first sentence - "Everyone nas .Qi� right �o a nationality " -was voted on twice. On the first reading it was adopted by 21 votes t� 9 with 6 abst�ntions (p. 35 9}."At that poin t a last minute Brazilian proposal toa"dd ihesentence"fhe fate of persons tempo­ rarily deprived of nationality should become the concern of the United Nations" was, over strong objections by Pavlov of the USSR, put to the vote and rejected by 31 votes to 6 with 3 abstentions.126 After that in quick succession the Third Committee took the following votes. The first sentence was again adopted, this time by 31 votes to 1, with 11 abstentions (p. 361). The first part of the second sentence ("No one shall be arbitrarily deprived of his nationality" ) was adopted unanimously and the second part ("nor to be denied to change his natio nality") was adopted by 36 votes to 6 with 1 abstention.m Articles 22, 28, 2 9, and 30 and the New World Order

Articles 22 and 28 are twins and emerged rather late in the drafting process. They both are the result of a discussion in the Third Session about everyone's right to work and the state's correlative duty to help find that work by fighting unemp loyment. In that

84

Chepter Z

discussion the representatives realized that the fight against unemployment could not simply be seen as the duty of each particular country separately, but that it required international cooperation. Going a step further, they noted that such cooperation is also needed to implement all of the other social and economic rights of the Declara­ tion. Out of this generalized awareness came Article 22: " Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and re­ sources of each State, of the economic, social and cultural rights indisp ensable for his dignity and the free development of his personality." Listing this article with what I have referred to as the "special international rights " of the Declaration, alerts us to the fact that, since Article 22 implicates all of the social, economic, and cultural rights, all of these other more specific rights are also international in the sense that their realization often calls for the kind of "international co-operation" that has been the theme of this section . During the discussions about Article 22 a fair number of representatives ex­ pressed the view that there was in this respect nothing special about the social, eco­ nomic, and cultural rights. They believed that international cooperation was equally needed for the realization of all the other rights of the Declaration. These delegations therefore proposed an even more generally aimed Article 28: "Everyone is entitled to a so c ial and international order in which the rights and freedoms set forth in this Declaration can be fully realized." Both sides in this dispute were satisfied when both articles were adopted . The discussions about these two articles are intimately connected to the question of whether or not there are two kinds of rights in the Declaration, "real" civil and political ones and "utopian" social, econ om ic, and cul tural ones. For that reason I tell the drafting story of these two international rights in Chap ter 6, section 4. That leaves us here with Articles 29 (paragraph 3) and 30. In his first draft Humphrey had included two articles that made the international theme far more explicit than anything we have found in the discussions of the rights to movement , asylum, and nationality. H47 committed states to implem ent this bill of rights.ln.-their domestic situations, whilems committed them to incorporating this bill into the in ternational legal system. Since the rights of the Universal Declaration . overlapped on ly in parts with what was alreadypresent in the legal systems of indi­ vidual countries, the first promise forced them to cover the rest as well. Human rights being almost totally new items on the scene of international law, the second promise forced them to also make those adjustments . In his c om p o s i t io n of these promises Humphrey must have felt the opportunity of a lifeti me come true. Before his appointment as the UN director for h uman rights he had wri tten an article addressing the problem of the s t atus of the individual in inter­ national law. The piece, entitled "The Parent of Anarchy," was an application of ideas expounded by Alexander Hamilton in Th8fideralist.128 Though it would be difficult to achieve, "the time has nevertheless come," wrote Hu�phrey, "when the essentials of the feder:alist-for- . . Ia must be a lied to th :.the v.4lolg...wmlQ80ciety." One thi ontrol could not be effective "unless the powers of the international government extend[ed] directly to individual men and women" (pp. 20-21). At the time he wrote "The Parent of Anarchy" Humphrey still thought that ·

�th�

World War II as Catalyst

85

it was the "first business of the United Nations" to set up such a world overnment, ave to be restricted to relatively few objects; and the the powers of which ' wou separate states would retam full mdependence and sovereignty in relation to every­ thingetse.''1 ..__ By the time he did the background research for the Human Rights Commission Humphrey realized that it was hardly probable, that the international community as manifested in the international legal order might be given exclusive jurisdiction in the matter of human rights and freedoms. This would involve not only the creation of a direct relationship between the individual men and women and the international order in the matter but the rupture of existing legal relationships between individuals and their national orders . . . . It is, therefm:e, unlikely, to say the least, that States will abandon jurisdiction in the matter of human rights and freedoms to the exclusive competence of the international community. The only possible alternative, if the international community is to have some competence in the matter, is to recognize the existence of concur­ reo

·

'sdiction that is to sa

both in the international community and in the var�te

orders...___,____.-Jn. more concrete terms, it is suggeste should formulate

an

t at

eCommtsston on Human-Rights

International Bill of Rights which will supplement, but not replace, exist-

g

ing national Bills of Ri hts. (W.4/p.

10)

:::=-

Instead of exclusive spheres Humphrey now recommended "concurrent jurisdiction" to the Commission, and his articles 47 and 48 seek to put that kind of system into place. H47 stated that: "It is the duty of each member State to respect and protect the rights enunciated in this Bill of Rights. The State shall when necessary cooperate with other States to that end." 190 This article is a direct reference to Article 56 of the UN Charter where, as Humphrey reminded the Commission's members, they had pledged to "achieve international cooperation . . . in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion" (W.4jp. 10). In H48 Humphrey stated how the states would fulfill the promise they made in the Charter: "The provisions of this International !}ill of Rights shall be deemed fundamental principles of international law and shall b� ­ come part of the national law of each of the member States of the United Na!ions. l Their observance is therefore a matter of mternaiiona concernand it shall be within the]iifisoicuon of the Umtell--'Nations to discuss any violation thereof." 151 In other · words, all the member states here�y_promise to mnetOeDeciaratton part of the sys­ tem of international law and also of their own domestic legaL§ystems. H47 and H48 are statements of principles of implementation. Because they were statements of prin­ ciple Humphrey included them, but because they were measures of implementation they ran into a great deal of trouble. Cassin used both articles in his rewrites and even added another one of the same type.182 The Drafting Committee did not discuss them much and did not vote on them or adopt them for inclusion. They were seen more as measures of implementation and deferred for possible inclusion in the covenant that was also being considered.tss How­ ever, as a result of input by the delegations from the Philippines, Panama, and France the Working Group of the Second Session recommended (but did not formally adopt) the following article: "The States Members of the United Nations shall ensure tha,t their law (statutes, regulations, and all administrative acts) is brought into and main-

86

Chapter 2

tai�fonni tf.-Wi�rinciples of the present Declaration. A sy�f effec­ tive !udicial and admi�rative :be:ntgan"""lZedby each State for the P-Urpose of penalizing VIolations of these principle.s" (57/p. 1 7 ). Out of this proposal came the third paragraplfOf Article 29, as well as Article 30. I shall trace each one separately.

�

Article 29, Paragraph 3

Whe n the above quoted article came before the Second Session of the Commis­ sion General Romulo, the representative of the Philippines, recommended its formal adoption on the grounds that "it was necessary to define the meaning of 'law,' as used in the Declaration; in the past many crimes had been committed in the name of the law" (SR.41/p. 3). He did, however, propose this shorter way of making the point: "All laws in any State shall be in conformity with the purposes and principles of the United Nations as embodied in the Charter." The difference between this text and the earlier H48 is that this one makes no reference to the Declaration. Cassin suggested that the phrase "and Declaration dealing with human rights" be added to this text, but General Romulo objected because some delegations did not want any implemen­ tation measures for the Declaration in the Declaration itself. Cassin yielded the point and by 13 votes with 3 abstentions the Second Session adopted the following text: � laws in any State shall be in conformity with the purposes and principles of the United Na�io.ns as embodied in the Chart sofar as lliey deal with human nghTs''\P-4)� This was done over the objections of Bogomo ov, t e e egate, who felt that before such a far-reaching article was adopted the whole of the text would first need to be discussed and states would need to be consulted on how they might "harmonize the provisions with their respective Constitutions" (p. 4). Colonel Hodgson, the Australian delegate, also strongly objected because "the question of how national laws were in conformity with the Declaration had no bearing on the Declaration itself" (p. 5). These kinds of sentiments prevailed in the Third Session of the Commission which, being in a mood to make cuts, decided by 9 votes to 1, with 4 abstentions to delete the article.154 The deleted article had demanded that states make their legal systems "be in conformity with the purposes and principles of the United Nations." That is a positive demand for implementation and was for that very reason rejected. But it is not all that different from the phrase "not be contrary to," which is how this article came to be rephrased in Articles 29 and 30. As a result of Egyptian and French proposals the Third Committee added this paragraph to Article 29: "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations." We should note that the disagreement between General Romulo, who wanted just the Charter mentioned and Professor Cassin, who had wanted to also make reference to the Declaration, was settled by way of a compromise. Neither document is mentioned. But the new word­ ing leaves no doubt that "the purposes and principles of the United Nations" include the rights listed in the Declaration, for they were proclaimed by the Third General Assembly of the United Nations. This is a roundabout way of saying that the legal sys­ tems of countries should be in conformity with the Declaration. ·

World War I I a s Catalyst

87

Article 3 0

The same article that served as precursor for Article 29's third paragraph was also the inspiration for Article 30. Mter that precursor (cited above) was adopted in the Sec­ ond Session, Malik performed on it the same positive to negative operation that made Article 29's third paragraph acceptable.tsa He proposed the following text to the Sec­ ond Session: "Nothing in this Declaration shall be considered to recognize the right of [any State or] any person to engage in any activity aimed at the destruction of any of the rights and freedoms prescribed therein" (p. 7). William Hodgson inquired why the article was limited to "persons" since in the past it had frequently been states which were the chief offenders against human rights, which Malik accepted. The article with the brackets removed was adopted by 8 votes to 7. This is very much what we have in Article 30. In the discussion of a very similar article for the draft covenant that was being considered at the same time, the idea behind the right and the article was clearly linked to the Nazi experience. The issue was that a state could have a perfectly good legal system and yet at the same time commit gross human rights violations. Not only the letter, but also the spirit of a legal system needed to be in accordance with the existence of human rights. Roosevelt acknowledged that "some provision should be made whereby the legal fulfillment of this Covenant should be bound up with its spiri­ tual fulfillment. The example of Hitlerian tactics had been cited. Nazi Germany had appeared to be legally fulfilling the duties and obligations of the state, but in practice had been destroying all human rights and liberties" (AC.l/SR.28jp. 4). While this was a good reason for some delegations to include the article, she herself proposed that the article be deleted because the "conditions of [such] spiritual fulfillment were too inexact" (p. 4). Malik, the Lebanese representative, defended the article's inclusion and explained "that the formulation of the article was based on the concept of check­ ing and preventing the growth of nascent Nazi, fascist or other totalitarian ideologies" (p. 5). On those grounds it was accepted for inclusion in the draft covenant, as well as in the Declaration. In the Third Session of the Commission, Pierre Ordonneau, a delegate from France, made that very point explicit. He thought it "was essential that the Declara­ tion should at least recall the dangers of Nazism . . . . It was wrong to deny a possible recurrence and the danger against which Article [30] was aimed was a serious one" (SR.74jp. 8). In response to another attempt by the United States delegation to delete the article, Pavlov argued that the article "provided . . . the indispensable elements of defense against the possible rebirth of Nazism or fascism. He emphasized that the article was the only one that could be used as a weapon against Nazism . . . . He ap­ pealed to the committee to consider its responsibilities before rejecting the article, which might in the future serve as a weapon against Nazism and fascism" (p. 7). The word "group" was added to Article 30 in the Third Committee. The French delegation proposed this amendment because "experience had shown that it was rarely States or individuals that engaged in activities that aimed at the destruction of human rights; such activities in recent times had been pursued by groups sometimes acting on the instructions or with the connivance of states" (p. 666). Pavlov immedi-

ately backed the French amendment "because experience had shown how dangerous were the Nazi groups which . . . by constant infiltration and propaganda had paved the way for the fascist regimes of Hitler and Mussolini" (p. 670). He went on to say that these dangers had by no means disappeared after the war and pointed to the Ku Klux Klan in the United States as one such organization of fascist character. "Naturally," he said, "attempts were made to belittle the importance for those organizations on the ground that their membership was very small and their activity of little consequence. He recalled that the same attitude had formerly prevailed concerning the fascist orga­ nizations of Hitler and Mussolini, the disastrous consequences of such indifference were unfortunately all too well known" (p. 671). Dehousse, the representative from Belgium, also "was firmly convinced of the necessity to stop the activities of subversive groups and thus to prevent a repetition of the experience of a number of countries in the years immediately preceding the war" (p. 667). The word "group" was included by 42 votes with 1 abstention and the whole article was adopted unanimously (pp. 672674). 2.6 Social, Economic, and Cultural Examples

In connection with these social, economic, and cultural rights, the Holocaust and the Nazi horrors did not suddenly drop out of sight, never to be mentioned again. In Chapter 6 (6.4) I explain that the drafters looked upon all of the rights and articles in the Declaration as having an organic unity. This means, for instance, that the ratio­ nale for the right to life carries over to the things people need (food, shelter, clothing, health care, education, and work) in order to first simply stay alive and then to acquire a decent standard of living for themselves and their families. All these interconnec­ tions are laid bare in the discussions of Chapters 5, 6, and 7 of this history. Many of them are connected to the fundamental human right of everyone to the free and full development of his or her personality, listed in Articles 22, 26, and 29. The drafters were acutely aware of the contrast between this most basic right and the practices of the Third Reich. They thought of expanding what is now Article 3 to include this right which would have brought all the social, economic, and cultural rights forward in the Declaration, but decided against it because they felt that this right was covered by the phrase "security of person." Below I directly connect some of these social, economic, and cultural rights to the experience of the war and the horrors it brought. Mter the right to a nationality (Article 15) the drafters list in Article 16 the right "to marry and to found a family." We have already seen that Cassin used the Nazi mar­ riage laws frequently to point to the need for certain legal rights, such as the righ t in Article 6 to be a person before the law. The stipulation that "marriage shall be entered into only with the free and full consent of the intending spouses" was meant to cut out the role of both religion and the state and stands in clear contrast to Hitler's pro­ nouncements in Mein Kampf, where he denied that marriage was "the holiest of human rights." "No," wrote Hitler, "there is only one holiest human right, and this right is at 1 the same time the holiest obligation, to wit: to see to it that the blood is preserved pure" (p. 402). This is why the Nuremberg Laws of 1935 forbade intercourse and mar­ riages between jews and non:Jewish Germans. It is also why Campos Ortiz, the Mexi­ can delegate to the Third Committee, wanted to repeat the nondiscrimination list of

!

World W•r II as C•talyst

89

Article 2 in the article on marriage. His argument was that "there had been notorious cases of discrimination in marriage, particularly by the Nazis." His delegation pro­ posed to insert in the first sentence the clause "without any limitation due to race, nationality or religion" (AfC.3/266). The Nazi discriminatory marriage laws and prac­ tices were so abhorred by the drafters that they broke with their policy of not repeating the prohibition of Article 2 and adopted this Mexican amendment by 22 votes to 15 with 6 abstentions (p.- 375). It is the only outright exception they made to this policy.186 In Chapter 5 I tell the drafting story of the work-related rights in Articles 23 and 24. While they originated in Humphrey's tapping of the Latin American socialist tra­ dition, at a key juncture-when the right to work was questioned on account of the enormous unemployment figures right after the war-Cassin explained to the First Drafting Session the purpose of the article in terms of the contributions workers had made to the war effort. He felt that the state owed it to the workers to find them work because in "two wars the State had demanded the maximum from millions of men and women and in these crises had taken over the control of the entire economy of the country" (SR.7jp. 3). This is in addition to the more basic point that the rights to work and to good working conditions were known to have been violated by the slave labor practices of the Nazis. I discuss this latter connection in the first section of Chapter 5. The third section of the same chapter traces the drafting history of Article 23's fourth paragraph, which is about the right to form and join labor unions. This item was placed on the agenda of the Commission because of union pressure on the Eco­ nomic and Social Council,187 The unions argued that they had been a key factor in the victory over the Axis powers and in helping the war-torn democracies get back on their feet. They wanted, therefore, to be rewarded with increased recognition of their importance. The clear text of Article 23, paragraph 4 shows they succeeded. The cluster of social security rights of Articles 22 and 25 also found their incep­ tion in the Latin American socialist tradition (I tell their drafting story in Chapter 6). The representative of the International Labor Organization (ILO) played a crucial role in the entire range of social security discussions. This organization had amended its constitution in light of the experience of the war and produced in May 1944 the so-called Declaration of Philadelphia.tsa Chapter I of this Declaration first asserts that "labour is not a commodity." Chapter 2 reiterates the ILO Constitution's statement that "lasting peace can be established only if it is based on social justice," which the Conference explains as "all human beings, irrespective of race, creed or sex, hav[ing] the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity" (p. 5). It then lists a host of programs that will help reach this goal of social justice, programs which are reflected in the Declaration's articles on work, social security, and' education. Santa Cruz, the delegate from Chile, often was the spokesman for the Latin American contingent. In the First Drafting Session when it was not yet certain whether or how many social, economic, and cultural rights were to be included in the Dec­ laration, Santa Cruz said he "felt the declaration, however short it might be, should include all the points that humanity expects to be included at this period of our his­ tory. To him it appeared to be especially important that economic and social rights be assured. The recognition of these rights would make the return of fascism impos-

90

Chapter z

sible," he said (SR.7jp. 3). After Humphrey had put in most of the social, economic, and cultural rights, no other delegate was more vigilant and more effective in keeping them in than Santa Cruz, whose confession here helps us see why he was so vigilant. Article 26 (on education) is one of the articles most clearly shaped by the experi· ence of the war. This article has three paragraphs, a nuts-and-bolts paragraph that is a standard constitutional item, a goal-and-purpose paragraph, and a paragraph that gives parents a prior right in deciding what kind of education their children shall have. The second and the third paragraphs were put in the article as a way of con­ demning what Hitler had done to Germany's youth and of making sure that it would never happen again. Like any organicist Hitler had a great deal to say about education in Mein Kampf. I quote a typical passage: "The crown of the folkish state's entire work of education and training must be to turn the racial sense and racial feeling into the instinct and intellect, the heart and brain of the youth entrusted to it. No boy or girl must leave school without having been led to an ultimate realization of the necessity and essence of blood purity" (p. 427). Hitler's National Socialist Party actually insti­ tuted this program of brainwashing. The War Crimes Report that the Secretariat had drawn up for the Human Rights Commission explained to the delegates, as if they needed to be told, that " 'in order to make the German people amenable to their will and to prepare them psychologically for war,' the Nazis reshaped the educational system and particularly the education and training of German youth, imposed a supervision of all cultural activities, and con­ trolled dissemination of information and the expression of opinion within Germany as well as the movement of Intelligence of all kinds from and into Germany" (W.l9/pp. 318-319). The second and third paragraphs of Article 26 were written in direct re­ action and opposition to this Nazi abuse of state power. Paragraph 2 of the article states: "Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the mainte· nance of peace." The first draft of Article 26, paragraph 2 was placed on the drafting table by Bienenfeld of the World Jewish Congress because his organization felt that there was a need to spell out both the goals and the spirit of educational institutions so as to avoid the kind of brainwashing the Nazi state had engaged in (SR.8jp. 4). Article 26's third paragraph was added for the same reasons. Both the Dutch and the Lebanese delegations submitted amendments about parental rights. It being the shortest one, the Lebanese amendment was adopte d after a vigorous discussion. The defense again was that the Nazis had usurped the prerogative of parents when they demanded that all children enroll in poisoned state-controlled schools. The paragraph was especially necessary because the word "compulsory" had been used in the first paragraph. As one last reference to Mein Kampf I cite the fact that for Hitler conscience was nothing but "a Jewish invention" (p. 479). The drafters' view of "conscience" was very different. They adopted numerous articles and clauses precisely because they were collectively outraged by what Hitler had done. They in effect summarize the findings of this chapter when they tell us in the second recital of the Preamble that they pro­ claimed the Declaration because "disregard and contempt for human rights ha[d]

World War II as Catalyst

91

resulted in barbarous acts which ha[d] outraged the conscience of mankind." When Cassin rewrote this text he added the phrase "before and especially during the last world war" (AC.l/Add.3). In Chapter 8, section 3, I give a full analysis of this phrase and explain why this addition was taken out. But- the Declaration being adopted only three years after World War II ended-even without that extra phrase any reader can guess that the "barbarous acts" that "outraged the conscience of mankind" are the ones discussed in this chapter. By using the phrase "the conscience of mankind" the drafters generalized their own feelings over the rest of humanity. Taking a posi­ tion diametrically opposed to Hitler's, they believed that any morally healthy human being would have been similarly outraged when placed in similar circumstances. This shared outrage explains why the Declaration has found such widespread support.

Chapter 3 Colonies, Minorities, and Women� Rights

We have seen (1.1) that the United Nations Charter contains seven human rights references. But the drafters of that Charter never speak of these rights as being in. alienable or inherent in the human beings that have them. Instead they unpack the notion of human rights negatively and in terms of the principle of nondiscrimination. Thus the only way the UN Charter writers tell us what they mean by their recur­ ring phrase "human rights and fundamental freedoms" is to prohibit discrimination among people on the basis of "race, sex, language, or reHgion." This short list of non­ discrimination items is the only explicit way the UN Charter gives content to the idea of human rights. Articles 2 and 7 of the Universal Declaration are an elaboration of this Char­ ter principle of nondiscrimination. The long list in Article 2 - "such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" -is an expansion of the much shorter Charter list "race, sex, language, or religion." 1 As Hernan Santa Cruz, the delegate from Chile, reminded his colleagues on the Third Committee, "article 2 [of the Declaration] aimed above all at giving expression to one of the basic provisions of the Charter. He recalled that the United Nations had been founded principally to combat discrimination in the world" ( Third, p. 129). Articles 2 and 7 of the Declaration use the prohibition of discrimination in slightly different ways, but, because it was one and the same principle that was involved, the drafting histories of these two articles are intimately intertwined, This chapter is de­ voted to Article 2 and its ramifications. I shall be referring to this strand of the prin­ ciple as the international strand because it prohibits discrimination in terms of "all the rights and freedoms set forth in this Declaration." In other words, the Universal Dec­ laration is being set up as a definite, identifiable, and external standard of judgment over whatever legal system happens to be in place at whatever place and time we pick.

The intent of Article 2 clearly is to judge any systems that fall short of this standard. Humphrey devotedjust one article to the matter of nondiscrimination. His Article 45 read: "No one shall suffer any discrimination whatsoever because of race, sex, lan­ guage, or political creed. There shall be equality before the law in the enjoyment of the rights enunciated in this Bill of Rights" (AC.lf3). Articles 2 and 7 of the Universal Declaration have a common origin in this single article of Humphrey's. Cassin lifted out the phrase "equality before the law" and made it the basis of what was to become our Article 7. Humphrey had left out the item of "religion" (which was on the Charter list) and replaced it with "political creed." Cassin restored "religion" to the list and ex-

Colonies, Minorities, and Womenlr Rights

93

changed "belief" for "opinion," thus expanding the list by one item. This gave Cassin the following principle: "Everyone is entitled to the rights and freedoms hereunder declared, without distinction as to race, sex, language, religion, or political belief" (AC.ljW.2jRev.2). Upon the suggestion of the United States delegation the phrase "hereunder declared" was changed to the present "set forth in this Declaration" and this text was sent to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities for advice on the final wording. This Sub-Commission recommended to the Working Group of the Second Ses­ sion the following text: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, sex, language, religion, political or other opinion, property status, or national or social origin." 2 The Work­ ing Group adopted this text by 3 votes for and 3 votes against. Article 2 ultimately expands this already expanded list. 3 . 1 The Communist Push for Nondiscrimination

There is too much nondiscrimination language in the Charter of the UN to say that the Communists introduced this principle into the drafting process of the Declara­ tion. But we can say that it is mostly due to their persistence that it is so prominent a feature of the document. More than any other voting bloc the Communists pushed from the very start for the inclusion of clear antidiscrimination language in the Dec­ laration. This nondiscrimination stamp is their mark on the document. At the start of the First Session of the Drafting Committee delegates engaged in a general discussion of the principles they thought should guide the drafting process. Vladimir Koretsky, the Soviet delegate, made the point "that one of the first prin­ ciples to be adopted in the formulation of an International Bill of Rights must be the destruction of discrimination and inequality" (SR.5jp. 5). He called upon the United Nations to eradicate discrimination, which he said "could be considered an interna­ tional political act" that was a threat to "peace and security" (p. 7). In other words, he wanted it to be one of the tasks of the United Nations to rectify discriminatory practices that took place within the borders of sovereign states. Though Koretsky did not specify the way in which this correction was to be made, his remarks suggest that he looked upon the principle of nondiscrimination as a moral standard of judgment against which the performance of nations could legitimately be measured. One meeting later he complained "that the ideas regarding discrimination as ex­ pressed by the various drafts had not been developed sufficiently." He mentioned the treatment of Indians in South Mrica and the unequal treatment of women in all areas of life as examples.3 In the Second Session of the Commission the Soviet delegation took the same high moral ground. It wanted the Declaration to say that acts of dis­ crimination "constitute a crime and shall be punishable under the law of the State" (SR.34jp. 10). Since the Declaration was to cover all systems of positive law, this de­ mand is an implicit acknowledgment that nondiscrimination is a moral principle that transcends national boundaries. When Eduardo Cruz Coke, a delegate from Chile, questioned why Alexei Pavlov was willing to put so much "power in the hands of the State, [since] . . . the State constituted the chief threat to the rights of the individual" (p. 10), Pavlov responded that "if no provision were adopted to prevent acts of dis-

94

Ch11pter I

crimination, it would mean that such practices as lynching Negroes would continue." This was just after President Truman's committee on the status of civil rights for Americans made its findings public. Pavlov was a man who meticulously researched his speeches, and we can be sure that at this point he had already read or heard about the indictment contained in the report. When he established his committee Truman had said that "the actions of individu­ als who take the law into their own hands and inflict summary punishment and wreak personal vengeance is subversive of our democratic system of law enforcement." • In­ deed, as had been expected, the report told the president that "lynching remains one of the most serious threats to the civil rights of Americans." 11 The debates in the Commission's Third Session on the meaning of the word "dis­ crimination" confirm Pavlov's worry about what he saw as a lack of support for a crucially important principle. At that stage what was to become Article 7 contained the right of all to "equal protection of the law against arbitrary discrimination . . . and against incitement to such discrimination" (102/p. 2). The Ukrainian delegation had proposed that the word "arbitrary" be deleted from the article. During a discussion of this proposal Pavlov repeated his earlier criticisms. As it stood, he said, "the Article talks only of 'arbitrary discrimination' and incitement thereto, whereas discrimination in general is not mentioned." He pointed out that the article condoned and justified "the so-called 'non-arbitrary' discrimination, i.e. discrimination based on the law." As examples he gave "the mass discrimination, most disgraceful and offensive to human dignity, which is embodied in the laws against Negroes in the United States of America or against Indians in the Union of South Africa." These laws showed how "wretched, incomplete, and consequently hypocritical and false is Article 3 [2 and 7] of the draft 'Declaration' in its present form" (SR.49jp. 9).6 Some of the delegates who felt pressured by the communist charges sought to defend the retention of the word "arbitrary" on the grounds that the word "discrimi­ nation" meant the same thing as the word "distinction" and that not all distinctions were invidious or harmful. Ignoring Pavlov's point about lawful discrimination, Roose­ velt explained that not all discrimination was "necessarily invidious; thus protection for reasons of old age would be of a useful and commendable type" (SR.52jp. 9). Both the Chinese and the French delegates thought that the word discrimination did mean the making of "invidious distinctions" and therefore favored the deletion of the word "arbitrary." Pavlov concurred, noting that the word "discrimination alone had a derogatory connotation. Discrimination which harmed men was quite different," he said, "from any distinction established to assist certain groups which require special aid" (p. 9). The Ukrainian proposal to delete the word "arbitrary" was adopted by 9 votes to 6, with 1 abstention (p. 13). After the word "arbitrary" had been deleted what was left stated that "all are entitled to equal protection of the law without any discrimination, and against any discrimination , , . or incitement to such discrimination" (SR.53jp. 5). Noting the mul­ tiple occurrence of the word "discrimination" "with two different shades of meaning," A. ]. D. Hood of Australia proposed to replace the first use of it with the word "dis­ tinction" (p. 10). When he saw the opposition this elicited he withdrew his suggestion, which he had "put forward only in the interest of clarity." 7 Roosevelt was clearly in favor of the change, which is why she ruled the proposal to be merely a stylistic one.

Colonies, Minorities, and Women� Rights

95

Michael Klekovkin, the delegate from the Ukrainian Soviet Socialist Republic, "could not agree . . . that style only was involved. The (withdrawn) Australian substitution of 'distinction' for 'discrimination' was an alteration of substance, he argued. Further­ more, the word 'discrimination' had already been adopted at the previous meeting, and must [therefore] be retained," he said (p. 9). Even though Hood had withdrawn his proposal -which meant the word "dis­ crimination" remained throughout the article -Roosevelt nevertheless asked a draft­ ing group that had been working on the article "to take into account the fact that the word 'distinction' was used throughout the Charter, and that the use of the word ' discrimination' would constitute an important change" (p. 10). The group returned the article with the word "discrimination" retained (SR.54jp. 2). In the Third Committee the Cuban delegation proposed to merge what became Articles 2 and 7 into a single article prohibiting discrimination. Pavlov again came to the defense of a very explicit and double presence in the Declaration of the principle of nondiscrimination, which in his eyes could and should be used to judge the do­ mestic policies of all nations. This time he added some of the British colonies to the list of areas where gross discrimination was being practiced. He argued that a merger of the two strands into one article would "weaken the principle set forth in article 2." He pointed out that while in "certain countries the question of discrimination was perhaps not of extreme importance," in many cases it still did exist and he went on to give as examples the treatment of black people in the United States, of Indians in South Mrica, and of the peoples in the British colonies of the Gold Coast, Nigeria, and Rhodesia (p. 131). Pavlov also chastised the United Kingdom and the United States for not doing more to implement the equal rights ofwomen in the political arena. "Thus of the 640 members of the British Parliament only 24 were women and only nine women were members of the United States Congress. The Supreme Council of the USSR included 227 women, a much higher proportion than that found in any other parliament in the world. Those figures," he summed up, "were all the more remarkable, since in thirty countries of Europe and America women had no vote" (p. 131). The Cuban amend­ ment ran into heavy opposition and was never voted upon. Santa Cruz objected to these pointed attacks with the observation that Pavlov him­ self had objected to "remarks on the state of affairs prevailing in the Soviet Union . . . in the debate on freedom of movement" (p. 131). Durward Sandifer, a United States representative to the Third Committee, also "expressed his surprise that the USSR, which fought against discrimination in all its forms, should seek to restrict the bene­ fits of article 12 [on asylum] to certain groups of people" (p. 334) . These inconsistencies do not remove the fact that it was primarily Communist insistence that stamped the Declaration in a clear way with the prohibition of dis­ crimination. With strong assists from the Indian delegation, the USSR delegation was a crucial player in the expansion of nondiscrimination items in Article 2. The Com­ munist delegations were also great allies of the women's lobby and helped that lobby clear the text of sexist language and insure equal rights for women across the entire range of the Declaration. It was Communist persistence that got the right to be protected against incite· ment to discrimination to be attached to Article 7 (see 2 .4). If Stalin and Tito had not

96

Chapter .J

split, the De.claration might have had in it an article applying the rights of the Dec­ laration specifically to members of linguistic, religious, or racial minority groups (see 7. 4). The absence of such an article can now be seen as one of the m�or weaknesses of the Declaration. The Communists knew this was the case and fought (inefficiently) to have such an article included. Finally, the Communist insistence on nondiscrimina­ tion had a great deal to do with making the Declaration a secular document (see 8.1). This means that people from all sorts of religious persuasions, as well as agnostics and atheists can accept and embrace the Universal Declaration from what Tore Lindholm has called their own "normative heartland." 8 As another example of the Communist nondiscrimination stamp I mention the heated debates about the second paragraph of Article 2 which states: "Furthermore, no distinction shall be made on the basis of the political, jurisdictional or interna­ tional status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty." In other words, it does not make any difference where and under what kind of politi­ cal or legal system a person lives. He or she is "entitled to all the rights and freedoms set forth in this Declaration," no matter what. The Communists were the first to place the issues raised in this paragraph on the drafting table and to keep them there until the people of the colonies were covered by the Declaration. 3.2 The Problem of the Colonies

In 1914 Lenin calculated that "more than half of the world's population lived in colo­ nies, which together covered 3/4 of the world's territory," a calculation that was still roughly correct at the end of the 1940s.9 This fits the estimate Philippe De La Chapelle made of the United Nations membership at the time the Declaration was adopted: "North and South America with 21 countries represented 36% of the total, Europe with 16 countries 27% , Asia with 14 countries 24%, Mrica with 4 countries a mere 6%, and the South Sea Islands with three countries 5%." 10 This shows that the con­ tinents of Africa and Asia were grossly under-represented. And that is where in the 1940s some of the most prominent drafting nations still had their colonial empires. The Declaration was written at a time when these empires just started to break up. Two of the most influential drafters, Malik from Lebanon and Romulo from the Philippines, were from countries that gained their independence in 1946, the year the Nuclear Committee met. Syria also joined that year. In 1947 India, Burma, Pakistan, and in 1948 Ceylon gained their independence. Both India and Pakistan played an active role in the drafting process. The People's Republic of China was not established until 1949, meaning that the great talents of P. C. Chang, which helped shape the Dec­ laration, were used on behalf of Chiang Kai-shek's fading government rather than to express the wishes of the new Communist regime. That same year Indonesia gained its independence from the Netherlands. Other Asian nations, such as Laos, Cambodia, and Vietnam, did not gain their independence from France until 1954. None of these Asian countries were therefore directly represented in the drafting process. As for Mrica, only four nations from that continent took part in the process.11 Harry Mag­ doff reports that in the five years from 1958 to 1962 "twenty-three new independent nations were established in tropical Africa; and from 1963 to 1968 an additional ten

Colonies, Minorities, and Women' Rights

97

independent nations came into being there." 12 At the Declaration's Fiftieth Anniver­ sary, the United Nations has three times the membership it had when the Declaration was adopted. This tripling of the UN membership has legitimately fed the suspicion that the process by which the Declaration came into being was badly flawed. According to some scholars the damage done back then is so great that the document has no real legitimacy outside of the West. Adamantia Pollis and Peter Schwab believe, for in­ stance, that "to argue that human rights has a standing which is universal in character is to contradict [the] historical reality," which is that the 1945 San Francisco Confer­ ence at which the United Nations was created "was dominated by the West, and that the Universal Declaration was adopted at a time [1946-1948] when most Third World countries were still under colonial rule." 13 These two scholars have voiced a very com­ mon concern about the Declaration and many critics share their conclusion that in spite of its title the Universal Declaration can only have "limited applicability" and that attempts to enforce it globally "are bound to fail." 14 The Communist drafters brought this problem of the colonies to the attention of their colleagues, a fight ensued, and as a result the colonial peoples were put into and are now "covered by" the Declaration in more than one place, although not in as clear a manner as their defenders wished. Geography merges with ideology once we realize that many of the new member states from Mrica and Asia have a more communi­ tarian political philosophy than that generally held by those nations around the North Atlantic which dominated the drafting process of the Declaration (see Chapter 7). Though the deliberations about the Declaration began in the spring of 1946, the problem of the colonies did not arise until a year and a half later in the winter of 1947. One would not expect the colonial powers themselves to raise the matter, and they did not. The early drafts contained no reference at all to the colonies. The shift came with a new emphasis in Soviet policy. Until the fall of 1947 the Soviet Union had been preoccupied with problems in post-war Europe, but it began to cast a wider glance at a meeting in Poland at which the Cominform - the Communist Information Bureau-was established. Andrei Zhadanov, Stalin's heir apparent, delivered the key speech and said that the world was divided into two camps, "the 'imperialist and anti­ democratic camp,' led by the United States, and the 'democratic and anti-imperialist camp,' led by the Soviet Union." He went on to assert that there was a "crisis of the colonial system" and that "the peoples of the colonies no longer wish to live in the old way. The ruling classes of the metropolitan countries can no longer govern the colo­ nies on the old lines." 16 The impact of Zhdanov's widely circulated and translated speech was immediately felt in the deliberations of the Second Session of the Human Rights Commission, which met that December. In one of the working groups of that session the British and the Soviet delegates clashed more than once over the implications of the Declaration for the peoples living in the colonies. The USSR and the BSSR delegations quoted the United Nations Char­ ter on the responsibility it says metropolitan powers have over the non-self-governing territories under their jurisdiction.16 On that basis they pushed for the holding of elections in the non-self-governing territories and in the colonies (SR . 7 ). R. P. Hep­ pel, the British observer in the Working Group, pointed out that some "of the western democratic procedures" were not recognized by "some of the British Mrican depen-

98

Chapter !

dencies . . . their forms of native government [being] based on old-established cus­ toms with which it was the policy of his Government to interfere as little as possible" (p. 8). The Working Group did not replace the word "everyone" in Article 21's state­ ment that "everyone" has a right to take part in the government of his country with the word "citizen" precisely to draw in those peoples living in the colonies.'? The matter came to full-blown debate in the Third Session of the Commission in May and june of 1948. The operative paragraph of the Declaration recommends that it be observed "both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction." "Territories under their jurisdic­ tion" is an oblique reference to the colonies administered by the metropolitan powers and was added upon the recommendation of the Egyptian delegate, Loufti. A sub· committee on the Preamble had deviated from the United Nations Charter in that it had submitted a version that made no reference to trust and non-self-governing territories. The Soviet Union sought to remedy this serious omission with a rather cumbersome amendment.18 The Egyptian representative warned his colleagues because he "considered the idea embodied in the USSR proposal to be extremely important. It was essential," he said, "that the Declaration should state that it was for nations and peoples that were not autonomous or were under Trusteeship" (SR. 78jp. 6). Ignoring the precedent of the Charter, Geoffrey Wilson, the U.K. representative, objected to the Soviet version because he was opposed "to the apparent discrimination made in the USSR text by especially mentioning the trust and non-self-governing territories" (SR.77jp. 12). His French colleague, Ordonneau, spelled out what Wilson had only suggested, namely, that there was no need to single out the colonies because he rejected the Soviet sug­ gestion that "the populations of these territories did not enjoy the essential rights and freedoms on an equal footing with the population of the metropolitan territories" (p. 13). Nevertheless to meet the Soviet point, the much shorter and therefore less threatening Egyptian phrase ("and among the peoples of territories under their juris· diction") was adopted. In the next meeting a Chinese proposal to insert the words "for all peoples" before "for all nations" in the same operative paragraph was also adopted to pull in the colonies without mentioning them explicitly. An even bigger clash occurred in the fall in the debates of the Third Committee. The Yugoslav delegation proposed to add to the Declaration a separate article which stated that "the rights proclaimed in this Declaration also apply to any person belong· ing to the population of Trust and Non-Self-Governing Territories" (30 7/Rev.l/Add.l). Since the phrase "Non-Self-Governing Territories" was a euphemism for the colonies, this article went a long way to meeting the Charter's demand that human rights also apply to the peoples in the colonies. With a vote of 16 to 14 and 7 abstentions, this Yugoslav article was adopted (p. 746). Its inclusion represented a definite strengthen· ing of the universality of the document. The groups that voted against or abstained from voting on the Yugoslavian proposal consisted of the colonial powers who were joined by nations from Latin America.19 As rationale they claimed that the article on discrimination sufficiently covered the issue and that it was unwise to mention special cases for fear that other possible exceptions that were not singled out would avoid judgment. The clearest statement on behalf of the colonial peoples came from A. M. New-

Colonies, Minorities, and Women!r Rights

99

lands, the New Zealand delegate. She felt that "all delegations would probably agree in principle that the human conscience has progressed so far as to find oppression of colonial peoples intolerable." To those who said that the general statement against discrimination was enough she answered that the general principle had been repeat­ edly declared, "but it had not always been applied in colonial territories." She did not think that a vague line or two in the Preamble or operative part was good enough. To avoid all possible misunderstanding a separate article was needed since "the rights of the colonial peoples should receive the same consideration as those of others, if the Declaration was to avoid the appearance of making discriminations." Delegations which had opposed this article "had little idea of the feeling of exasperation and de­ spair generated in peoples living under colonial regimes." 20 Mter adoption the new Yugoslav article (with the rest of the draft Declaration) was given to a subcommittee on style and arrangement to be put in its proper place. If the colonial powers had had no hidden agenda and really only believed that Article 2's first paragraph was enough, then there would have been no need for them to exceed their mandate. But that is what they were caught doing. The Cuban delega­ tion had proposed that the following be added as a second paragraph to Article 2: "Neither shall there be any discrimination against anyone because he is an inhabitant of a non-self-governing territory, trust territory or metropolitan power (administrative authority)" (AjC.3jSC.4/3). A note was attached saying that "this text is to replace the additional article" on the colonies that had been adopted. This proposal was passed on to the subcommittee on arrangement and style, which had on it delegates from Australia, Belgium, China, Cuba, Ecuador, France, Lebanon, Poland, the Union of Soviet Socialist Republics, the United Kingdom, and the United States of America. This subcommittee had been charged to examine the draft Declaration "solely from the standpoint of arrangement, consistency, uniformity and style" (AjC.3j400/ Rev.l). It nevertheless accepted the Cuban proposal in a revised form and proposed that a second paragraph be added to Article 2: "Furthermore, no distinction shall be made on the basis of the political status of the country to which a person belongs" (400/Rev.l/Annex A). The phrase "Trust and Non-Self-Governing Territory" had been dropped and replaced with the phrase "political status of the country" and the colo­ nies were demoted from having their own separate article to becoming hidden in the second part of an other article. In their report the members of the subcommittee admitted that three of them (Ecuador, Poland, and the USSR) had objected to the ac­ ceptance of the (revised) Cuban proposal on the grounds that "the Sub-Committee had exceeded its terms of reference in changing the additional article adopted by the Third Committee" (400jRev.ljart.2,par.2). In the Third Committee's discussion of the subcommittee's action, Guy Perez Cis­ neros, the Cuban delegate, repeated his argument that the idea at issue should be ex­ pressed "in such a way as to ensure universal application. It was not only a question of Trust and Non-Self-Governing Territories. There were other countries, namely, coun­ tries under foreign occupation, which none had yet thought of defending" (p. 856). He did have a point, but the main issue of adhering to the Charter's mandate and ap­ plying human rights in a clear and straightforward manner to the colonies was being subverted. Demchencko, the representative from the UKSSR, said that he was not surprised,

1 00

Chapter J

for the changes that had been made "were only one more manifestation of the atti­ tude which certain colonial countries had maintained . . . giving seemingly innocent . drafting considerations as a pretext, certain delegations had wished at all costs to prevent the declaration from including explicit mention of the populations of Non­ Self-Governing or Thust Territories" (p. 860). Carrera Andrade, the Ecuadoran repre­ sentative, reminded his colleagues that the "explicit purpose" for the adoption of the separate article was "to extend the protection of the declaration of human rights to the inhabitants of the colonies" (p. 858). The subcommittee's recommendations subverted that purpose. Fryderika Kalinowska, the Polish delegate, was of the opinion that the demotion of the separate article on the colonies "sprang from the same attitude of mind which was in favor of the colonial system" (p. 854). This is strong language, but it is not without merit. Benigno Aquino of the Philippines also thought it "indisputable that the Sub-Committee had gone beyond its terms of reference" (p. 861). Most of the metropolitan powers followed the Cuban line, arguing that the more vague and general Cuban terminology was more inclusive and therefore more in keeping with the requirement of universality. Several defenders of the Cuban pro­ posal themselves had trusteeship agreements with the United Nations and they liked the more general language better because it did not single them out as possibly not doing a good job.21 Since the agreements they had signed with the United Nations did have several human rights stipulations in them, which Humphrey's staff had distrib­ uted to the Commission of Human Rights, they felt that these territories did not need to be singled out (W.13). Defenders of the separate article, on the other hand, felt that they were simply continuing a United Nations policy of spelling out the human rights requirements for trust and non-self-governing territories, a precedent set by the Charter itself when it demanded in Article 76(c) that any nation that signed a trustee­ ship agreement "encourage respect for human rights and for fundamental freedoms for all." Cassin pointed out to his colleagues that the Cuban proposal had met with the approval of the majority of the subcommittee members and had passed with a vote of 6 to 3, and he "protested against the tendency to question the good faith of the members who constituted that m;yority" (p. 857). The Belgian representative, Count Carton de Wiart, saw the advantage of the more general terminology in that it also covered "territories with a special juridical status . . . namely Tangier and Thieste currently and Jerusalem in the future." The crucial issue for him was "the universal application of the Declaration of Human Rights" and he wanted to avoid "the danger of excluding a single human being from enjoying the rights and freedoms to be estab­ lished in that declaration" (p. 859).

The chairman, Malik of Lebanon, agreed that the subcommittee "had gone be­ yond its terms of reference" and so ruled. When the Cuban delegation appealed that ruling of the chair it was rebuffed in a vote of 29 to 7, with 9 abstentions (p. 862). This meant that the application of the rights in the Declaration to the peoples in the trust and non-self-governing territories once again had its own separate article. It would now take a two-thirds m;yority to get the matter reconsidered. The British delegation sought to do just that and its delegate, F. Corbet, "moved formally that the Commit­ tee should re-examine the additional article." This motion was defeated in a vote of 25 to 14, with 6 abstentions (p. 863). This is one vote short of the required two-thirds

Colonies, Minorities, and Women� Rights

tOt

majority and set the stage of yet an other attempt in the General Assembly debates that followed. There, in an unusual move, the British delegation proposed to delete the sepa­ rate article on trust and non-self-governing territories and make it the second para­ graph of the article on nondiscrimination.22 This new paragraph was adopted (and the separate article dropped) with a vote of 29 to 17, and 10 abstentions (p. 932). The sym­ bolism of that proposal and vote was a powerful one, for in law, as in poetry, separate lines are crucial. Davies, the U.K. representative, argued that "if the colonial territo­ ries were singled out, so should the countries behind the iron curtain" (p. 848). If the article on nondiscrimination meant exactly what it said, then, he said, "there was no reason to add an article three stipulating that those rights applied to the inhabitants of the Trust and Non-Self-Governing Territories" (p. 883). Ljuba Radevanovic, the representative from Yugoslavia, retorted that the provi­ sion of Article 3 was a step forward because it clearly stated "the equality between the colonial populations and those of other territories" and thus "contained the great principle of justice towards the unhappy colonial peoples who had always been de­ nied that right" (p. 917). Katz-Suchy, the Polish delegate, felt that "the British colonies were a gigantic enterprise for the exploitation of cheap labor." 25 To which Dimitri Z. Manuilsky, the delegate from the UKSSR, added the observation that "only seven out of every thousand children of school age attended school" in Nigeria, which had been under British rule for over a century (p. 870). Manuilsky argued that "the absurd theory current among colonial powers that there were superior races and inferior races must be eradicated." To see that theory · in practice, one did not have to look, he said, at Nazi Germany or at South Africa, for one could also find "the same [racist] situation, for instance, in Indonesia" (p. 872). That comment did not help get the Dutch vote, for at that time Indonesia was still under Dutch rule. The United States was not a colonial power, but that is the company Manuilsky placed it in when he told the Assembly that in the United States "many children . . . did not attend school or received inadequate schooling [and that the] situation was obviously worse in the colonial territories" (p. 870). The British proposal to demote the colonies was accepted with 29 votes for, 17 against, and 10 abstaining.24 No roll call was taken. If only six delegations had voted the other way the colonies would not have been demoted, which might have hap­ pened had some delegations not felt personally attacked. For instance, New Zealand had voted for the separate article in the earlier vote in the Third Committee, but it supported the British move in the General Assembly. The Lebanese delegation also sat on the fence. It is also quite likely that all the Communists except for Yugoslavia abstained from voting on the U.K. proposal. The separate article in the text had origi­ nated with the delegation from Yugoslavia.25 By this time Tito and Stalin had publicly split, so the other Communist delegations did not support the Yugoslav initiative and instead presented their own amendments for consideration (A/784/p. 854). Vyshin­ sky, the delegate from the USSR, attacked the Yugoslav article as "still less satisfac­ tory" than the highly defective article on nondiscrimination, because it contained no reference to the right of nations to self-determination (p. 926). By not supporting their Yugoslav comrades, the other Communists in effect undercut their own plan of making the colonies more visible and helped the British demotion succeed.

I OZ

Ch•pter 3

3 . 3 Race, Color, National Origin, and Language Race and Color

That the Universal Declaration should bar discrimination on the basis of race and color was a foregone conclusion. Race is first on the short Charter list of nondis­ crimination items. And we saw in the preceding chapter that most of the Declaration was drafted in direct response to the horrible excesses of Hitler's racist policies. The first thing the Allied powers did after the war was to dismantle Hitler's racist legal structures. The fourth political principle ·announced at the 1945 Potsdam Conference stated that "all Nazi laws which provided the basis of the Hitler regime or established discrimination grounded on race, creed or political opinion shall be abolished." 26 The peace treaties with Axis powers also included provisions for the repeal of all racist legislation and discriminatory practices (Sub.2/3jp. 9), It is therefore inconceivable for the Universal Declaration not to have prohibited discrimination on the basis of "race" and "colour," the first two items on the list in Article 2. When the article on nondiscrimination came back from the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities its list did not in­ clude "colour." Instead, the Sub-Commission's report contained a note saying that "the Sub-Commission . . . thought there was no need for a special mention of 'colour,' as that was embodied in the word 'race' " (52/p. 4). Between that note and the inclu­ sion of the term in the final product lies the following story. In one of the very first sessions of the Sub-Commission Minocheher Masani, an Indian expert, formally proposed that the word "colour" be added to the list of items on the basis of which discrimination was to be prohibited. His reasoning was "that race and colour were two conceptions that did not necessarily cover one another." One indication of this was that organizations such as the American Federation of Labor "had sought fit . . . to refer explicitly to colour as well as race in connection with dis­ crimination" (Sub.2/SR.4/p. 2). Two related objections were raised to Masani's proposal. The first one was that the Declaration's list of nondiscrimination items should not be different from the four items of race, sex, language, and religion in the UN Charter. Herard Roy, a Haitian expert, was the strongest proponent of this view. He noted that at "none of the con­ ferences of the ILO, WHO, and UNESCO, at the Pan American Conference or in the Charter of the United Nations had any words other than race, sex, language, or reli­ gion ever been used. To add the term 'colour' now, would be to assume that colour was not implied in any of the international documents that mentioned race." And that might mean that "the whole Charter would have to be revised" (pp. 4-5). Jonathan Daniels, a U.S. expert and Joseph Nisot, a Belgian expert, were of much the same opinion. The second objection was a related but broader one. It was based on the fact that there existed no scientific definition of race and that the word "race" in the Charter could therefore only have a more general sense, which usually included colour. This was t!te position Samuel Spanien, a French expert, took when he said that since "there was no scientific definition of the word race . . . it [was] desirable for the word 'color' to be added" (p. 3). Similarly, Rezazada Shafaq, an expert from Iran, "pointed out that since there was no precise scientific definition of 'race' the word had to be used in a

Colonies, Minorities, and Women'S Rights

101

general sense, which included the idea of colour" (p. 3). Considerations like these led McNamara, an Australian expert, to urge that "if there was the slightest doubt it was better to add the word 'color' than to risk leaving out certain groups" (p. 3). Having heard the evidence on either side, Dr. C. H. Wu, a Chinese expert, who first had spo­ ken against the insertion, changed his mind. He now thought it "preferable for the Sub-Commission to define the term more precisely by adding the word 'colour'; and the authors of the Charter could not be blamed for that" (p. 4). If a vote had been taken, the term "colour" probably would have made it onto the list at this time. However, E. E. Ekstrand, the chairman and Swedish expert on the Sub-Commission, "proposed that since opinions in the Sub-Commission were divided regarding the insertion of this term, a note reading as follows ["It being understood that the term 'race' includes the idea of 'colour' "] should be added to the text" (p. 5). This was done. In the Second Session of the Human Rights Commission also it was the represen­ tative of India who first broached the subject of going beyond the UN Charter. Hansa Metha observed that in the covenant version of this article the word "colour" followed the word "race" and she wondered whether the same thing should be done in the Dec­ laration's list of items. She said that she herself "understood the term 'race' to include colour, but if there was any doubt on the subject, she thought that the word 'colour' should be inserted in the Declaration" (SR.34fp. 10). Malik, the representative of Lebanon, noted that "the representative of India had raised an important point since 'race' and 'color' did not mean the same thing, neither was the conception of colour included in the term 'race' " (p. 10). General Romulo, the representative of the Philip­ pines, "supported the Indian proposal that the word 'colour' be added to the Article in the Declaration" (p. 10). The Indian amendment to add the word "colour" after the word "race" was adopted by 10 votes to none, with 6 abstentions (p. 11). I expect that readers will agree with those of the above mentioned delegates who claimed that there was no scientific definition of race. Race involves the classifying of peoples on the basis of inherited characteristics, of which skin colour is only one.27 Colour is simply the most obvious and most frequently used one on a long list of physiological characteristics that governments and individuals often use to draw in­ vidious distinctions between people. This lack of a factual basis for any definition of race makes for a close affinity between the items of race and colour and the items of "language" and "national origin" which are also on Article 2's lbt. Together "race," "colour," "language," and "national origin" build a strong protective wall around mem­ bership in ethnic, cultural, and linguistic minority groups. National Origin

The item "national origin" was first proposed by Borisov, the Soviet expert, on the Sub-Commission. Just as it had in the case of race -saying it included color- the Sub-Commission attached a note to the item of "national or social origin," which said that "the Sub-Commission wished to make it clear that the words 'national ori­ gin' should be interpreted by taking this conception, not in the sense of citizen of a State, but in the sense of national characteristics" (Sub.2/SR.21/p. 5 ). This reading of "national origin" links it to "race" and "color" and strengthens the protection of the

104

Chapter I

rights of members of ethnic and cultural groups. It is significant for our interpreta­ tion of Article 2 to note that the Commission on Human Rights accepted this gloss, making it an authoritative interpretation. When Borisov presented his expanded list, Nisot, the Belgian expert, asked him what he meant by the phrase "national origin." 28 William McNamara, the Australian expert, volunteered that "it was synonymous with nationality, but that it might also have a wider meaning" (p. 6). Monroe, the British expert, did not think the two were synonymous, while Spanien, the French expert, "suggested omitting the words ' national or social' . . . [which] would leave the word 'origin' to cover everything" (p. 7). Borisov did not think the word "origin" alone would do since the Soviet Union had, for instance, "various nationalities of the same origin" (p. 7). Shafaq, the Ira­ nian expert, proposed to delete the word "national" from the Borisov list. Spanien and Monroe offered a joint amendment dropping both the a
Colonies, Minorities, and Women!l Rights

105

This authoritative gloss shows that in Article 27's right of everyone "freely to par­ ticipate in the cultural life of the community" (see 6.3}, the definite article just before the word "community" must be taken in a benign way. Since most of the expansion of the short Charter list occurred in the Sub-Commission that was explicitly charged with the protection of minorities we can be certain that the items being discussed in this section were indeed meant to protect members of these groups. (And, as that same Sub-Commission was also charged with preventing discrimination in general, these same items also serve that broader purpose.) This minority rights interpretation is strengthened by the fact that "language," which is intimately connected to the right to culture, is also an item on the list of Article 2 . language

In Chapter 7 (7.3) I discuss the question of language rights in connection with the right to an education and point out that Article 26's third paragraph gives to all parents, including those who are members of minority cultural groups, the "prior right. to choose the kind of education that shall be given to their children." We can, with a slight reach, read this paragraph as giving to members of linguistic minority groups the right to help choose the language of instruction in these minority oriented schools. A Danish amendment to the education article presented to the Third Com­ mittee sought to make this right explicit. It stated that members of various minority groups had the right to "establish their own schools and receive teaching in the lan­ guage of their own choice" (A/C.3j250). Cassin observed that the French delegation "was ready to support the Danish amendment . . . but considered article 2 of the Dec­ laration a secure basis for ensuring the rights of minorities. If there was any doubt concerning the rights of minorities to education and justice, it would be preferable to include the necessary additions and definitions in article 2 rather than to intro­ duce reservations and expectations into other articles where they would be out place" (p. 587). This is an authoritative example of how any item on the list of Article 2 can be used to interpret the meaning and scope of the other articles in the Declaration. Besides education, the other two important areas where members of linguistic minority groups have a great interest in seeing their language rights protected are religion and courts of law. Article 18 of the Declaration most certainly gives members of minority religious groups all the rights members of majority religious groups have, including the right to conduct all or any religious activities in their native tongue (see 7.3). The remainder of this section is devoted to the drafters's view and votes on the right to use a minority language in courts of law. The right of linguistic minorities to use their native tongue in the courts did not become an issue until Stepanenko, the Byelorussian representative, made a point of it in the Working Group of the Second Session of the Commission. At the time the rele­ vant provision stated that "no one shall be convicted . . . except . . . after a fair and public trial at which he has had an opportunity for a full hearing and has been given all the guarantees for his defense." Stepanenko observed that this article ought to also include "provisions concerning the right of the accused to use his own language in court.'�C.2/SR.3jp. 10). Cassin, whose revision was being discussed, responded that "this right was provided for in the article 36," which was the LauterpachtjHumphrey

I 06

Chapter I

article on minority rights.90 He also made the point that a provision like this might better be worked out in the Covenant on which the Commission was also working. Bogomolov, the USSR delegate, took exception to that idea since, if the conven­ tion did not materialize, the Declaration would be left impoverished (p. 11). Romulo of the Philippines supported the Communist initiative and proposed the phrase "in a fair and public trial and in a language he understands" (p. 11). This was a subtle change for the worse because members of minority groups want the use of "their own language" in court and not just the use of a language they understand, though for rea­ sons ofjustice they do want that too. This is one of the differences between immigrant groups and groups with a long historic minority status. When Cassin again revised the article he had a choice between the Byelorussian phrase "in his own language" and the Romulo phrase "in a language he understands." He made the provision say that the defendant "shall be entitled to aid and counsel, and when he appears personally, to understand the procedure and to use a language which he can speak" (SR.4jp. 6). There is a shift here from understanding a language to being able to speak it. Cassin chose this formulation as a middle ground between no language rights in the courtroom at all and the right to use one's native tongue. While speaking includes understanding, the reverse is not true. Still, this stops short of the right to use one's native tongue in courts of law, which was what the Commu­ nists were seeking to establish. Over some objections by delegates who had not been part of the Working Group, the Second Session approved the work of the Group and sent it on to the Second Session of the Drafting Committee.81 When what is now Article 11 came up for discussion in that Second Drafting Session, Pavlov proposed that the following paragraph be added to the Geneva text: "When any person who does not know the national language is prosecuted, he shall be assured full knowledge of all the material in the case through an interpreter and shall also have the right to address the court in his native language." 52 He had failed to get this same paragraph included in the relevant article of the covenant (E/600), This time he had more success, for the Committee adopted his paragraph by 3 votes for, 1 against, and 2 abstentions (SR.40jp. 19). Unfortunately, the paragraph was not included in the draft declaration that was formally passed on to the Third Session of the Commission. Geoffrey Wilson, the U.K. delegate, forced the delegates to face up to the fact that they should choose between the hybrid article they were constructing, which included the just adopted USSR-sponsored paragraph, and the much simpler Geneva text. By 2 votes for, 3 against, and 3 abstentions they rejected the hybrid text and passed it on as an alternative to what had come to be called the "Geneva text" of the Second Session. Pavlov tried again in the Third Session. There the basis for the discussion was the Geneva text which said that any defendant shall be entitled to a fair hearing of his case and "if he appears in person to have the procedure explained to him in a manner which he can understand and to use a language which he can speak" (95/p. 5). The U.K.- India proposal left out even these watered-down (from the Soviet point of view) language rights, as did the Chinese proposal. The French proposed a text which gave the defendant the right "to have the procedure explained to him and to state his own case in a language which he knows." 58 Afanasi Stepanenko found the U.K.-India pro­ posal unsatisfactory because it did not give the defendant qualified help and did not

Colonies, Minorities, and Women!r Rights

I 07

mention "the right to trial in one's native language." He argued that this particular omission amounted to "discrimination and [that] many countries practiced such dis­ crimination against members of minority groups" (SR.54fp. 8). Pavlov also objected to all these proposals, saying that a member of a minority group should have the right to defend himself "in his native language" (p. 9). One of the issues involved hinged on whether the delegates thought that equality before the law, about which the Declaration was very explicit, was the same thing as equality before the tribunal and in the courtroom, about which it was much less ex­ plicit. The U.K., Chinese and Indian representatives thought these concepts covered the same terrain. But Pavlov was of the opinion that "equality before the law and equality before the courts were not synonymous. He [said] he could quote many ex­ amples to show that colored and white people were in theory equal before the law but that such was certainly not the practice of the courts" (p. 9). A few moments later he added the observation that "in colonial history the principle of equality before the law had not always implied equality before the tribunals" (p. 10). The lengthy Soviet paragraph was put to the vote in parts. All the provisions were rejected, but the vote on the language paragraph (with the right to speak in one's native tongue) was the closest. It was rejected by six votes to five, with five abstentions (pll). The closeness of this vote shows that this matter of minority language rights was not simply a Communist hobbyhorse routinely voted down, but a matter of deep moral and legal principle. All this concerned our Article 10. What passed in the Third Session was the U.K.-India text with a French amendment, making for a text without any language rights: "In the determination of his rights and obligations and of any criminal charge against him, everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal" (E/800). It was adopted by 13 votes to 0, with 4 abstentions (p. 12). The second chance in the Third Session came with Article 11, which at that time said nothing about being guaranteed the means for a fair trial. A subcommittee con­ sisting of the representatives of China, France, the U.K., India and Yugoslavia was asked to take a look at the article. It proposed the following text: "Everyone is pre­ sumed innocent until proved guilty according to law (in a public trial at which he has had all guarantees necessary for his defense)" (109). The last part of the sentence was placed in parentheses and had to be voted on se parately because the members had been in disagreement about it. Wilson, the U.K. representative, and Omar Loufti, his colleague from Egypt, did not think the clause in parentheses was necessary (SR.55fp. 15). Cassin, the French delegate, disagreed and defended its inclusion on the grounds that "there had unfortunately been so many abuses under criminal law that it would be wrong not to specify that the accused had a right to the guarantees necessary for his defense. By 8 votes to 6, with 2 abstentions the Session decided to reject the phrase and so bar even the latent possibility of a language right. Mter the vote Pavlov objected and said he wanted more guarantees included in the article. Taking account of some Lebanese suggestions he formally moved that the text be changed to read that one is innocent until proven guilty "in a public trial subject to exceptions prescribed by law in the interest of public morals and national security and under conditions which ensure him in every case the guarantees neces­ sary for his defense" (p. 17). Cassin, whose phrase "necessary guarantees" Pavlov had

I 08

Chapter J

borrowed, expressed his approval and suggested some alterations in the flow of the ideas. The chairman asked the Lebanese, Soviet, and French delegates to come up with a joint text, which they did. It said: "Everyone charged with a penal offense is presumed to be innocent until proved guilty in a trial at which he will have had all the guarantees necessary for this defense. The trial shall be public" (SR.56jp. 2). It was adopted by a vote of 10 to 3, with 3 abstentions. At the stage of the Third Committee Pavlov had to decide when and where to re­ submit his language paragraph.84 It fit with what is now Article 10, which earlier in the proceedings had included some language guarantees. Or he could submit it to what became Article 11, where he just had had some success, working with Cassin, in the reinstitution of the principle that a defendant had a right to the means necessary for a good defense. The two men apparently did not discuss a common strategy, for Pav­ lov submitted it as an amendment to Article 10 (which speaks of "a fair . . . hearing"), while Salomon Grumbach, the other French delegate to the Third Committee, said he could only support it if it had been submitted to Article 11. Pavlov also made the much more obvious mistake of submitting to Article 1 0 an amendment that contained three long paragraphs to be added to the Geneva text. He should have neatly inserted "the right to address the court in one's native tongue" into the appropriate place within the existing article and leave well enough alone. Grumbach observed that "the last paragraph of that [USSR] amendment . . . introduced an extremely important idea of principle, not of implementation. It should certainly be inserted into the declaration, but would go more logically in [the Article 11] paragraph." 811 With that observation no doubt in mind, Pavlov "asked that the last paragraph of the USSR amendment be voted on separately without prejudice to its position in the declaration. That paragraph was extremely important for the protec­ tion of national minorities and the people of Non-Self-Governing Territories," he said (p. 262). He repeated this request just before the vote, but to no avail. It was rejected by 20 votes to 12, with 7 abstentions (p. 264). When Article 11 with the right of the defendant to be given "all the guarantees necessary for his defense" came up for discussion later on in the Third Committee no delegation brought out the fact that this included the right to address the court in a language one could speak, let alone the right to do so in one's native tongue. But the votes show that several delegations did think of the "necessary means" clause as including this particular right or something close to it. Those who voted to rehabili­ tate the clause in the Third Session knew that the two main sponsors of it were also supporters of a minority language right. The Soviet Union had been all along and the French had j oi ned the effort in the Third Committee. This knowledge allows us to read the right into that clause. It is a reach, but not one without license. All four items - race, colour, national origin and language -protect members of ethnic, cultural, and linguistic minority groups from being discriminated against with respect to any of the rights in the Declaration. Such minority members cannot be kept from participating in the government of their countries (Article 21); they have just as much right to food, clothing, housing and medical care (Article 25) as members of majority groups; they have the same right to work (Article 23) and cannot be barred from holding public office (Article 21(2)); they have the same right to freedom of

Colonies, Minorities, and Women' Rights

I 09

movement within and between countries (Articles 13 and 14); they also have the same right to a nationality (Article 15) and the protection that comes with that status. More specifically, the right not to be discriminated against on the basis of lan­ guage applies to "all the rights and freedoms set forth in this Declaration." This includes all the legal rights mentioned in Articles 6 through 11. The right to "free­ dom of peaceful assembly and association" (Article 20) may not be abrogated because those who claim this right happen to speak a language that differs from the majority or national language. And no one may be denied the right to "a standard of living adequate for the health and well-being of himself and of his family" (Article 25) on account of what language he or she most naturally speaks. Nor can a person be barred from p ar ticipation in government on these same grounds (Article 21). 3 . 4 Political Opinion, Property, and Birth Political or Other Opinion

Unfortunately, preachers of religious, political, or moral ideologies seldom practice their preaching with the purity they recommend to their hearers. In regard to their dogma of nondiscrimination the Communists were no exception to this maxim. A glaring inconsistency exists in the Communist position when it comes to the freedom of holding certain political opinions. The item of political opinion has an in-and-then-out kind of history. Humphrey included the item in his H4 5 list of "race, sex, language, religion, or political creed." It was the only item that he added to the Charter list. The Indian delegation had proposed that the Declaration include an article stating that "every human being has the right of equality, without distinction of race, sex, language, religion, nationality or political belief." 56 This proposal was somewhat unusual; at that time most consti­ tutions did not have "political belief" in their nondiscrimination lists, though China, Guatemala, and Panama did.s7 Also, the first article of the constitution of the Ameri­ can Federation of Labor (AFL) stated: ·�n economic or political discrimination and punishment for differences of political opinion . . . are to be eliminated. The threat of being sent to concentration or labor camps as punishment for difference of opin­ ion with any government authority or dominant politi c al party must be completely removed." 58 The AFL director was an acquaintance of Humphrey's and the organiza­ tion had placed its views before the Commission. One or several of these facts may explain Humphrey's adding the item "political creed" to the Charter lis t . In the rewrites Cassin submitted to the First Drafting Session he left the equiva­ lent of the English word "political" out of the French text and used the phrase "politi­ cal belief" in the English text.59 This left the matter of whether to include the Hum­ phrey item in limbo. Chang, the Chinese representative, thought the whole article should go to the Preamble, while Eleanor Roosevelt, the chair and U. S. representative, thought that just the word "belief" would do, as " it would cover all types [of belief] and not be limited to the one specified" (SR.12/p. 5). Apparently, Koretsky, the dele­ gate from the USSR, asked her what she meant, because the minutes record Roosevelt answering "that elimination of the word 'political' broadened the article" (p. 5).

II0

Chapter I

Neither of these two delegates seems to have realized the significance of their exchange, for in this one word "political" were focused all the Western objections to Communist discriminatory practices on the basis of political beliefs and party affilia­ tion. Communist constitutions do not usually include "political opinion" in their list of nondiscrimination items. The 1940's constitution of the Soviet Union gave citizens the right to vote "irrespective of race, nationality, religion, educational and residen­ tial qualifications, social origin, property status or past activities," but not irrespective of political opinion. Other communist nations had similar exclusionary rules.4o Malik, the representative from Lebanon, did understand the significance of the exchange between Roosevelt and Koretsky. He wanted the word "political" retained, he said, because "politics was one of the fundamental activities of man in which dis­ crimination existed. He felt that the Commission on Human Rights should decide whether or not discrimination was allowable on the basis of political belief. . . . [And] there was no harm in stating that man is free to hold political convictions without dan­ ger of discrimination and persecution" (SR.l2/p. 12). No vote was taken on the matter. It was agreed that the article should be referred to the Sub-Commission on the Pre­ vention of Discrimination and the Protection of Minorities. Roosevelt explained that her government had agreed "to the words of the Charter being retained," which did not include the item "political opinion." By that fiat only the Charter list was formally passed on to the Sub-Commission with a request for advice (p. 6). As he had in the case of "colour," Masani, the Indian expert, took the initiative in getting the "political opinion" item restored. Again, the immediate problem was that some of the experts (who did not speak for their countries in a formal capacity) were hesitant about adding any items to the Charter list of "race, sex, language, or reli­ gion." In his opening speech Masani noted that "political minorities were becoming increasingly important. It was no longer a case of oppression by a king or a group of aristocrats," he said, "but of an all-powerful State repressing dissident groups of thought" (Sub.2/SR.3/p. 4). He noted the absence of "political opinion" on the list that had come down from the Drafting Committee and suggested that the item be "added at the end of the article" (p. 2). He wanted "to extend to political opinions the protection granted by the article to religious beliefs. The minorities that would need protection in the future would be more in the nature of political minorities," he felt, "than the traditional religious minorities which were tending to disappear" (p. 6). This proposal received the immediate support of Monroe, the British expert on Sub-Commission, from Roy, the Haitian expert, and from Spanien, the French ex­ the pert, who thought that in this matter "there was a gap in the Charter that ought to be filled" (p. 6). However, he thought it was better to omit the word "political" and make

the article prohibit discrimination on the basis of all sorts of opinions and not just the political ones singled out by the Masani proposal. McNamara, the Australian expert, "urged that the freedoms not expressly guaranteed were always in danger of being de­ nied" and he regarded Masani's amendment as "essential." In light of the fact that "in some countries discrimination was based on political opinion, [i]t was important that [it] should not be denied," he said (p. 5). Seeking to steer between the Indian addi­ tion of "political opinion" and the French one of just "opinion," he suggested that the phrase "political or other opinion" be added to the list. This text, he argued, "while

Colonies, Minorities, and Women� Rights

II I

emphasizing the importance of political opinion . . . could apply to any other opin­ ion" as well (p. 7). Experts opposed to McNamara's suggestion included Daniels of the U.S., the Sub­ Committee's chair Ekstrand of Sweden, Shafaq of Iran, and Nisot of Belgium, all of whom objected to making changes in the Charter list of "race, sex, language and reli­ gion." However, with the exception of Nisot, they were not strongly opposed. Daniels, for instance, felt that the same format should be used in all cases. They "should either accept the terminology of the Charter" and add notes, as they had done in the case of "colour," or both "colour" and "political opinion" should formally be added to the list (p. 7). Wu, the Chinese expert, thought that "political opinion itself was one of the fundamental freedoms and rights, not a qualification of those entitled to them." This view had at first placed him in opposition to the proposal, but upon reflection he decided that if "political opinion" could be made to refer to party membership, the addition would not be objectionable (p. 7). "Par ty affiliation" was mentioned in the Chinese constitution as one characteristic that "shall not" undercut the equality before the law of Chinese citizens, which no doubt helped Wu change his mind.41 After Masani accepted the McNamara addition of "or other" to his own "political opinion" amendment, both additions were approved and an other step beyond the Charter list had been taken (p. 11). Given the fact that the entire Communist system was based on a merger of the party and the state apparatus and allowed no room for multi-party elections, it comes as no surprise that Communist delegates at various stages of the drafting pro cess sought to undo the "damage" and get the item deleted. The first move was made in the Sub-Commission itself, right after the addition had been made. Borisov, the expert from the USSR, came with a proposal that consisted of two paragraphs. Combining phrases from two articles of the Soviet Constitution, Borisov proposed this wording: '�ll people are equ al before the law and shall enjoy equal rights in the economic, cul­ tural, social, and political life, irrespective of their race, sex, language, religion, prop­ erty status, national or social origin." 4� The main difference between this proposal and what had already been accepted was the deletion of the contested item "political or other opinion" and the addition of the new items "property status, national or social origin." What matters to us here is the deletion that would take place if this proposal was accepted. Borisov insisted that his proposal was "intended to replace Article 6 and could therefore not be regarded as an amendment," to which the chairman, Ekstrand, re­ sponded that "all propositions were amendments" (Sub.2/SR.6Jp. 9). The point was that in an amendment the earlier list was not necessarily replaced , but only comple­ mented by that part of the Borisov list that was new. When Borisov still insisted on the all or nothing approach of his substitute proposal, the Sub-Commission voted down his list by 7 votes to 1, with 3 abstentions and accepted an other list proposed by McNa­ mara from Australia and Wu from China. That McNamara-Wu proposal had the new items plus all of the old ones: "Everyone is entitled to [all] the rights and freedoms set forth in this Declaration, without distinction of any kind as to [such as] race, sex, lan­ guage, religion, property status, national or social origin, political or other opinion."43 The phrase "political or other opinion" was adopted by 10 votes, with 1 abstention. The

liZ

Chapter J

other items having been adopted previously, the remaining phrase "property status, national or social origin" was adopted by 6 votes, with 5 abstentions (SR.6jp. 14). This new and greatly expanded list was sent to the Second Session of the Com­ mission on Human Rights. The Soviet delegation to the Second Session repeated the attempt to get the Borisov's list substituted for what had been accepted. Since now the only real difference was that the already adopted list included the item "politi­ cal or other opinion" and the proposed substitute did not, it is clear that the goal of the Soviet amendment was to get the item "political opinion" removed from the list. The attempt failed again. Both the Belgian and British delegates objected to the substitute list. To Dehousse, the Belgian representative, the Soviet amendment was "unacceptable" because "there was no mention [in it] of 'political opinion' (SR.35jp. 3). His British colleague, Lord Dukeston, was even more blunt. He said he would vote against the Soviet amendment "because it did not protect the individual against dis­ crimination on the grounds of his political opinion . . . [and] a one-party Government would not be obliged to take measures to safeguard the freedom of those professing a different political opinion from its own" (p. 3). This observation underscores the im­ portimce of the item on the nondiscrimination list. In the Chapter on the influence of the Holocaust we saw that in the adoption of Article 21, which states the right of everyone to participate in government, the Com­ mission did not stipulate that free elections had to be part of a multi-party system. Article 21 of the Declaration does not explicitly demand that the will of the people be expressed through the modern machinery of multi-party political systems. Lord Dukeston's comment reminds us that if we combine the rights of Articles 2 and 21 of the Declaration, then we do get a demand for that kind of multi-party system. People cannot be denied the right to participate in government and its machinery on the basis of their "political or other opinion." Since Communist ideology does not rec­ ognize the validity of political ideas other than those accepted by the one party that supposedly represents all the people, there is no room in such a system for legitimate political minorities. The drafters intended to condemn these kinds of arrangements, which is why the Communists never succeeded in getting the disputed item to be struck from the nondiscrimination list. Since the Communist delegations could not or did not want to admit that their nations grossly discriminated against people on the basis of their political opinion, they invariably gave the threat of renewed Nazism and fascism as the rationale for their position. According to Bogomolov, "it was logical for the terms 'political or other opinion' to be omitted from the Soviet proposal" because "there were political opin­ ions which tolerated not only the advocacy of racial or national hatred, but also the actions arising therefrom" (p. 4). Since Nazis and fascist groups might claim equal participation in public life on the basis of an item like freedom of political opinion, Bogomolov thought it wiser to be on the safe side and remove the item. When Santa Cruz, the Chilean delegate, asked whether this meant that an indi­ vidual could be persecuted for political opinions, the Russian delegate said that that was not the point, the issue being "whether propaganda and actions based on national and racial hatred" should be permitted. The Soviet delegate had the Nazi ideology in mind and it was his country's strong wish not to grant political freedom to that group.

Colonies, Minorities, and Women' Rights

Ill

The drafters did not accept this particular Soviet rationale and rejected the proposed substitute list 10 to 4 with 3 abstentions (p. 5). Property, Birth, or Other Status

The phrase "property, birth, or other status" is what was left from the Borisov pro­ posal after "national or social origin" had been adopted and the Third Committee later inserted "birth." In the Sub-Commission's discussion of the longer list "property status, or national or social origin," most of the attention went to the item of "national or social ori­ gin," and of these two the word "national" was the most important. Furthermore, contrary to what one might expect, almost none of the experts commented on the phrase "property status."44 How could property ownership or other economic factors possibly be related to the question of whether or not someone has a certain inherent human right? The answer gains in importance once we realize that the prohibition of discrimination on the basis of "property status" is attached to everyone's entitlement to "all the rights and freedoms set forth in this Declaration." Take, for instance, the right to an education, which is the subject of Article 26. The present prohibition in effect says that everyone has an equal right to an education and that no distinctions based on "property status" are to be made in the implementa­ tion of this right. In some countries of the world the children of the very poor receive no education at all and in many countries, including the United States, the quality of a child's elementary and secondary education is often directly related to the "prop­ erty status" of his or her parents or guardians.45 All such differences are in violation of the Declaration. The Belgian expert on the Sub-Commission, Nisot, saw the radical character of this item on the list and "pointed out that there might be a political con­ notation in the words 'property status' since in some countries income was one of the factors considered in determining the right to vote" (Sub.2/SR.5/p. 9). In the Second Session of the Commission and in the Second Session of the Draft­ ing Committee no questions were raised about the property status item. In the Third Session of the Commission this item also slipped by almost unnoticed, except that Klekovkin, the representative of the UKSSR, "proposed the insertion of the concept of soslovie" (the apparent meaning of which is class or social status) after the words "property status." "The distinction," he said, "would have validity in a number of coun­ tries." A discussion of this concept took place, but the Commission could not find an exact English equivalent. Both Wilson, the U.K. representative, and Roosevelt, the U.S. representative and chair, thought it better to delete the word "property," "leaving the word 'status,' which would then be all-inclusive" (SR.52jp. 4). This fits with the ob­ jections to the word "class" made by the experts from these countries had made in the Sub-Commission discussions. Pavlov, the delegate from the USSR, saw the danger of Klekovkin's proposal, tampering as it did with the gains made by Borisov in the Sub-Commission. Pavlov "thought that the word 'property' should remain; it was most important that rich and poor should have the same rights. The Ukrainian amendment was directed against feudal class privileges, which were generally determined by birth rather than wealth,"

1 14

Chapter 3

he said (p. 5). The danger to the word "propertyn was avoided when Klekovkin "ac­ cepted the suggestion of Mr. Chang (China) to insert the words 'or other' between the words 'property' and 'status,' which would meet the point he wished to make.n Apparently between the Third Session and the meetings of the Third Commit­ tee, Pavlov changed his mind. While he had not come to the rescue of the Ukrainian amendment discussed above, he now formally proposed to the Third Committee that the word "class" be added after the words "property or other status" (A/C.3f256). He explained to his colleagues that "the USSR amendment aimed at the abolition of dif­ ferences based on social conditions as well as the privileges enjoyed by certain groups in the economic and legal fields. On the eve of the Russian revolution the situation in Russia was similar to that in France before its revolution; there were certain privileged classes, such as great landowners, the clergy, merchants, and others. One of the first measures taken during the Russian revolution was to suppress those privileges and prevent their revival" (p. 134). Cassin, the French representative was the first to respond. He said he was "pre­ pared to support the USSR amendment [to add 'class'] as far as its substance was con­ cerned, although it could have been covered by the words 'property or other status' " (p. 134). Roosevelt also recollected that the accommodation of views like Pavlov's was one of the reasons the Commission had added the words "or other" to the original phrase "property status." Upon the suggestion of Cassin a small drafting committee was set up consisting of the representatives of France, the United States and the USSR. This committee returned with the suggestion that the Russian version of the list in Article 2 should contain the word soslovie, the French one the word naissance and the English one the word birth. The group added the note that "the literal translation of the word 'soslovie' would be 'etat' in French and 'estate' in English, but the Group noted that those words, as currently used, no longer had their former meaning" (p. 134). This proposal meant that Pavlov agreed to change his amendment from adding "class" to adding "birth" to the English text of the Declaration. He was able to make this shift because the Informal Drafting Group "had agreed that the Russian word 'sos­ lovie' referred to a legally-sanctioned inequality such as had existed in feudal Europe when different groups of people had, by reason of their birth, different rights and privileges. Although such inequalities no longer existed in most countries, there were still some remnants of that social structure left; the fight against those remnants should be continued by a definite statement in the draft declaration" (p. 138). In other words, the meaning of the item "birth" on the list of Article 2 is to prohibit discrimination on the basis of inherited legal, social, and economic differences. If we once again recall that this prohibition is attached to "all the rights and freedoms set forth in this Decla­ ration," then we can see that this item too calls for a far-reaching egalitarianism. One wonders how many of the drafters understood and accepted this. The answer we get from the discussion that followed and from my exposition of the social and economic . rights in Chapters Five and Six is that almost all of them did. It turns out that many delegates to the Third Committee might even have accepted the word "class" itself. Christopher Mayhew, the delegate from the U.K., thought the word "birth" ac ceptable, "although he would have preferred a reference to 'class' in the sense of inherited privileges for the sons of noblemen, capitalists, party leaders, and so on. The government of the United Kingdom," he added, "was working on just such a classless ­

Colonies, Minorities, and Women� Rights

115

society" (p. 134). Count Carton de Wiart, the Belgian representative, said that after hearing the discussion, "his delegation found the Drafting Group's suggestion was more comprehensible, although it still preferred the original USSR proposal" of the word "class." The Mexican representative, De Alba, also thought the small committee had yielded too quickly to the linguistic difficulties. He understood that Pavlov "had wanted to say that there should be no 'inherited privileges,' but even that expression was not sufficiently clear." He felt that the Drafting Group should have stuck with the word "class" for the English text, for that word, he said, "had been in use a long time before the appearance of the Communist Manifesto, as was shown in the writings of Thomas Jefferson" (p. 138). In any case, the proposal had now been changed to "birth" and several delegates made the point that this word created a possible conflict with Article 1 of the Decla­ ration, which says that "all human beings are born free and equal." Thus, the Cuban delegate, Perez Cisneros, "agreed fully with the proposed addition, but questioned the appropriateness of the word itself." The Declaration should not in Article 2 give the impression that a "distinction could be made between human beings for reasons of birth" and state in Article 1 that we are all born in a status of equality.(137). For that reason he suggested the phrase "social conditions" or "social status." Watt, the Aus­ tralian delegate, agreed with the Cuban representative that it "was dangerous to insert the word "birth" into Article Two." It would lead to a confusion as to whether the Dec­ laration was serious about people being born "free and equal in dignity and rights." He therefore preferred the phrase "other status" that was already in the article (p. 138). I mention these details because the insertion of the word "birth" into Article 2 shows that the drafters understood and were serious about the inherent character of human rights. That is what the word "born" in Article 1 means and, as I explain in Chapter Eight, it reinforces the occurrence of "inherent" and "inalienable" in the first recital of the Preamble. Article 2 supports this notion of inherence because the occur­ rence of the word "birth" on the nondiscrimination list prohibits social and economic factors, whether or not inherited, from being used to undercut that initial moral equality we all have at birth. An interesting detail is that at one point Mohammed Habib, the representative from India, said he "favored the use of the word 'caste' rather than 'birth' as the latter was already implied in the Article" (p. 138). This observation led several dele­ gates to state their objections to both "caste" and "class" as not "accurate" (Uruguay), as categories that "human beings were trying to outgrow" (U.S.), or as too "specific" (Philippines). Another Indian delegate, A. Appadorai, responded that "his delegation had only proposed the word 'caste' because it objected to the word 'birth.' The words 'other status' and 'social origin' were sufficiently broad to cover the whole field." 46 Mis­ givings like these probably led to the narrow vote with which the insertion of the word "birth" into the English text was adopted- 19 votes to 16, with 7 abstentions.47 After it had done most of the work on the Declaration, the Third Committee set up a subcommittee "to examine the totality of the declaration . . . solely from the standpoint of arrangement, consistency, uniformity and style and to submit propos­ als thereon to the Third Committee" (p. 120). Eleven countries were represented on the Style Committee, of which Cassin, the French representative, was the chair. This subcommittee turned in a report in which the item "birth" had been moved from the

116

Chapter J

end of the list ("such as race, color, sex, language, religion, political or other opinion, property or other status, birth, or national or social origin") to the middle of the list ("such as race, color, sex, religion, birth, national or social origin, political or other opinion, property or other status"), As soon as he had the opportunity, Alexander Bogomolov of the USSR "criticized the alterations made by the Sub-Committee" because, as he saw it, they "deprived the word "birth" of the sense which it was intended to have" (p. 851). He was doubly up­ set: he really had wanted the word "estate," but had settled for the term "birth" and now the meaning of that term had been undercut by its new placement in the list. He wanted to go back to the list adopted by the Third Committee. Cassin did "not agree that the change in the position of the word 'birth' had robbed it of its meaning." Chang, the Chinese representative, and Perez Cisneros, the Cuban representative, both of whom had served on the subcommittee, also favored the new text "for reasons of form" (p. 852). Bogomolov said he did not understand the French position. "The regime of 'es­ tates' had, it was true, disappeared in Russia as it had in France, but the historical term did nevertheless remain. It should not be forgotten that the declaration of human rights should also apply to countries which had not yet evolved as fully as had France and the USSR, and that there were still backward countries, in some of which castes and privileges, attached to 'estates' still existed" (p. 852). That sense of "birth" was gutted by having it appear in the earlier context of race, sex, language and religion, and not in the context or vicinity of the later social and economic items. Karim Azkoul of Lebanon agreed with Bogomolov's argument and as a member of the Style Committee he had "voted against the new text because the alteration made considerably affected the sense of the paragraph" (p. 852). He proposed the list we now have: "without distinction of any kind such as, race, sex, language, religion, political or other opinion, national or social origin, property, birth or [any] other status." This text was adopted unanimously.48 The original context of the item "birth" having been restored, its original mean­ ing of (mostly inherited) social and economic privileges was also restored. Cassin had said that placed after the word "religion" the word "birth" "could not lead to ambi­ guities or acquire biological implications" (p. 851). Perhaps not, but the meaning of the term in that earlier spot is not nearly as obvious as it is in its restored place, right after the items "social origin" and "property" and just before "any other status." While in Article 1 the word "born" had a metaphysical and moral meaning, in Article 2 the word "birth" carries a social and economic meaning, which is why there is no conflict betwe en the birth in Article 1 and the birth in Article 2 of the Declaration. On the contrary, the occurrence in Article 2 reinforces the one in Article 1. 3 . 5 The Women� Lobby and Women� Rights

In the opening paragraph of their Charter, the peoples of the United Nations say that they are determined to "reaffirm [their] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women." And when the Charter talks about the organs that are to implement the goals of the UN it expressly states that "the United Nations shall place no restrictions on the eligibility

Colonies, Minorities, and Women� Rights

117

of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs." 49 In the Charter, discrimination on the basis of sex is singled out from among the list of possible items and specifically prohibited. This is why Denmark had no trouble in the First General Assembly of 1946 to have a resolution passed which asked member states to adopt "measures necessary to fulfill the purposes and aims of the Charter by granting women the same political rights as men" (E/615/p. 2). It is also why the Economic and Social Council appointed a Sub-Commission on the Status of Women to "submit proposals recommendations and reports to the Commission of Human Rights." 60 However, this line of authority did not suit the Sub-Commission. Humphrey tells us in his memoirs that at the second session of the ECOSOC the Sub-Commission's chairman, Bodil Begtrup of Denmark said women did not want to be dependent "on the pace of an other commission." The Council "ac­ ceded to her request and the organic link between the two bodies was severed" when Begtrup's Commission was made to report directly to the ECOSOC instead of via the Human Rights Commission that was chaired by Eleanor Roosevelt.5 1 When the Commission on Human Rights came to discuss its tasks, Roosevelt im­ mediately pointed out that " there might be some duplication" between the Commis­ sion's mandated interest in the "status of women" and the newly created, independent commission by that name. She pointed out that the Commission, if it so chose, could have its terms of reference changed (SR.ljp. 6). Valentin Tepliakov, the delegate from the USSR, said that "when it came to a discussion on the International Bill of Rights, the commission was entitled to deal with all questions within the field of human rights ," and he opposed striking out the words "status of women" from the scope of the Commission's interest. He was supported in this by Carlos Romulo of the Philip­ pines and Metha of India. The Commission on Human Rights, with Eleanor Roosevelt as chair, did not ac­ tively seek to stay in touch with the Commission on the Status of Women, of which Begtrup from Denmark was the first chairperson. The two commissions threatened to drift apart. As a result, the Economic and Social Council, in a special resolution and upon the urging of Begtrup's Commission, had to request the Human Rights Commission "to invite the officers of the Commission on the Status of Women to be present and participate without voting when the rights of women were being con­ sidered." 62 This was done. It seems that the lack of sexism in the Universal Declaration is primarily due to the aggressive lobbying of Begtrup and the steady pressure of the Soviet delegation. Of Mrs. Begtrup's commission, Humphey reports that "more perhaps than any other United Nations body the delegates to the Commission on the Status of Women were personally committed to its objectives . . . . [They] acted as a kind of lobby for the women of the world." Adds Humphrey: "There was no more independent body in the UN Many governments had appointed . . . as their representatives women who were militants in their own countries ." Humphrey also notes that "the Soviet Union was proud of its record in the matter of the equality of men and women and . . . often attacked the Western countries for their 'backwardness.' " 55 When the Third Session of the Commission reproduced the UN Charter 's open­ ing affirmation of faith in the fourth recital of the Declaration, it left out the refer� .

.

.

118

ChRpter I

ence to gender equality. At the Third Committee stage Lakshimi Menon, the delegate from India, called attention to the fact that "the fourth recit al which reproduced the language of the preamble to the Charter did not re produce the phrase "the equal r ights of men and women" contained in that passage of the Charter" (p. 764). Such an omission, she said would seem de l iberate and hence invite sex-based discrimina­ tion. Minerva Bernardino, the delegate from the Dominican Republic, also wanted to correct the omission. Her de legation "was aware that in certain countries the term 'everyone' did not necessarily mean every individual, regardless of sex. Certain coun­ tries did in fact recognize certain rights for 'everyone,' but experience had shown that women did not enjoy them, as, for instance, voting rights" (p. 771). The addition was approved with a vote of 32 to 2, with 3 abstentions. The United States and China voted against it ( p . 788). The present repetition in almost every article of the unqualified words "all," "everyone" and "no one" gives the reader a clear message that the Declaration is not a sexist document.G4 In this respect it is very different from its Enlightenment prede­ cessors. In the G eneral Assembly debate Begtrup recalled "that the Declaration of the Rights of Man and of Citizen . . . which had so solemnly laid down the fundamental freedoms, made no mention of the rights of women and did not even imply them. The world had evolved since then," she said (p. 892). In the Second Session's Work­ ing Group she had made the suggestion that to the Declaration's Preamble be added a phrase or note stating that "when a word indicating the masculine sex is used in the following Bill of Rights, the provision is to be considered as applying without discrimi­ nation to women" (SR.2jp. 2). Her point was not voted upon, nor discussed. This left her. Commission no choice but to seek to protect the status of women in the Declara­ tion article by article, beginning with Article 1. Most of the early versions of Article 1 starte d out with the phrase "all men," and from the start various delegates expressed dissatisfaction with that phrase.1G In the First Session.of the Drafting Comm ittee, Koretsky, the delegate from the USSR, argued against the exclusivity of starting any article with "all men." He obj ected to the under­ st and ing of some members that all persons were included in this phrase, for "this imp l ied an h istor ical reflection on the mastery of men over women" and he hop ed the p hrase could "be modified in some way to make it clear that all human b ei n gs were included" ( SR. l 3jp. 6). Ral ph Harry, the Australian delegate, thought "the probl em insoluble" and pointed out that "in the Charter itself reference was made to "ma n­ kind" and not to "mankind and womankind " (p. 6). This prompted Roosevelt, the U.S. del e gate, to add that "it had become customary to say 'mankind' and mean both men and women without differentiation" (p. 7). The disagreement was carried over into the Second Session of the Commission. There to o, attempts to change the text failed. In a meeting of that S e ss ion's Work­ ing Group Begtrup sought to have the term "human beings " substituted for the term "men." Roosevelt told her tha t that "was not advisable due to a question of translation affecting the French text" (AC.2/SR. 2jp. 4). After that failure, Metha, the delega te from India , raised the issue in the regul ar session of the Commission, saying that "she did not like the wording of 'all men' or 'should act . . . like brothers.' " Such phrases, she said "mi gh t be interpreted to exclude women, and were out of date" (SR. 34jp. 4). Roosevelt again made the point that " th e word "men" used in this sense was gene r-

Colonies, Minorities, and Women� Rights

119

ally accepted to include all human beings." Mter the phrase "all men" was adopted with a vote of I2 to 0, with 5 abstentions, Lord Dukeston, the British representative, suggested that the Declaration contain a note stating that in the document the word "men" referred to "all human beings" (p. 5). Metha did not object to the U.K. sug­ gestion, but still preferred to see a change to "human beings" or "persons," since ·�rticle I was the only place in the Declaration where the expression 'men' appeared." The U.K. suggestion about a note was adopted by I 2 votes to 1, with 3 abstentions. In its comment on Article I, the Dutch government took exception to that note, thinking it "superfluous to state explicitly that the word "men" implies both men and women" (85/p. I4). Nothing was changed until the Third Session of the Commission. By this time the Commission had via the Secretary-General received a draft of Article I from the Commission on the Status of Women (E/CN.4/8I), which proposed that "all people" be substituted for "all men" and "in the spirit of brotherhood" for "like brothers." Amilia C. de Castillo Ledou, vice-chairman of the Commission on the Status of Women, said that while "her Commission understood that the term 'all men' had a general sense, there was a certain ambiguity in it and it would be better to use the more precise term, which moreover figured in the Charter" (SR.50jp. 9). Other suggestions before the Commission were a joined U.K.-India proposal to use the phrase "all people, men and women," and a French proposal that started the article with the phrase "all members of the human family." 56 Pavlov, the representative of the USSR, pointed out that the phrase "all people, men and women" would be difficult to translate into Russian "as in that language women were automatically included in the notion of 'people' " (SR.50jp. 13). The same redundancy affects the U.K.-India text, which the United States sup­ ported because it expressed "the principle of equality for men and women" and showed the conviction that "discrimination against women had no place in the laws of any state" (p. 9). Ronald Lebeau, the Belgian delegate, pointed to the absurdity of tous les hommes, hommes et femmes and proposed the compromise phrase of "all human beings" (p. 11). Hansa Metha wanted to hear what the Commission on the Status of Women thought was the best text. Ledon responded that the terminology suggested by Lebeau best suited her Commission. But when the vote came, the U.K.-India phrase "all people, men and women," as well as the phrase "in the spirit of brotherhood" were adopted (p. I4). On behalf of her Commission, Ledou thanked "the Commission [on Human Rights] for the amendment it had adopted to Article I, which although slightly different from the one proposed by the Commission on the Status of Women was in conformity with its wishes" (p. 17). At this point we are faced with a puzzle about the transmission of the text from the Third Session to the Third Committee. As I just showed, the Commission on Human Rights, in its Third Session, had approved the Uk-India phrase "all people, men and women." Yet, the Secretariat's draft of the report for that Third Session begins Article 1 with the phrase "all human beings" (148/Add.I). This draft was approved for transmission to the ECOSOC without anyone pointing out the discrepancy between what the Commission had decided and this report (SR.81). As a result of this error all subsequen t drafts of the Declaration contain the compromise phrase "all human beings," first suggested by Lebeau, the Belgian delegate. In neither the Third Commit­ tee nor General Assembly debate s was the issue of the opening wording of Article 1

t20

Chapter J

ever raised again. Both bodies approved the present phrase, which, though not ex­ plicit about the equality of men and women, frees Article 1 of all sexist implications. The rest of the Declaration is equally free of sexist language, except for the phrase "himself and his family" which occurs in Articles 23 and 25 (see 5.5 and 6.1). If women are to have human rights in their own persons and as the individuals that they are, they must not have them only as homemakers and mothers. Yet the phrase "himself and his family" in these Articles 23 and 25 could suggest that reading, and the women's lobby missed these deletions in their campaign. The phrase suggests that there is one family wage and that it is earned by the man. It hints at a division of labor between the sexes which contemporary feminists rightly reject. Historically, the lan­ guage of "a family wage" is very much part of a sexist way of thinking. "By the end of the nineteenth century," Eli Zaretsky tells us, "the politics of socialists, feminists, and trade unionists had converged on the same demand for a 'living' or 'family' wage for the working class family, i.e. a single male wage large enough to support a family." n The women's lobby never sought to have the word "his" in these two articles changed to some more neutral, nonsexist terminology, one just as suited to express the work­ related and social security points being made. Perhaps we should not be surprised by this oversight. The earliest Humphrey draft, which was gleaned from the constitutions of the member states, stated that "Everyone has the right to such public help as may be necessary to make it possible for him to support his family" (AC.l/11/p. 45 ). The constitution of Iceland, for instance, stated that "anyone who is unable to support himself or his family . is entitled to re­ ceive" public funds (AC.ljAdd.ljp. 344). The International Federation of Christian Trade Unions submitted a draft that spoke of a person's right to work under condi­ tions such "that his labor enables him to support himself and hisfamily" (AC.1/11/p. 45). And in one of his early drafts Professor Cassin wrote that human labor "shall give a decent standard of living to the worker and his family" (AC.ljW.2/Rev.l). Articles 23 and 25 reflect this language and the women's lobby let it stand. The cleaning up Article 1 and not this oversight involving a worker and "his family" represents the real attitude of the drafters and they took the Charter mandate about the equality of the sexes in the enjoyment of all human rights with the utmost seriousness. The following discussion centers on the equal marriage rights in Article 16, voting rights in Article 21, and the right to equal pay for equal work in Article 23. In our discussion of legal rights in the Declaration we saw that Article 6, about equality before the law, and Article 16, about marriage and the family, initially were combined. For example, one of the early Cassin drafts read: "Everyone has the right to a legal personality. Everyone has the righ t to contract marriage in accordance with the laws of the state" (AC.ljW.2/Rev.1). Concerning equality before the law, the Soviet delegation twice raised the issue of discrimination against women. In the Second Ses­ sion of the Drafting Committee, Pavlov wanted to know what this article meant in light of the fact that "in the State of Georgia of the United States, a married woman had no legal existence apart from her husband's." Roosevelt answered that in her country the phrase "fundamental civil rights" -which at that time was used in discussing the article - "varied from State to State" (SR.37jp. 7). In the Third Session of the Commission, there even was an attempt to drop this article on the right to a legal personality entirely. The British, Indian and American •

•

Colonies, Minorities, and Women� Rights

121

delegations felt that the general article on nondiscrimination was sufficient and that there was therefore no need to enter into the murky waters of what it means to be a "person before the law." Pavlov joined his French colleague in wanting to retain the idea of a ·�uridi cal personality." He pointed out that apart from attempts against whole groups, such as those against the jews in Germany, account must be taken of the fact that some civil legislation still contained restric­ tive provisions regarding juridical personality of individuals. Thus, in certain cases, a wife had no juridical personality independent from that of her husband. It was the Commission's duty to combat all discrimination, including discrimination based on sex, which was still prevalent in several countries and he did not see why [the Commission] should reject an article that could not fail to be of value from that point of view. (SR.58fp. 4)

The article was retained by 12 votes, with 4 abstentions. In the meantime, the Drafting Committee had referred the questions about mar­ riage and the family to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. The Commission had felt that any suggestions from the Commission on the Status of Women should be routed through that Sub-Commission. As a result the Sub-Commission sought to consult with the Commission on the Status of Women. The delay this routing through the Sub-Commission caused annoyed Beg­ trup , chair of the Commission on the Status of Women, "in view of the conclusions recorded in the last report of the Commission." That report (E/281/Rev.l) had been submitted almost a year earlier. She told the Working Group of the Second Session that her report had advocated full equality of civil rights "irrespective of marriage , race , language, or religion" (SR.5jp. 8). It had also said that civil marriage should involve freedom of choice, the dignity of the wife, monogamy, the equal right to the dissolution of marriage, the equal right to guardianship, the right to keep one's nationality, the right to make contracts, and the right to own property. And it went on to make some progressive social recommendations such as leaves with pay for preg­ nant women and equal access to an education for women (E/281/Rev.ljp. 12). For its rationale the Commission on the Status of Women had referred to the United Nation's Charter, where "the equal rights of men and women" are expressly stated as a goal of the organization. Begtrup could not see why the Commission on Human Rights was backing away from tackling the article on women and the family. Perhaps the delegates sensed the upcoming fight about divorce; on that issue they were deeply divided. In the Working Group of the Second Session, the Byelorussian delegation pro­ posed the idea that "marriage and the family shall be protected by the state and regu­ lated by law . . . on the basis of equal rights for men and women" (AC.2/SR.6jp. 2). At first no mention of divorce was made, but then Roosevelt, on behalf of the United States delegation, proposed that "women and men shall have the same freedom to marry and to choice of marriage partner, and the same access to remedies for breach of marriage " (p. 2). Ironically, this is the first mention of the possibility of divorce by a delegation which later was to back away from inclusion of the idea. Roman de Romer, who represented the International Union of Catholic Women Leagues, preferred "a text affirming equality as regards marriage without sp ecifying whether it was a case of contracting marriage or dissolving it" (p. 3). She was immediately and "warmly sup-

I ZZ

Chapter I

ported" by August Van Istendael, the representative of the International Federation of Christian Trade Unions. At this point in the deliberations neither Evdokia Uralova, the Rapporteur of the Commission on the Status of Women, nor Bogomolov, the Soviet representative, brought up the matter of divorce. The latter felt that "the question of marriage should be examined from the angle of the protection which the State must give the home, and the main emphasis should be placed on the protection of children" (p. 4). M. Amado, the Panamanian representative, said that his delegation could not accept most propos­ als since "some States were bound by laws based on Concordats with the church and had, in respect of religious marriage and divorce, obligations which would not permit them to accept the proposed texts" (p. 3). He must have been reacting to the United States proposal, which spoke of the breach of marriage. The Working Group voted to adopt the reading "that men and women shall have the same freedom to contract mar­ riage in accordance with the law." �8 The question of divorce had been sidestepped. While the Second Session of the Commission on Human Rights had before it the report of the First Session of the Commission On the Status of Women, it had not yet received a text for Article 1. Such a text was proposed by the Second Session of the Commission on the Status of Women, which met in january 1948. It read: "Men and women shall have equal rights to contract or dissolve marriage in accordance with law" (E/CN.4jp. 281). This text came up for consideration in the Second Session of the Drafting Committee and it brought the disagreements about divorce rights in the open. Dropping the earlier reference to divorce, Roosevelt, acting for the United States, now proposed a much more benign version: "Men and women shall have the same rights to contract marriage in accordance with law" (SR.38jp. 12). Van Istendael, the representative of the International Federation of Christian Trade Unions, had a clear preference. "He drew the Committee's attention to the controversy which the text proposed by the Commission on the Status of Women might raise. The disso­ lution of marriage was unacceptable to millions of Christians and the text proposed was in contradiction to that belief" (p. 13). He therefore w�nted the equal rights of men and women affirmed without explicit mention of the matter of divorce. This idea carried the vote. The text of the Commission on the Status of Women was voted down (by 3 votes to 0 with 2 abstentions), and (by 5 votes to 1 with 1 abstention) this United States text was adopted: "Men and women shall have equal rights as to marriage in accordance with law" (p. 13). At the beginning of the Third Session of the Commission, Ledon, vice-chairman of the Commission on the Status of Women, came back to this defeat and sought to explain her Commission's position. It was not that the Commission demanded that divorce be made legal.-- though it could easily have argued so on the basis of the sepa­ ration of church and state - but that it "had felt obliged to take account not only of the views of groups that did not recognize divorce, but also of the existing situation in countries where, divorce being legally recognized, the relevant legislation usually placed women at a disadvantage" (SR.58jp. 15). She was supported in this stance by Stepanenko, the Byelorussian representative, who also felt that women should be guaranteed "the same rights as men not only to contract but also to dissolve the mar­ riage ties" (p. 12). The Soviet delegation also made the dissolution point explicit in

Colonies, Minorities, and Womens Rights

I Z.J

its proposal. Again, the representatives of various Christian groups spoke up against any explicit mention of divorce. Van Istendael said that "if the Declaration proclaimed the right to dissolve marriage, it would be unacceptable to hundreds of millions of Christians in countries that were Members of the United Nations" (p. 16). Catherine Schaeffer, who represented the International Union of Catholic Women's Leagues, "pointed out that her organization comprised 36 million women divided among 120 associations in 60 countries," all of whose consciences would be offended by the "prin­ ciple of the dissolution of marriage" (p. 16). Given these divergent opinions, it is understandable that some delegations were drawn toward the simple, not very controversial phrasing of the U.K.-India text, which stated simply that "men and women are entitled to equal rights as to marriage" (99jp. 4). This phrase "as to marriage" became the end of the first sentence of the article and was as such passed on to the Third Committee (SR.62/p. 10). At this point Pav­ lov, the delegate from the USSR, pointed out that the Commission had inadvertently left out the idea of the need for the "full consent of both parties" -which had long been a point of consensus among the delegates- as well the idea of the dissolution of marriage, "which was intended to protect the woman from the loss of property which she frequently incurred as a result of divorce" (p. 11). The Third Committee voted on both points: upheld the consent question, but turned down the divorce issue. When Article 16 arrived at the Third Committee, it had the following three para­ graphs: (1) "Men and women of full age have the right to marry and to found a family and are entitled to equal rights as to marriage"; (2) "Marriage shall be entered into only with the full consent of both intending spouses"; and (3) "The family is the natural and fundamental group unit of society and is entitled to protection." The dif­ ference between this text and the final one lies in the addition of the phrases "without any limitation due to race, nationality or religion" and "during marriage and at its dis­ solution," both to the first paragraph. In the second paragraph, the consent was not only made full, but also free, while in the third paragraph, to the idea of protection was added that it be done "by society and the state." Upon the recommendation of the Lebanese delegation and with a vote of 3 to 0 and 5 abstentions the word "free" was added (p. 376). The phrase that calls for the family's protection "by society and the State" was proposed by the Soviet Union and passed with a comfortable 2 to 1 margin (p. 376). This is the only place in the Dec­ laration where the power of the state is invoked as a protective device and as such it underscores the high regard all delegates had for the family (see 7.2). The nondiscrimination clause, asserting the right to marry "without any discrimi­ nation due to race, nationality or religion," received some opposition, because several delegations did not think it necessary to repeat the prohibition of Article 2. The inser­ tion was proposed by the Mexican delegation. Campos Ortiz said his delegation real­ ized this prohibition against discrimination repeated what Article 2 had already said. Nevertheless, he felt that important things should be repeated as often as necessary, which would strengthen the Declaration "immeasurably in the eyes of the common man" (p. 364). Kalinowska, the Polish delegate, supported the Mexican amendment because "the war," she said, "had shown the equality of the sexes" (p. 371) . It passed with a vote of 22 to 15, with 6 abstentions, and it is the only place in the Declaration

1 24

.

Ch11pter 3

where some of the nondiscrimination items in the prohibition of Article 2 are repeated (p. 375). This fact itself testifies to the strength of the women's lobby and the desire of the delegates to adhere to the Charter's promise of equal rights for men and women. The addition of the nondiscrimination clause may seem innocent enough, since it simply repeated some of the items of Article 2. As we saw in Saudi Arabia's absten­ tion in the final vote (see Chapter 1), the prohibition of discrimination on the basis of religion was a great stumbling block to delegates from largely Muslim countries. Ac­ cording to Muslim law Muslims may not marry someone of an other faith. Baroody, the Saudi Arabian delegate to the Third Committee, "emphasized the fact that apparently the authors of the draft declaration had for the most part taken into consideration only the standards recognized by western civilization and had ignored more ancient civilizations which were past the experimental stage, and the institutions of which, for example marriage, had proved their wisdom through centuries." 59 Cassin, the French delegate, commented on this abstention in the General Assembly. He pointed out that the wording of Article 16 had not prevented. other Muslim countries such as Syria, Iran, Thrkey, and Pakistan from voting for the Declaration (p. 933). For in­ stance, Shaista Ikramullah, the delegate from Pakistan, told the Third Committee that "her delegation fully supported the adoption of the declaration because it believed in the dignity and worth of man [and because] it was imperative that the peoples of the world should recognize the existence of a code of civilized behavior which would apply not only in international relations, but also in domestic affairs" (p. 37). I have shown above that any mention of even the possibility of divorce had been consistently rejected by the Commission itself. The Third Committee was a much big­ ger body in that it had on it representatives of all the member states. The closeness of the vote in that larger forum - it passed on a count of 17 to 16, with 9 abstentions ­ reveals the intensity of the debate (p. 376). Those who were against the amendment generally argued that the Commission's phrase "equal rights as to marriage" said everything that needed to be said, without offending anyone. "Mrs. Roosevelt . . . re­ plying to the question asked by [Begtrup,] the representative of Denmark, pointed out that the Commission on Human Rights had interpreted the term marriage in its widest sense. Article [16] , in its original draft, dealt with all stages of marriage, from the contract to the divorce" (p. 373). She was backed on this by Cassin, who ar­ gued that "countries which had divorce laws could not after all impose the use of the word 'divorce' in the declaration when certain national constitutions did not admit it" (p. 374). By itself, this argument does not carry much wait, since the very project of the Declaration was to bring errant constitutions in line with the moral principles it enunciated. In 1948, many constitutions did not yet admit equal suffrage, but, as we

shall see below, the Declaration calls for just that.

L. J. C. Beaufort, a Dutch representative, argued that the phrase "both during marriage and when divorced" suggested to the general public that the United Nations "approved of divorce on the same footing as marriage" (p. 368) . Azkoul, the Lebanese delegate, elaborated on this point with the observation that "marriage was an institu­ tion, whereas divorce was merely an exceptional and regrettable aspect of that insti­ tution" (p. 372). Implicit in the Dutch/Lebanese position is the idea that marriage is more permanent than not, divorce being the exception to the rule.

Colonies, Minorities, and Women� Rights

I ZS

Begtrup saw the problem of equal footing that was raised and proposed the com­ promise phrase "equal matrimonial rights" for men and women. This excellent sugges­ tion did not catch on and was rejected 19 to 7, with 3 abstentions, but it does express the basic idea behind the Soviet amendment (p. 376). Pavlov himself said that "the purpose of his amendment was not to encourage divorce, but to ensure the equality of husband and wife during marriage and in case of divorce." His delegation wanted to take "the human factor into account, for the refusal to grant a divorce in the case of a family crisis was tantamount to a flagrant denial of freedom" (p. 373). The crucial qualification "in case of" can also be found in the Polish position, as expounded by Kalinowska. She pointed out that her delegation was "opposed to easy divorce," but wanted to give "the man in the street . . . the assurance that equality would obtain in case of divorce" (p. 376). Bernardino, the delegate from the Dominican Republic, wanted "the absolute equality between men and women as to marriage specifically expressed, for . . . there were countries which had not yet granted women absolute equality from the legal point of view. The ultimate goal of Article [16] should therefore be to influence gov­ ernments to revise their legislation if necessary in order to abolish any disability af­ fecting women in connection with marriage" (p. 369). Qualifying her position with the observation that equal rights did not mean identical rights, Ikramullah of Paki­ stan supported the Soviet push toward equality between the sexes, partly "to ensure protection of women after divorce and the safeguarding of their property" (p. 375). The drafters treated the issue of divorce as one of nondiscrimination rather than as a basic and independent human right. It is true, of course, that much of the opposition to the explicit mention of divorce came from delegates from Christian countries and organizations. This opposition, which was based on certain religious conviction-s, did not in the final roll call prevent these countries from voting for the Declaration. These Christians were in the same position as the delegates from Mus­ lim countries. Both groups objected on religious grounds to certain provisions of the marriage article. In the end, all of them- except Saudi Arabia-voted for the Dec­ laration, in effect admitting that the question of human rights cannot be settled on religious grounds. The human rights enunciated in the Declaration are not linked to religion. The drafters did not think that in order to accept the existence of any one of the rights one had to be an adherent of a certain faith. In that context the right to divorce, though derivative, is nevertheless fundamental, in the same way that a pris­ oner's right to a fair hearing is. No one has to contract marriage, but once one is in that state, certain rights become operative. In the Article on marriage, the Commission had been willing to repeat some of the nondiscrimination items of Article 2, namely, race, nationality, and religion. Vari­ ous delegations tried to get the same kind of repetition approved for the Article on participation in government. This made good sense, for the Commission on the Status of Women, which "sought to raise the status of women, irrespective of their nation­ ality, race, language or religion, to equality with men in all fields of human enterprise," had decided that "democracy is now the only social order in which women can enjoy full rights as human beings" (E/38/Rev.ljp. 12). And I have already referred to the Danish motion that passed the first General Assembly urging member states to give

1 26

Chapter .J

women full political rights. Against this background, the article on participation in government is one of the most important ones. Agai n , the fight was taken up by the Commission on the Status of Women and the Soviet delegation. Begtrup pointed out to the Working Group of the Second Session "that in prac­ tice there were still in many countries qualifications of class, income and sex regulat­ ing suffrage. She would like to see the word 'equal' before the word 'election' in any statement about people's right to participate in elections" (SR.7jp. 9). "Mrs. Eden, the repr(sentative of the International Council of Women, supported this view and em­ phasized equality of suffrage." Roman de Romer, who represented the International Union of Catholic Women's Leagues, "stressed the solidari ty of women on the matter of equality of political rights and suggested that a comment should emphasize that the word 'everyone' in the article contained no discrimination against women" (p. 9). To back up these suggestions, Stepanenko, the representative of the BSSR, proposed that "all citizens of any State, regardless of race, sex, language, religion, fortune, edu­ cation, national or social origin, have the right to elect and be elected in all the organs of their governments by universal, free and general elections" (p. 9). This sweeping proposal was rejected 3 to 1, with 2 abstentions. The group adopted instead the idea that "everyone, without discrimination, has a r ight to take an effective part in the gov­ ernment of his country" (p. 11). Aside from the right to run for office and be elected, two main issues are con­ nected with participation in one's government. The question of who should partici­ pate raises the issue of un iversal suffrage and led the women's lobby to argue for a nondiscrimination prohibition. And the question of how such participation should take place brought up the matter of open and free elections. In the end the question of equal suffrage rights for men and women was subsumed under the second issue having to do with the nature of the elections. In the Second Session of the Drafting Committee, Roosevelt, as representative of the United States, came with a proposal that deleted from the right of par ticipation the phrase "without discrimination ," on the grounds that it unnecessarily repeated the prohibition of Article 2 (SR.41jp. 8). The U.K. delegation made the same suggestion (p. 12). This deletion of all reference to nondiscrimination was one extreme option open to the delegates. The other extreme was an earlier Soviet proposal to add a long list of nondiscriminatory items such as "property, residence, social origin, religion, race or political beliefs," all of which could not bar a person from participation in his or her government (p. 10). Santa Cruz, the Chilean delegate, propos e d a slightly dif­ ferent list: "everyone, without discrimination as to race, sex, language, creed or social class, p ossessing legal capacity " has the right to participate in the government (p. 12). Pavlov objected to the deletion of all mention of nondiscrimination as "it would allow the retention of dangerous discriminations" which some governments still openly practiced (p. 13). He was supported in this view by the French delegation. "To faci li­ tate the discussion, the chairman and Mr. Wilson [U.K.] withdrew their respective amendments" (p. 14). The D raftin g Committee approved the Ch ile an nondiscrimina­ tion list, but rej ected the USSR proposal that the elections mentioned in the article be mandated as "universal, equal, dire ct , pe riodic , free, fair, and by secret ballot" (p. 14). These election qualifications were restored in the Third Committee. The Third Session of the Commission accepted a short U.K.-India text that de-

Colonies, Minorities, and Women!r Rights

127

leted the Chilean nondiscrimination list, leading to this simple text: "Everyone has the right to take part in the government of his country directly or through his freely chosen representatives" (E/CN.4f99fp. 5}. Ledon, the vice-chairman of the Commis­ sion on the Status of women, objected to the deletion of the nondiscrimination items, "particularly discrimination of sex. It was unfortunate that in many countries, women did not enjoy political rights. The right to vote in particular was often withheld on the pretext of political immaturity" (SR.61fp. 16}. If this was not spelled out, she wanted a note added on how the Commission interpreted the word "everyone" in this article. Wilson assured her that the term "embraced all persons, except children and the in­ sane." The USSR delegation supported the Commission on the Status of Women, but the simple U.K.-India text passed with 11 to 4 votes, with 1 abstention (SR.62fp. 2). The election qualifications that had been dropped in the Second Session of the Drafting Committee were restored when the Third Committee adopted a Chinese text that was very close to the final product.60 This Chinese version had the qualifi­ cation "equal" attached to suffrage, thus implying the acceptance of what Jimenez de Arechaga, the representative from Uruguay, called the "principle of the absolute equality of the political rights of men and women" (p. 465). This is yet an other place where the Charter's goal of political equality for women influenced, by way of the women's lobby, the wording of the Declaration. This is so, even though women are not mentioned explicitly. The same thing is true of the repetition of the discrimination prohibition in the second paragraph of Article 23: "Everyone, without any discrimination, has the right to equal pay for equal work." The phrase "without any discrimination" is a compro­ mise text that was accepted when discord arose in the women's camp. The Second Session of the Commission had adopted the following: "women shall work with the same advantages as men and receive equal pay for equal work." 61 In the Third Ses­ sion discord arose when Janet Rob, the representative of the Liaison Committee of the International Women's Organizations, "speaking on behalf of 14 feminine organi­ zations requested the deletion" of the paragraph. She thought that it "could lead to misunderstanding and was an unnecessary limitation on the word 'everyone' that was used in the first paragraph of the article" (SR.64fp. 5). But Ledon of the Commission on the Status of Women wanted to see the paragraph retained. The issue was an acute one, for the U.K. and Indian delegations had submitted a joint text which omitted the equal pay for equal work paragraph (99/p. 6}. And the brevity of that text was appealing to many delegates. Even Metha, the Indian repre­ sentative, "did not think it necessary to use the words 'and women' since 'everyone' was all inclusive" (SR.64fp. 10}. Lebeau, the Belgian delegate, liked the U.K.-Indian draft because "the principle of equality between the sexes had been stated many times in the Declaration and therefore, it was unnecessary to mention it again" (p. 13). In contrast, Pavlov, the Soviet delegate, thought it crucial to keep the women's clause in, for "it could not be left to the discretion of the employer who was only too ready to hire cheap labor when he could. It was necessary therefore to guarantee the right ex­ plicitly" (SR.66fp. 5). A subcommittee was appointed, which proposed that "women shall work with the same advantages as men and receive equal pay for equal work" (E/CN.4/114}. Metha, who had been part of that group, said that only two members had wanted this provision and that she herself felt that to make "specific reference to

1 28

Ch•pter .J

women in the article would give rise to the impression that women did not have the same rights in other matters where they were not specifically mentioned." Stepanenko, the representative of the BSSR, "expressed his astonishment that the representative of India, herself a woman, was opposed to [the paragraph] 4. The im­ portance of such a provision was paramount, in view of the fact that women had been discriminated against in the matter of pay almost more than in any other. Moreover, the Commission on the. Status Women had adopted a resolution, requesting that the Declaration contain a provision about equal pay for equal work. This provision had been adopted in the text of the Second Session of the Commission and in the text of the Drafting Committee, and it was not right to ask for its exclusion now" (SR.66/p. 6). Whereupon Wilson "declared that, in spite of the arguments of the BSSR represen­ tative, he would be guided by the views of the two women members [Roosevelt and Metha] of the Commission" (p. 6). Metha "reiterated her conviction that any specific mention of women in the article would only weaken the position of women; there were many other fields in which there was discrimination against women, but nowhere else did the Declaration make specific mention of women, it being understood that 'every· one' included women" (p. 7). Ledon, "on behalf of her Commission [on the Status of Women] , which repre­ sented all the women of the world, urged the adoption of the paragraph." She ap­ pealed to "the sense of justice of the members on the Commission, urging them to support that paragraph in order to improve the position of women throughout the world." Cassin said he did not worry about the overlap with Article 2, for he "con­ sidered it more important to defend women than to defend words" (pp. 7-8). Pavlov proposed to broaden and change the paragraph to read "everyone, regardless of race, nationality, or sex." That, he said, "would cover discrimination against women and also discrimination against coloured workers as compared to white, colonial workers as compared to those of Metropolitan powers" (p. 9). This reference to the colonies did not sit well with the British representative who objected to such broadening of the discussion. The Commission adopted a Chilean proposal, which read "Everyone is entitled to receive equal pay for equal work," with a vote of 10 to 3, with 4 absten­ tions. Any mention of discrimination was turned down, including a specific reference to women. The issue was taken up again by the Soviet delegation in the Third Committee. Its amendment "everyone, without distinction as to race, nationality, or sex has the right to equal pay for equal work" was adopted, but the whole text of the article -which included the other paragraphs as well-was rejected, leaving the matter unresolved (p. 92). As a way out of the impasse, the United States delegation proposed to replace the itemized Soviet list with the general phrase "without discrimination." Upon the suggestion of the Belgian delegation, the word "any" was added to that phrase, which brings us to the final text (p. 97) . The general phrase "without any discrimination" re­ peats the nondiscrimination prohibition of Article 2, but the impetus for its inclusion came from the women's lobby, suggesting that whatever else the article says, the Decla­ ration must be interpreted as supporting a woman's right to equal pay for equal work. We have seen that Article 2's nondiscrimination list ("race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status" ) is a deliberate expansion of the Charter's mandate that the new world organi·

Colonies. Minorities. and Women� Rights

1 Z9

zation promote human rights for all without discrimination based on "race, sex, Ian· guage or religion," and that in the case of sex discrimination there existed a women's lobby that kept most sexist references out of the final product. With the exception of the terms "political" and "language," discussed in sections 4 and 3 respectively, the disagreements about the items on Article 2's list were minor ones. All of the drafters believed that the principle of nondiscrimination, as expounded in this chapter and when combined with the exegesis of Article 7 given in sections 2.2 and 2.4, was the gateway to the universality of the human rights proclaimed in the Declaration. In section 6.5 I explain that the drafters had very few substantive drafting prin· ciples and that they let their text grow organically from one drafting stage to the next. Their prohibition of discrimination is an exception to this practice. Primarily- though by no means exclusively- as a result of Communist insistence the drafters adopted this prohibition as a drafting principle that came to deeply affect the meaning and scope of every article they wrote. This principle is reflected in the repeated use of the words "all," "everyone," and "no one": "all people and all nations" (Preamble) , ·�n human beings" (Article 1), "Everyone" (2), "Everyone" (3), "No one" (4), "No one" (5), "Every· one" (6), '�ll" (7), "Everyone" (8), "No one" (9) , "Everyone" (10, "Everyone" and "No one" (11), "No one" (12), "Everyone" (13), "Everyone" (14), "Everyone" (15), ''All men and women" (16), "Everyone" (17), "No one" (18), "Everyone" (19), "Everyone" and "No one" (20), "Everyone" (21), "Everyone" (22), "Everyone" (23), "Everyone" (24), "Everyone" (25), "Everyone" (26), "Everyone" (27), "Everyone" (28), "Everyone" (29), and "In no case" and "Nothing" (30). This litany of universal terms reflects the draft· ers' conviction that there are no exceptions to the possession of human rights. All members of the human family possess them simply by virtue of that membership.

Chapter 4 Privacy and Different Kinds of Property

4 . 1 The Latin American Connection

The nations of Latin America have had a tumultuous history with sharp turns from dictatorships to democracy and back again. But from the beginning many of their con­ stitutions have included social and economic rights. Furthermore, in the mid-1940s there seems to have been a confluence of factors which enabled the Latin nations to speak almost with one voice on constitutional matters. At that time Latin America counted an unusually large number of democratic republics. In their joint reaction to the Great Depression and to the absolutism of both right and left, they all (or al­ most all) hit a democratic stretch at the same time. Of the twenty-one Latin American members of the United Nations in 1948, at least ten had rewritten their constitutions in the 1940s, five in the 1930s, and two more in the first quarter of the twentieth cen­ tury.1 While Latin American constitutions had always granted their citiz ens a measure of social security, these rewrites and overhauls were even more explicit and detailed in their statement of social and economic rights. The socialist Mexican constitution of 1917, which came out of the revolution, served as an inspiration and model for several other countries. This unity of constitutional purpose had a threefold impact on the writing of the Universal Declaration. It helped with putting the seven human rights references in the United Nations Charter. It was the main source from which Humphrey bor­ rowed when he put the social, economic, and cultural rights into his first draft of the Declaration. And the 1948 Bogota Declaration, which came out of this Latin socialist tradition, served in the later drafting stages as a model for the Latin American dele­ gations. Since the Latin nations often voted as a bloc, the adoption of this regional Declaration heavily influenced the drafting process and product of the universal one that is the object of this study. In February 1945, toward the end of World War II, the nations of the Americas held the Conference on War and Peace in Mexico City. At this conference Guatemala recommended that the American nations as a group refrain from "granting recogni­ tion to and maintaining relations with anti-democratic regimes which, in the future, may establish themselves in any of the countries on the continent; and in particular with regimes which may result from a coup d'etat against legitimately established gov­ ernments of a democratic structure" and "declared that World War II had created a worldwide demand that the rights of man should be recognized and protected on the international level, and that the inter-American movement therefore should support

Privacy and Different Kinds of Property

I Jl

this universal yearning by recognizing that antidemocratic regimes were the primary cause of denial of human rights and freedoms." 2 Many of the nations that had favored the Guatemalan proposal took their con­ cerns to the May 1945 conference in San Francisco where the United Nations was being organized. There these Latin American nations joined numerous nongovern­ mental organizations, many of them from the United States, and lobbied vigorously, but unsuccessfully, for the inclusion of a bill of rights within the Charter of the United Nations. The first three governments that submitted full-fledged bills to the later estab­ lished Commission of Human Rights were Panama, Chile, and Cuba. The drafts these countries submitted all contained rights to: an education, work, food, and health care and other social security provisions. Some of these rights are spelled out in detail. 1\vo of the drafts use the phrase "Social Security" as a caption (W.8jp. 16). These three drafts, together with one submitted by the American Federation of Labor, which in­ cluded similar provisions, were the first drafts that Humphrey's staff collated and pre­ pared for study by the Human Rights Commission. Because of this timely input the social, economic, and cultural rights got in on the ground floor of the drafting process. The Panamanian draft was prepared by the American Law Institute (ALI); the Cubans wrote their own; and the Chilean draft was prepared by the Inter-American Juridical Committee (Inter) of the Organization of American States, which had re­ ceived a mandate from the Mexico conference to write such a bill. In preparing his draft for the Human Rights Commission, Humphrey used these early submissions a great deal, especially the Panamanian and Chilean ones (Table 1). Table 1 shows that Humphrey took much of the wording and almost all of the ideas for the social, economic, and cultural rights of his first draft from the tradi­ tion of Latin American socialism by way of the bills submitted by Panama (ALI) and Chile (Inter). Mter Humphrey had inserted the new rights into the draft Declaration he appropriately stepped back from the drafting process and became the Secretariat's facilitator of the Commission's work. It is impossible to overemphasize the importance of the fact that from the beginning the burden of proof was on those who wanted to delete certain articles. When those attempts were made, the Latin American delegates made sure that what Humphrey had put in stayed in. Among these guardians Santa Cruz, the delegate from Chile, was the greatest, and he and Humphrey enjoyed an ex­ cellent working and social relationship. However, Humphrey did not experience the attempts by Guy Perez Cisneros, the Cuban delegate to the Third Committee, to mold the Declaration on the Bogota model in an equally positive manner (see below). He referred to this later thrust as "the Bogota menace." 5 The Guatemala proposal made in Mexico City was referred to the Inter-American Juridical Committee for study and consideration. When this Committee gave its re­ port at the Ninth International Conference of American States, held in Bogota in April 1948, it did not support the Guatemalan proposal. But that same Conference did adopt the American Declaration of the Rights and Duties of Man, also known as the Bogota Declaration. The preamble of the Bogota charter (for the newly consti­ tuted Organization of American States) called for "the consolidation on this continent within the framework for democratic institutions of a system of individual liberty and social justice based on respect for the essential rights of man." 4 The Bogota Declaration also gives liberty and social justice equal ranking. This

1 32 TABLE

Chapter 4 1.

Social and Economic Rights in Humphrey's First Draft of the Declaration of Human Rights

Article

Right

H35 H36 H37 H38 H39

To health care To an education And duty to do "socially useful work" To good working conditions To an "equitable share of the national income as the need for his work and the increment it makes to the common welfare may justify" To "such public help as may be necessary to make It possible for him to support his family" To "social security" and protection against the risks of "unemployment, accident, disability, sickness, old age and other involuntary or undeserved loss of liveli­ hood" To "good food and housing" and "healthy surroundings" To "a fair share of rest and leisure"

H40

H41

H42 H43 H44

To "participate in the cultural life of the community, to ernoy the arts and to share in the benefits of science"

Inter 16, exact ALI 11, exact Inter 14; ALI 12 ALI 13, exact New: Cuba 9; AFL 3

Inter 10 and 16: Cuba 1 0 ALI #, exact; Inter 16: AFL 3; Cuba 10

ALI 14, exact; Cuba 1 1 and 12, exact New (but in numerous Latin American constitutions) New: Inter 15, exact

Souru: AC.l/!1 and W. B.

8Deslgnatlons refer to drafts by the American Law Institute (ALI) for Panama; the Inter-Amerlcanjurldlcal Committee (Inter) for Chile; the American Federation of Lab or (AFL) ; and Cub a, The designation "exact" Is Included for Instances In which Humphrey borrowed all or most of his phraseology from his source,

document includes the following social and economic rights, which overlap with Uni­ versal Declaration (UD) articles as indicated in parentheses: to protection of honor, personal reputation, and private and family life (UD 12), to a family and the protec­ tion thereof (UD 16), to protection for mothers and children (UD 25), to the inviola­ bility of the home (UD 12), to the preservation of health and well-being (UD 25), to education (UD 26), to the benefits of culture (UD 27), to work and fair remuneration (UD 23), and to leisure time and the use thereof (UD 24).5 The match of the social and economic provisions of the two documents is nearly perfect. I hasten to say that the connection is not a direct one. The new social and eco­ nomic rights were not transferred from Bogota to Paris in one big swoop. That could not have happened because when the new rights were first introduced into the earliest drafts of the Universal Declaration in June and December 1947, the Bogota Decla­ ration of April 1948 had not yet been drafted. But it is true that in 1948 the Latin American nations were engaged in drafting two bills of rights, the Bogota one for their own region and the other for the United Nations. Almost all Latin American countries sent delegates to both events and no doubt many of these did double duty. The above tally shows that social, economic, and cultural rights were an acceptable

Privacy and Different Klndl of Property

I .J.J

piece of constitutional furniture in Latin America in the 1940s and that the Universal Declaration was-while not exactly crafted on the Bogata model-greatly influenced by that precedent and the tradition from which it sprang. The segments of drafting history on which I report in this and the following chapters will bear this out. I see the connection between Humphrey and this Latin voting bloc as a fortu­ itous moment in history when Hegel's World Spirit made a hot-tempered Canadian law professor take a giant step forward in the dialectic of history. Someone else with a different background and of a different philosophical persuasion than Humphrey might well have prepared a first draft without including any of the social and eco­ nomic provisions. He or she might have seen what the Latin American nations were offering and ignored it or fought it. Humphrey's borrowing was not of the blind kind. He was in fact the perfect person to make this connection. John P. Humphrey was born and raised in New Brunswick, Canada, studied law at McGill University, where, at the time of his 1946 appointment at the UN, he held the position of Gale Professor of Roman Law.6 He was a bilingual Francophile who "wrote about the cultural divide between French and English in Canada and was an early (and prophetic) advocate of Canadian bilingualism" (p. 17). His main intellec­ tual interest was in international law and his course in that area was one of the first to be offered in Canada. All his life his political views have been those of a benign social­ ist kind, as reflected in a letter to his sister when he was twenty. "It's the good a chap can do more for humanity and his country that counts," he wrote her, "not the good that he does for himself" (p. 11). He was "deeply struck" by the Great Depression and afraid of losing his job as a practicing lawyer. As it was, he landed a fellowship with the Carnegie Endowment for International Peace and in 1936 returned to France as what he described as "a social democrat in . . . political thinking" (p. 12). In his late twen­ ties, while he was making a career as a law professor at McGill, the League for Social Reconstruction "was . . . [a]n important influence on . . . [his] intellectual and politi­ cal development" (p. 25). He was also active in the Canadian Institute of International Affairs and in the United Nations Association organization. During the war Montreal was a place of refuge for many Europeans, one of whom was Wilfred Jenks, later director general of the International Labor Organization, which became deeply involved in the drafting of the Declaration. Another was Henri Laugier, a French medical professor, who had gone into exile from Vichy France. He later became the assistant secretary-general of the United Nations in charge of social affairs. During Laugier's Montreal years he and Humphrey became "good friends." 7 In June 1946 Laugier called Humphrey and offered him the post of director of the Division of Human Rights and Humphrey accepted. Just that summer Humphrey had been passed over for a possible deanship of the McGill law school because of his earlier "left-wing politics." Later in an interview he made the observation that if there had been a McCarthy in Canada he and his intellectual friends would have been in trouble. Those were the days when "to him socialism . . . [was] a religion." Evidently, the same socialist inclinations which lost him his deanship were the very ones that helped him in his new job to make the Latin American connection I describe here. Humphrey's early writings "show a very strong interest in Latin American Affairs" (p. 16). He wanted Canada to get more involved in the Organization of American States. In 1940 he wrote an essay in which he "looked at developments in Mexican

1314

Chapter 4

political structures and advocated stronger Canadian participation in Mexican at­ tempts at agrarian reform." In 1942 he argued that "Canada shared certain cultural similarities with Latin America" and again he wanted stronger ties with the Organiza­ tion of American States (p. 17). 4 . 2 Inviolability and Privacy Rights

When someone owns a piece of property, she can announce that fact to others by way of posting a sign with the deed to the property on it ("Someone is here already" ) or by having a sign announce that trespassers will be prosecuted. The first is a positive way and the second a negative way of announcing the existence of a right. When the deed is posted it is implied that trespassers will be prosecuted and, conversely, when the threat to trespassers is used it is understood that the owner has a legally executed deed to the property. In the writing of almost all the articles of the Declaration the drafters used the positive mode of expression. The recurring phrases "Everyone has the right to . . ," or "Everyone is entitled to . . .'' amount to the posting of all the rele­ vant rights as deeds. Article 12 of the Declaration is different because to write it the drafters used the negative mode of expression: "No one shall be subjected to arbitrary interference with his privacy, home or correspondence, nor to attacks upon his honor and reputa­ tion. Everyone has the right to the protection of the law against such interference or attacks.'' The article does not post a human right to all these things as a deed, but im­ plies that everyone has such inherent rights because they are said to have the right to be protected against interferences in this realm of privacy. The second sentence adds a second "no trespassing" sign, which shows that infractions will be taken very seriously. This negative and different way of stating the human rights declared in Article 12 comes as a surprise because the world's constitutions that Humphrey's staff had col­ lated spoke with a remarkably uniform voice on the issues raised by Article 12. Almost all of them- from the entire spectrum of ideological persuasions -used the language of inviolability. I quote a few of the numerous examples: "The domicile is inviolable, as also epistolary correspondence and private papers" (Argentina); "every house is an inviolable asylum"/ "epistolary correspondence and private papers are inviolable" (Bolivia) ; "the dwelling is inviolable" and "the privacy of letters and other means of communication is inviolable" (Yugoslavia). Egypt, Iraq, Lebanon, Belgium, Denmark, and Luxembourg used similar phrasing.8 Applied to rights, this is the strongest possible language one could use to state that someone has a right to something, for the language of inviolability captures both the positive aspect of the possession of the right and the negative aspect of warning away potential violators with the threat of being prosecuted. Because it is such strong language it is only used for special kinds of rights, such as the right to the security of one's person, home, and correspondence. Given the uniformity of the constitutional norm for writing about the rights of Article 12, it comes as a surprise that in his first draft Humphrey did not follow that norm. Only nine of the constitutional statements in Humphrey's survey cast these rights in a negative mold, plus the one he used from the United States.9 The Fourth Amend­ ment to the Constitution of the United States states that "The right of the people to

Privacy and Different Kinds of Property

1 JS

be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated" (p. 9). "The right to be secure in" is the same thing as Article 12's second sentence with its "right to protection against." The U.S. dele­ gation had submitted to the First Drafting Session the following text: "No one shall be subjected to arbitrary or unauthorized searches of his person, home, papers and effects, or to unreasonable interference with his person, home, family, relations with others, reputation, privacy, activities, or property. The secrecy of correspondence shall be respected" (AC.l/11/p. 15). This long U.S. proposal went far beyond its own Fourth Amendment because it took into account a Chilean draft proposal that gave numer­ ous details on the "right to freedom of family relations," as well as a Panamanian pro­ posal which contained a right "to freedom from wrongful interference" that covered a person's "person, home, reputation, privacy, activities, and property" (W.8/pp. 6-7). Humphrey took the U.S. proposal and shortened it to say: "No one shall be subjected to arbitrary searches, or to unreasonable interference with his person, home family relations, reputation, privacy, activities, or personal property. The secrecy of corre­ spondence shall be respected." 10 One of the difficulties with Article 12 had to do with the disparate character of the rights in question and how to capture that fact in one good sentence. The language of inviolability does not fit all the items on the list equally well. While almost all consti­ tutional citations applied the inviolability description to the home or domicile itself, two of them said it was the sanctity of the home that was inviolable.11 In the case of the inviolability of correspondence it often was not the correspondence itself, but the pri­ vacy or secrecy of it that was said to be inviolable.12 In the case of a person's honor and reputation the best insertion is that of "respect for" a person's reputation or honor. Drafting problems like these led Santa Cruz, the delegate from Chile, to suggest in the First Drafting Session that "the inviolability of property and correspondence" be split off from the question of "freedom of family relations" (SR.4/p. 6). This was never done. Instead, the language of inviolability itself ended up being dropped from the article. Numerous attempts were made to get the article to conform more closely to the international norm and to somehow keep the language of inviolability in the article. In his first rewrite Cassin used this key term and compressed the article: "The inviolability of privacy, home, correspondence and reputation are protected by law" (W.2/Rev.l). He also dropped the phrase "personal property" from the article prob­ ably because the first paragraph of Humphrey's Article 22 also contained the right to personal property and because in the constitutional survey cited above words like "dwelling," "home," "residence," "house," and "domicile" were more prevalent. In his second rewrite Cassin stressed the matter of inviolability even more: "The inviolability of privacy, home, correspondence and reputation are inviolable and protected by law" (W.2/Rev.2). Geoffrey Wilson, the delegate from the United Kingdom, objected to all this in­ violability language. Cassin agreed with him that the word "inviolable" (as an adjective) "should be avoided" and replaced with "shall be respected." He was probably thinking of the item of "reputation" with which that language fits poorly. Cassin also thought "that the words 'inviolability of the home,' which were accepted in all legislatures and all jurisprudence, should be kept. Deletion of the phrase 'inviolability of the home' was a retrogression," he said (SR.13jp. 2). Hernan Santa Cruz agreed with this. But

U6

Chapter 4

Wilson repeated that the things on the list were not "inviolable." "There were all types of people," he said, "who had every right to enter a home and read the gas meter. What the article was aiming at was the privacy of the home and not its inviolability." 19 As a result of these questionable objections, and since the term "inviolability" did not occur in the Humphrey text, the First Session of the Drafting Committee adopted this text: "The privacy of the home, of correspondence and respect for reputation shall be protected by law." 14 At the start of the Working Group of the Second Session Roosevelt stated that (if the article began with "Everyone has the right") she would agree with the proposal submitted by the delegation of Panama (A/148) : "Freedom from unreasonable inter­ ference with his person, home, reputation, privacy, activities, and property is the right of everyone. The State has the duty to protect this freedom" (SR.5jp. 2). Cassin liked this Panama/United States proposal. M. Amado, referring to the Panamanian sub­ mission I cited, "thought that the inviolability of the person should be afforded the same guarantees as that of his domicile" (SR.5/p. 2). A significant number of constitu­ tions, including that of the United States with its phrase "persons, houses and papers," ranked the inviolability of the home or dwelling on the same level as the inviolability of the person.18 Just as the item of "personal property" was dropped because it was covered by what became Article 17, so the inviolability of one's own person was thought to overlap with what became Article 3 .18 Cassin said he understood Amado's point but thought that "the protection of person had already been covered by the article on slavery. In Article 12 it was the liberty of the home that was being affirmed, not that of the indi­ vidual" (SR.5jp. 3). After this discussion, the Working Group adopted by a vote of 3 to 0, with 3 abstentions, the following text: "Everyone shall be entitled to protection under law from unreasonable interference with his reputation, his privacy and family. His home and correspondence shall be inviolable." The full Second Session did not discuss this article and accepted it by 14 votes to 0, with 2 abstentions (SR.37jp. 8). Since at this time the word "inviolability" was in the text, several governments (in their response to a questionnaire) stated that such inviolability is not absolute and that the exceptions should be stated. This reaction shows that there is something special about the rights under consideration, for with many of the other rights the drafters felt no need to state that the right was not absolute. Everyone understood; for ex­ ample, that the state may deprive a criminal of the "right to freedom of movement" which Article 13 says "everyone" has. What drew out these responses was the use of the word "inviolable." The government of the Netherlands submitted this alternative text: "No one shall be subjected to unreasonable interference with his privacy, family, home, correspon­ dence or reputation" (85/p. 22). In its explanatory comment the Dutch government said that "in order to enable legal exceptions to the principle of inviolability of home and correspondence, the first sentence of Article 3 proposed by the United States ['No one shall be subjected to unreasonable interference with . . (36)') is to be preferred to the text proposed by the Commission." In the discussions, C. H. Wu, the Chinese delegate, expressed his preference for this Dutch text (AC.ljSR.36jp. 6). The Brazil­ ian, South Mrican, and Norwegian governments made similar comments.17 These criticisms of the language of inviolability were available to the delegates of .

Privacy and Different Kinds of Property

1 37

the Second Session of the Drafting Committee. At the same time the U. S. and Aus­ tralia had submitted texts that were also negatively phrased and avoided the language of inviolability.18 The French delegation, which was a strong supporter of "the inviola­ bility of the home," submitted a text which stated that "the law shall protect the honor and reputation of citizens, the freedom of private and family life and the inviolability of the home and of the secrecy of correspondence" (82/Add.Sjp. 3). E. J. R. Heyward, the Australian representative, said he liked the positive slant of the French text better than what he himself had submitted because it spoke of "protection by the law of the various rights mentioned, rather than a general reference to the fact that every­ one was entitled to freedom from interference with those various rights" (SR.36jp. 6). Santa Cruz agreed that "those concepts should be stressed as rights to which every­ one was entitled" (p. 6). In spite of these expressions of support for a more positive phraseology the following negatively worded text was unanimously adopted: "Every­ one is entitled to protection under the law from unreasonable interference with his reputation, family, home, or correspondence" (p. 7). The negative way of stating a human rights claim has the state and its legal system built into the text as a silent partner, for the duty to protect people in their enjoyment of these rights falls in the first instance on the machinery of the state. For this reason the clause "under law," when added to the call for protection, was not really neces­ sary. As Metha, the Indian delegate, had told her colleagues in the Third Session, "the Commission had not deemed it necessary to specify in article 4, which guaranteed to everyone the right to life, liberty and security of person, that these rights would enjoy the protection of the law, which was self-evident" (SR.55jp. 3). The Third Session of the Commission therefore deleted the clause and (by 9 votes to 3, with 4 abstentions) adopted the following Chinese text: "No one shall be subjected to unreasonable inter­ ference with his privacy, family, home, correspondence or reputation" (p. 4) . The Third Committee made two changes in the article. It replaced the word "un­ reasonable" with "arbitrary" and it added a second sentence. The Lebanese delegation proposed to simply delete the word "unreasonable" outright, the Saudi Arabia dele­ gation proposed the word "illegitimate," and the New Zealand delegation proposed the word "arbitrary." J9 The Saudi Arabian proposal was an interesting one for in this context the word "illegitimate" functions like "illegal." Asjamil Baroody, the Saudi delegate, explained it, "The right of every individual to be free from State interference in his private life must be regarded as sacred as long as that right was not used as a cloak for ac­ tivities which were essentially detrimental to the general good, or which endangered its general welfare and security" (p. 276). He went on to say that the word "unrea­ sonable" was not sufficiently precise and was open to many different interpretations. Hence, in every country, the national law remained the best safeguard against unrea­ sonable interference" (p. 276). This is legal positivism with an Islamic twist. The word "unreasonable" is not bound by law in the same way as the word "illegitimate" is. As explained by Baroody, the word "illegitimate" does not allow for that kind of tran­ scendence of the domestic legal system, which is probably the reason why Pavlov, the USSR delegate, expressed support for the Saudi proposal (p. 306). Several delegations thought that the word "arbitrary" would allow for this kind of transcendence. It may, however, be only slightly better than "illegitimate," for as long

Ul

Chapter 4

as the bad, interfering law is consistently applied and equal cases are treated equally, a certain interference could be unreasonable, or even immoral, and still not be arbi­ trary. A. M. Newlands, the New Zealand delegate, gave two reasons why her delegation had proposed this word. The first one was that this word had already been used in Articles 9 ("arbitrary arrest" ) and 15 ("arbitrarily deprived of his nationality"). Her second argument was that "it was extremely difficult to define the exact limits of what might be considered "unreasonable" whereas the word "arbitrary" "signified every­ thing that was not in accordance with well established legal principles" (p. 276). (I do not see how this could be so, unless we add the qualification "international.") The United States, China, and the Netherlands also favored the shift from "unreasonable" to "arbitrary" (pp. 308, 305). Though Pavlov had spoken in favor of the Saudi word "illegitimate" the Soviet Union now proposed a first paragraph which went along with what most delegations seemed to want: "No one shall be subjected to arbitrary interference with his privacy, family, home, correspondence, honor and reputation." 20 This was adopted by 23 votes to 12 with 6 abstentions. Because delegates immediately realized that "arbitrary inter­ ference" with someone's honor or reputation is not a clear conception, they accepted a Chinese proposal that limited the range of "arbitrary interference" to a person's "privacy, family, home or correspondence" and then added "nor to attacks upon his honor and reputation" (p. 314). This new text was adopted together with the second sentence of the article. The second sentence stated: "Everyone has the right to the protection of the law against such interference or attacks." This addition grew out of a USSR amendment stating "and everyone is entitled to legal defense against such interference" (E/800). The adoption (in a slightly different form) of this call upon the legal machinery of the state to protect the rights in question is very unusual and underscores the spe­ cial character of the rights in Article 1 2.21 At some point in the proceedings of almost every article the USSR had requested that the article include a statement calling upon the state to implement the right in question. These amendments were almost always rejected because the majority of delegates did not want to include that kind of imple­ mentation language in the Declaration. Why then did they vote for it in the case of Article 12? Several delegations did make the standard objection. Henry Carton de Wiart, the Belgian delegate, "said he would vote against the USSR amendment because he felt there was no more need to mention protection of the law in article 10 [12] than in any of the other articles" (p. 314). Contoumas, the delegate from Greece, was similarly op· posed to the USSR state references "because it was a measure of implementation" and "similar clauses might be added to any of the articles" (p. 305). In spite of these stan­ dard objections, the USSR · amendment to add a second sentence ("Every one has a right to the protection of the law against such interference") was adopted by 22 votes to 12, with 11 abstentions. In the Third Committee, both Panama and Cuba sought to broaden the range of this article. Panama proposed to insert the items of "persons," "activities," and "prop· erty" into the article and Cuba proposed to craft the article by combining three sepa· rate articles from the Bogota Declaration that the Organization of American States had adopted the preceding Apri1,22 Both attempts failed. The reason for not wanting

Privacy and Different Kinds of Property

1 39

to add the word "property" to the list of privacy rights were the same ones Cassin had had for dropping the item when he revised the earliest drafts. The delegations of the Netherlands, Greece, the USSR, and the U.K. all made the point that this addition was unnecessary because the Declaration had a separate article dealing with property rights (p. 305). That article is the subject of the next two s e ctions . 4 . 3 Should Personal Property Be Singled Out?

Article I7 of the Declaration has just two short paragraphs : (I) "Everyone has the right to own property alone as well as in association with others" and (2) "No one shall be arbitrarily deprived of his property." Considering how natural the connection was between Humphrey's political views and the tradition of Latin American socialism, it is understandable that the first draft of this article looked very different from the final version. Humphrey's Article 22 dealt with property righ ts proper and had four paragraphs. Humphrey's Articles 23 and 39 also dealt with property rights , broadly conceived. H23 stated that "No one shall be required to pay any tax or be subjected to any public charge that has not been imposed by law" (AC.l/3) . Both H22 and H23 were grouped with other "liberties" in Humphrey's chapter I. Humphrey's Article 39, which was part of his "Social Rights" chapter, can also be read as having to do with property rights : "Everyone has the right to such equi­ table share of the national income as the need for his work and the increment it makes to the common welfare may justify" (AC.l/3). This suggests that the whole of a nation's wealth and all that that entails belongs to all the people together and that to each belongs that part of it that he or she contributes through his or her work. H39 clearly reflects Humphrey's socialist views and it implies extensive property rights in the wealth of the nation of which one is a citizen.u This right is not the same thing as Marx's famous slogan "From each according to his ability, to each according to his needs." 2" But it does fit the socialist principle on which the I936 USSR constitution said life in the USSR was founded: "From each according to his ability, to each accord­ ing to his work!" 25 In their survey of the world's constitutions, Humphrey's staff had this st atement collated with his Article 39. I mention H39 in this context of property rights because it shows that the deep impulse behind property rights in the Universal Declaration is not the one so often asso ciated with Western "possessive individualism," but one that has far deeper communitarian roots than is normally thought.26 Of Humphrey 's three articles on property, the two I just mentioned- H23 on taxation and H39 on a share of the national income - were dropped from the draft declaration when Cassin was asked to do rewrites. In the First Drafting Session Cas­ sin had sponsored the article on taxation (SR.4jp. 8). The sponsorship of H39 was taken care of when Santa Cruz of Chile sponsored the whole block of Humph rey's social rights , H35 through H44 (p. 10). When Cassin turned in his abbreviated ver­ sions Santa Cruz did not comment on the omission of H39 from the new list. That omission amounted to a drastic curtailment of the socialist stamp that Humphrey had sought to put on the Declaration . This brings us to Humphrey's main article on property rights , H22. The drafting history of this article has two fairly distinct phases to it, one that focused on whether to separate out the right to own personal property and one that tells the story of the

I 40

Chapter 4

clause "alone as well as in association with others." The first phase involved a great deal of struggle about whether the Declaration should, like its Bogota predecessor, single out and promote the right of everyone to be an owner or possessor of a minimum of personal property. Given that this kind of right is already implied in Article 12's list of privacy rights, one would think that the answer would be a clear yes. But the story is a complicated one. The discussions involved were some of the most openly philosophi­ cal ones in which the drafters engaged. The Latin American delegations argued that only the right to own personal property was properly a human right and should there­ fore be lifted up for attention. The other delegations first accepted this idea, but then came to reject it as representing too narrow an approach to the rights in question. Humphrey's main article on property (H22) contained the following four para­ graphs: (1) "Everyone has a right to own personal property"; (2) "His right to share in the ownership of industrial, commercial and other profit-making enterprises is gov­ erned by the law of the State within which the enterprises are situated"; (3) "The State may regulate the acquisition and use of private property and determine those things that are susceptible of private appropriation"; and (4) "No one shall be deprived of his property without just compensation" (AC lf3) Humphrey seems to have had a clear idea of what this article should look like and he moved from a statement of the human right to personal property, to the right to a share in profit-making enterprises, to the possibility of private ownership of the modes and means of production, to the standard clause prohibiting expropriation without just remuneration. Of all the drafts Humphrey had in front of him the one that seems to have helped him most at this point is the one drawn up by the Inter-American juridical Commit­ tee and submitted by the delegation from Chile. The first two paragraphs of that draft stated that (1) "Every person has the right to own property," and (2) "The state has the duty to co-operate in assisting the individual to attain a minimum standard of pri­ vate ownership of property based upon the essential material needs of a decent life, looking to the maintenance of the dignity of the human person and the sanctity of home life" (W.Sjp. 15). This "minimum standard" of property ownership was aimed at the maintenance of the dignity of the human person, a decent standard of living, and at the sanctity of the home. Humphrey took this word "personal," with its estab­ lished socialist meaning, and inserted it into the first paragraph of the Chilean draft, thereby capturing the entire intent of the second paragraph of that draft as well. For if "everyone has a [human] right to own personal property," then, by the principle of the correlation of rights and duties, the state has the duty to help people get that kind of property, which is what the second paragraph of the Chilean proposal said. .

.

The fact that Humphrey inserted the adjective "personal" into the first paragraph

H22 means that he wanted to accentuate that there are different kinds of rights to property. There is everyone's "right to own personal property" of H22's first para­ graph and then there are the other kinds of property rights spelled out in the second and third paragraphs. Many Latin American and Communist constitutions contained this right to personal property. The amended Mexican constitution of 1942 marked out the same kind of Chilean minimum in its Article 23, where we read that "the laws shall determine the property that shall be inalienable, [namely] that which cannot be subjected to real taxes or attachment and which shall be transmissible by deed of in­ heritance." The constitution of Paraguay also spoke of "inalienable" property as that of

Privacy and Different Kinds of Property

141

which was "not subject to seizure, and exempt from all public burdens." Article 10 of the Soviet constitution stipulated the same kind of right, but instead of calling it "pri­ vate" -which would have been a gross misnomer- referred to it as "personal" prop­ erty. It stated that the "rights of citizens to personal ownership of their incomes from work and of their savings, of their dwelling houses and subsidiary household economy, their household furniture and utensils and articles of personal use and convenience, as well as the right of inheritance of personal property of citizens, is protected by law." 27 One way we can tell that Humphrey saw a crucial difference between personal property and the other kinds of property rights is that in the second and third para­ graphs of H22 he gives the state a key role in the regulation and definition of the prop­ erty right involved, which is something he does not do in the first paragraph. He might even have thought, as did Santa Cruz, that, strictly speaking, only the right to own personal property is a human right. H22's second paragraph states: "His right to share in the ownership of industrial, commercial and other profit-making enterprises is gov­ erned by the law of the State within which such enterprises are situated" (AC.l/3/p. 8). We find here the same socialist presumption as we found in H39 on the right to a fair share of the national wealth. That presumption is that workers or employees have a preexistent right to share in the collective ownership of profit-making enterprises. The state is supposed to implement a worker's right to his or her fair share in the profits of the firm, factory, or office. The state does not create this right, it merely regulates the details. In H22's third paragraph Humphrey went a step further, for there the action of the state is not merely regulatory, it is constitutive of the property in question. H22(3) states: "The State may regulate the acquisition and use of private property and determine those things [if any] that are susceptible of private appropriation." Since the property of H22's third paragraph is not the same as the "personal prop­ erty" of its first, which included one's home and other essentials for decent living, we must suppose that in the third paragraph Humphrey had in mind the private owner­ ship of the modes and means of production. In other words, in H22's third paragraph he is referring to the same kinds of profit-driven enterprises as in the second, ex­ cept that now they are privately owned. And that, Humphrey felt, was a question for each state to decide as it saw fit. As a good socialist would, in H22's second paragraph Humphrey lays down the presumption that employees will share in the ownership of industrial, commercial, and other profit-making enterprises for which they work. We do not find the same presumption in the third paragraph, which presents private ownership as totally a matter of state regulation. Humphrey's presumption of collective ownership and profit sharing fits the Latin American constitutional tradition within which (for this part of the Declaration) he worked. In addition to the Chilean submission already quoted I note that Article 127 of the Bolivian constitution stated that the "law shall determine the system of partici­ pation of employees and workers in the profits of concerns." 28 Also, the Brazilian con­ stitution stipulated there to be "obligatory and direct participation of the worker i� the profits of concerns, under the terms and in the form determined by law" (p. 330). The Cuban constitution also stated that "the formation of co-operative enterprises" was to be regulated by law (p. 175). The above exposition shows that we can read the paragraphs of Humphrey's main article on property, H22, in a descending order of moral strength for human rights.

I 4Z

ChRpter 4

First, everyone has the human right to own personal property, then everyone has the right to share in the ownership of profit-making enterprises, hut such ownership is to be regulated by law. Lastly, should the state be so inclined, it may grant its people the right to the private ownership of the modes and means of production. In his fourth paragraph, Humphrey repeated the standard constitutional feature that if and when the state expropriates a piece of property it may not do so "without just compensa­ tion." 29 In his first rewrite of H22 Cassin changed the order of the paragraphs and re­ moved Humphrey's presumption of the priority of collective ownership over that of private ownership of profit-making enterprises. He made the fourth paragraph on just compensation second and switched H22's second and third paragraphs around. In addition, he pulled the collective aspect of that profit-sharing right into the new third paragraph, as follows: "The right to ownership . . . in profit-making private or col­ lective enterprises is governed by the law of the State within which such enterprises are situated" (W.2/Rev.2). This text gives equal status to private and shared owner­ ship of profit-making enterprises and in so doing removes Humphrey's presumption of the priority of collective rights. It takes away the uniqueness of what used to be Humphrey's paragraph on workers' rights to share in the profits of the enterprises for which they worked. Cassin's colleagues pointed out to him that the profit-sharing right of Humphrey's old third paragraph was now covered by the phrase "private or collective enterprises" in Cassin's new third paragraph. Cassin saw the point and dropped his own fourth paragraph from the article (SR.S/p 10). This was the beginning of the drafters' policy not to tip the scales in the Declaration toward either capitalism or socialism as a way of organizing a national economy, just as long as a certain minimum was met. Cassin's collapse of Humphrey's second and third paragraphs into one paragraph did leave intact, however, the key distinction between the human right to own per­ sonal property in the first paragraph and the rights to (collective or private) ownership in profit-making enterprises regulated by the state, as stated in third paragraph, the second one prohibiting arbitrary expropriation. All the delegates understood this dis­ tinction and at this point wanted it in the Declaration. Wilson of the U.K. wanted to delete the adjective "personal" from the first paragraph, for he "felt that it was im­ possible to go beyond saying, as a statement of principle, that a person should have the things he needs in order to carry on and to enjoy his everyday life." 80 Santa Cruz responded that "it might be possible to arrive at a formula which would unite the different opinions, in the sense that everyone has the right to personal property in certain cases and that general property is subject to the interest of the community" (AC.l/SR.Sfp. 9). Wilson had also said this, except for the fact that he did not link this conception to the use of the adjective "personal." 81 Charles Malik of Lebanon stated that "in his opinion the right to [personal] property was a fundamental right which must have a place in the Bill, and certainly in the Declaration. He felt that it was self­ evident that man cannot live without personal property; that this particular right was as essential and as fundamental as almost any other right. He pointed out that the unlimited character of ownership of private property could not he considered a fun­ damental right, but that even the most socialistic constitutions refer to the fact that a man must have something which is his own.'' 82 .

. · .

.

Privacy and Different Kinds of Property

I 41

Mter Cassin had dropped the paragraph about workers' rights to share in the profits of enterprises, the First Session of the Drafting Committee accepted the other three paragraphs without voting on them. Having listened to some last minute rum­ blings and complaints, chairman Roosevelt said that "if the Committee was agreeable the text would be sent forward as it was, with the comments made by the represen­ tatives of the United Kingdom and the United States" attached (SR.13jp. 18). These comments spelled trouble ahead for the distinction between personal property and other kinds of property rights. The U. S. delegation wanted to see the adjective "per­ sonal'' deleted "because of its technical meaning (chattels as distinguished from real property) in English-American law." 88 And the Australian and British delegations went on record as preferring the deletion of the entire article.34 In the Working Group of the Second Session, to which H22's first paragraph was sent, the Panamanian delegation submitted a proposal according to which "everyone has the right to own property under general law" (AC.2/SR.8jp. 15). Since it used no adjective before the word "property," this proposal in effect deleted the right to own personal property from paragraph 1 and collapsed that right into whatever right the state saw fit to prescribe "under [its] general law." While the Communists might have been expected to defend the retention of the right to own personal property- support that would have been in keeping with Article 10 of the USSR constitution-Alexandre Bogomolov, the representative of the USSR, did not do that. He instead assumed that the lack of a qualification with the word "property" meant that the property involved was the private ownership of the modes and means of production. This supposition led him to make the observation that "the varying economic systems in different coun­ tries should be borne in mind. He instanced the social structure of the Union of Soviet Socialist Republics where ownership of property was largely on a cooperative basis. It was impossible to think exclusively in terms of purely personal property for the pur­ poses of this Article." 85 Adamo of Panama remarked "that the same view had been expressed before the American Institute of Law by a Soviet Representative which had been met by the formula 'everyone has the right to own property under general law' " (p. 3). Bogomolov agreed that "it would be preferable to find some abstract formula which made allowance for different social systems." This was done, and by a vote of 5 to 0, with 2 abstentions the Second Session adopted the following text: "Everyone has the right to own property in conformity with the laws of the state in which such property is located. No one shall be arbitrarily deprived of his property" (85/p. 28). This text collapsed the transcendent human right to property into a legal right to own whatever property the state prescribed or found feasible. Should that be nothing, this version of the article does not forbid that. This problem was pointed out by the South African government when it returned the questionnaire it had been sent. It told the Commission that if it was "the intention to say that a State may not deprive any person of all rights to own property it would be desirable to re-word the article" (85/p. 28). This was indeed the problem, and it led to a telling debate in the Second Session of the Drafting Committee. This Second Drafting Session met a month after the Organization of American States met in Bogota, Colombia, where they had adopted the American Declaration of the Rights and Duties of Man (E/CN.4j122). Santa Cruz of Chile recalled the text of this Bogota Declaration. Echoing the South African observati on , he "thought that

1 44

Chapter 4

article 14 in its present form was wrong, because a right was not affirmed if it was stated at the same time that it could be suspended by law. The question to be decided was whether ownership of property was an essential and fundamental right. The idea of ownership of property was regarded from different angles in different countries; it was necessary to find a minimum common denominator or, if that proved impos­ sible, to abandon the question altogether" (SR.38fp. 3), That was indeed the crux of the problem. A human right is supposed to be imprescriptible. That is, the right must have some content- however much or little -which is not the result of any kind of prescription process, state or otherwise. Roosevelt of the U.S. "thought that the text submitted by the Chilean representa­ tive appeared to limit the ownership of property to the level necessary to satisfy essen­ tial needs. That raised a difficulty; who would define exactly these 'essential needs'? She would prefer the text suggested by the United Kingdom representative," which left the matter of limits open (p. 3). Santa Cruz responded that "the text drawn up at Bogota did not limit the right to own property; it merely established to what extent it was to become an essential right, and each country would be free to determine rea­ sonable limits in that connexion" (p. 3). This plea led to a genuine change of mind on the part of the United Kingdom representative. Wilson, who had been opposed to the Bogota text, now "agreed with the arguments put forward by the Chilean representative. As he had not before him a copy of the proposed text, he made reservations as to the wording, but accepted the principle, which appeared to him correct" (p. 3). Cassin objected that "the formula · suggested by the Chilean representative was likely to displease some countries; it was, therefore, necessary to state that the ownership of property should be subject to the legislation of each country" (p. 4). Santa Cruz "regretted that he could not agree" with these views. "The purpose of the declaration, which was to establish essential rights, should not be forgotten. If States were granted the right to legislate on the matter, all that remained would be an abstract right." He thought that the Bogota article was "the most suitable" compromise. Remaining consistent with his earlier opposition to any kind of absolute right to even personal property, Bogomolov of the USSR said he agreed with the French rep­ resentative in "that property should be subject to the laws of the land; he thought that this principle should be accepted by all. It seemed to him difficult to impose a system of property ownership, as each State might have a different conception of the matter. In Soviet countries common ownership was the basis of the regime, and such coun­ tries would be opposed to the adoption of any other system" (p. 4). Ignoring the fact that the Bogota text was silent on the manner in which a national economy should be

organized, he offered the thesis that was to dominate the next drafting stage of this article, namely, that "it was necessary to retain the idea that ownership applied alike to private ownership and common ownership, in conformity with the laws of the dif­ ferent States" (p. 4). Santa Cruz felt his position was being misrepresented. "He had not spoken in favor of any special system of ownership, but had simply said that the present text of the article established no such right. He thought that the conception held by the USSR fitted perfectly into the framework of the text which he proposed." He believed simply that "it was possible to establish that at least part of the property held should

Privacy and Dlrferent Kinds of Property

145

be held as of essential right" (p. 5). Mter a Chinese amendment to delete the entire article was rejected by 4 votes to 2, with 2 abstentions, the following text was adopted by 3 votes to 2, with 3 abstentions: "Everyone has the right to own such property as meets the essential needs of decent living, that helps to maintain the dignity of the individual and of the home, and shall not be arbitrarily deprived of it." 8 6 This Bogota version of the article on property ownership was rejected in the next drafting stage, which was the Third Session of the Commission. No direct vote was taken on the Bogota text because a small subcommittee proposed quite a different version of the article, which was accepted (see 4.4). Because the Third Session chose not to accept the recommendation of the Sec­ ond Drafting Session, the Cuban and Chilean delegations sought to resurrect slightly modified versions of the Bogota text in the Third Committee stage. The Cuban dele­ gation submitted the Bogota text plus a bracketed phrase that had become popular in the Third Session: "Every person has the right to own such property [alone as well as in association with others] as meets the essential needs of decent living and helps maintain the dignity of the individual and of the home" (A/C.3/232). The Chilean delegation proposed the text that had been adopted at the Second Session of the Drafting Committee, but rejected by the Third Session (AfC.3/249). When the Cuban proposal was voted down by 23 votes to 3 with 13 abstentions, Santa Cruz also gave up the fight and withdrew the Chilean proposal (p. 387). These rejections allow us to summarize the case Latin American socialists had been making. Pavlov of the USSR objected to the Cuban/Bogota phrases "the essential needs of decent living" and "maintain the dignity of the individual and the home." His argu­ ment was that if "such details were included, then the article should also state that the right to own property should not interfere with the general welfare" (p. 381). That, of course, could be done. The real Soviet objection, as we have seen, was that this version did not give enough or any power to the state to define the nature of property or its limits. This was the very reason why Santa Cruz wanted to go back to the Bogota text. As he saw it, the text that had come from the Third Session did not make clear the ex­ tent to which the right to ownership was a fundamental right. To say with the Bogota text that "everyone has the right to own such property as meets the essential needs of decent living, that helps to maintain the dignity of the individual and of the home" would be, he said, "to define how much property should be considered an inherent right of the individual. Ownership of anything more than that might not be consid­ ered a basic right. Moreover, the word 'property' as used in the Chilean amendment could be interpreted to mean property owned either privately or collectively" (p. 381). This last point was made explicit in the Cuban proposal that I mentioned in the pre­ ceding paragraph. Cassin understood full well what the Latin Americans wanted. He pointed out that the Chilean amendment "had endeavored to deal with the essence of the problem in defining to what extent the right to own property could be called a fundamental right. All countries recognized the right to a minimum amount of property, without which a man lost his dignity and self-respect. The concept of individual property, how­ ever, varied in different countries and an adequate definition of property would re­ quire a more explicit draft than those of the Cuban and Chilean delegations" (p. 385). The fundamental criticism of the Bogota text here is that it did not go beyond spelling

1 46

Ch•pter 4

out the human right to a required minimum. Fernand Dehousse of Belgium opposed the Chilean and Cuban amendments because the concepts of "essential needs" and "decent living" were vague, he said (p. 383). Similarly, Aquino, the Philippine dele­ gate, could not support the Chilean and Cuban amendments "for they all contained ideas that were not clear and that could easily be misinterpreted" (p. 384). Karim Az­ koul of Lebanon thought the Chilean and Cuban amendments were a good idea, but they "were not clear and did not seem to imply the right to own property above that minimum" (p. 385). Santa Cruz responded to these criticisms with the observation that the Cuban and Chilean amendments "merely laid down what should be considered the fundamental human right in regard to property." The vagueness of some phrases fit the fact that the Declaration "was a statement of general principles which would be interpreted by the peoples of the world according to their varying concepts" (p. 386). The problem he faced was that his colleagues were not willing to spell out the internal limits to the right to property. They did do this sort of thing in Article 26, where they had stated that the right to an education is compulsory and free at "the elementary and fundamental levels." Presumably, anything beyond that is not a human right in the same way. Simi­ larly, the Declaration says in Article 25 that everyone has a right not just to any kind of standard of living, but only to one that is "adequate for the health and well-being of himself and his family." I see the Bogota initiative as an attempt to do the same thing for the right to property. It is tempting to explain the different treatment of prop­ erty as due to the North Atlantic bias in favor of its being unlimited. That was only a minor factor, for we will see that the great m�ority of the drafters did not believe in unlimited property rights. They only disagreed on where to place those limits, either in the article on property itself or in other articles of the Declaration. The rejection of the Bogota text was a prelude to the decision not to place the limits in the article itself. 4 . 4 "Alone as Well as In Association with Others"

Not counting the Chinese proposal to omit all mention of property rights in the Dec­ laration, the Third Session of the Commission had the following four options with re­ spect to this provision. First, it had received the Bogota text from the Second Session of the Drafting Committee. Its strong point was that it pinpointed a property right to the material goods that are essential for decent Jiving and human dignity. By setting aside a human right to minimal property requirements this text sought to separate out a lowest common denominator that different schools of thought might agree were essential to human well b ein g . Its weak point was that it did not say anything about other kinds of property rights, such as private or collectively owned profit-sharing enterprises, which had been part of earlier drafts of the article. That gave it the ap­ pearance of limiting the right to property to just that minimum required for decent living. Also, it was thought to contain vague phraseology. It had the support of the Latin American delegations. Second, the USSR delegation proposed early in the discussion that the Commis­ sion go back to some version of the Geneva draft of the Second Session of the Com­ mission. Pavlov said his delegation "favored adoption of the original Geneva draft, which stated that everyone had the right to own property in accordance with the ·

Privacy and Different Kinds of Property

147

laws of the State in which such property was situated. That formulation was especially desirable for it recognized that the national legislation of various countries provided for various and different systems of property ownership ." To make that point explicit, Pavlov wished to amend the Geneva text by adding to it the phrase "either alone (indi­ vidually) or in community (association) with others" (SR.59fp. 3). This USSR proposal did two things. As had the Geneva text, it placed all property prerogatives in the hands of the state where the property is located. Second, to assure that different kinds of economic systems would be allowed by the Declaration, Pavlov suggested the addition of the phrase that became "alone as well as in association with others." He wanted th e Declaration's article on property to openly acknowledge both the capitalist and communist way of organizing a national economy. He pointed out that "the amended article would also cover what was known in the USSR as p ersonal property, which differed from private property, as understood in Western countries, because it was based on income earned from collective work. It would also include property owned by mutual organiz ations , corporations and various other groups in Western countries. Thus, no particular property ownership would be favored by the article" (p. 3) . While the Pavlov proposal made it look like both capitalist and socialist systems would be allowed, a crucial question was who or what would make the choice between the alone and in-association-with-others modes of ownership. Was it the individual or the state? If it was the state and if that state made the word "alone" refer to just per­ sonal property then this proposal would bar the pr ivate ownership of profit-making enterprises. Since his proposal was an amendment to the Geneva text, Pavlov was thinking of this choice of modes as having to be made "in conformity with the laws of the State in which such property is lo cated," as the Geneva text put it (E/600). In short, a state cou ld outlaw capitalism and the private ownership of profit-making enterprises. While the positivism of the Geneva text had not been a favorite of the Commission (it was replaced by the Bogota text), this newly intro duce d clause ("alone as well . . . ") was received positively. The upshot was that the Third Session took the power of making the choice out of the hands of the state, which is where Pavlov wanted it, and placed it in the hands of the individual . Omar Loufti, the Egyptian delegate , said that "while he would have liked to sup­ port the Drafting Committee's text . . . he would accept the proposal of the USSR to retain the Geneva text in the interest of unanimity" (SR.59jp. 3). Wilson of the United Kingdom said he agreed with the introduction of the choice phrase and pointed out that "nothing in the United Kingdom version [see be low] precluded common owner­ ship" (p. 4) . Earlier he had already articulated the view that if "any statement about private prop er ty was to be in an international document mention must also be made of the other form of property. The Geneva draft had said correc tly that property regimes were de termined by the laws of the individual countries. The Drafting Com­ mittee, however, had deviated from that line. The Declaration should state that every man could have property alone or collec tively. Represen tatives should not ask the im­ possible of each other. The USSR could never agree that only private property could be gu aran teed " (SR. 49jp. 8). This stance embraced both points Pavlov had made, that both capitalism and socialism should be accommodated and that the choice of which system was to prevail was to be made by each state . Wilson's comments indicate that

1 48

Chapter 4

his delegation had come to view the Bogota text as too l imiting , which leads us to the third option before the C om mission . The United Kingdo m and Indian delegations submitted the following substitute text: "Everyone is entitled to protection from unreasonable interference with his prop­ er ty" (p. 99). Instead of backin g the Bogota text, as we saw it had done in the Drafting Committee , the United Kingdom now joined India in submitting this text. Wilson ex­ plai ned that this text reduced the problem to "its essence by assuring everyone free­ dom to enjoy ownership of property without interference . . . . [It] avoided specifying who could own such property, how much and what type of prop erty could be owned, as those question s were adequately contained in domestic legislation" (SR.59fp . 4). As this expl anation indicates, this text was pri m arily aimed at the enj oymen t of prop­ erty and not at its acquis ition . In fac t , it avoided all questions of who could own how much of what type of property and left all of those issues for domestic systems to de­ termine. This j oint proposal is basical ly a fo rerunner of the second sentence of Article 17, which does not grant the right to ownership in the acquisition sense, but regulates its use, once it has been acquire d under the terms of the law. The United States, among others, favored this "broader" U.K.-I ndia text (SR.59fp. 2). Both Michael Klekovkin of the UKSSR and Afanasi Stepanenko, his colleagu e from the BSSR, argued that the U.K .-India text "lacked clarity and precision." They backed the USSR proposal because both the phrase "decent living" in the Bo got a text of the Drafting Committee and t he ph rase "unreasonable interference" of the U.K . - India text were "debat able concepts." They said they co uld go along with the U.K.-India text, but "strongly favored the original Geneva text as amended by the representative of the USSR." s7 As a fourth option the Commission had before it a French proposal that read: " Property is a right . Its re gulation shall conform with the laws of the country where the property is situated. No one shall be arbitrarily deprived of his p roperty" (82 .Add.Ifp. 4). The real difference between this text and the U.K.-India and the USSR proposals is that it takes the right to own and acquire property out of the domestic legal realm and states it up front as a pre j uri dic al or an tece dent moral right . It has this feature in common with the Bogota text, about which Cassin had some good things to say. He pointed out that the Bogota version of the Drafting Committee "defined the fundamental right to own property �ith certai n limitations," but that the other sub­ missions all "circumvented a p recise statement of the problem by setting forth the incol)trovertible fact that no one could be arbitrarily deprived of the right to own proper ty " (SR.59fp. 2). He added later that he found the U.K.-India text "unsatis­ factory" because "it failed to state th e right to proper ty ownership incontrovertibly" (p. 5). Thus for the French p osition two things were "incontrovertible," that everyone has the right to own property ( " its regulations" to be determined by the country where the p roperty is located) and that onc e owned it cannot be taken away in an arbitrary manner. The first sentence of the French text shared with the Bogota text the idea that property is a right , but it differs from that text in that it does not go into any further details . The second sentence about the prohibition of arbitrary expropr iation it shares with the U.K.-India text, though Cassin did not much like the phrase "unreasonable interference" (p. 5). Chairman Roosevelt proposed a small drafting subcom mittee c onsisting of the

Privacy and DIHerent Kinds of Property

t 49

U.K., France, the USSR, and the U.S. The French delegate objected to this idea, but in the end he relented and took the assignment. This group produced the following two-paragraph article: "1. Everyone has the right, alone as well as in association with others, to own property (in accordance with the laws of the country where the prop­ erty is located.) 2. No one shall be arbitrarily deprived of his property" (E/CNA/107). The chairman pointed out that the group had not been unanimous about the phrase in parentheses and that it would "therefore be put to a separate vote" (SR.6lfp. 2). Not counting that parenthetical phrase, this article is (with a minor stylistic change) the final product. We should therefore stop, list the elements in the article, and see what they mean. First, the article stipulates up front that everyone has the right to own property. This is the "incontrovertible," preexistent or antecedent right that everyone has as a human being to own and to acquire property. It was carried over from the Bogota and French texts. This "ownership" must be seen as including the right to acquire prop­ erty. It cannot simply be the right to use and enjoy one's property after it has been acquired. In that case the second sentence of the article would have sufficed, for it ad­ dresses that kind of post-acquisition protection. Second, this antecedent ownership is of a dual kind. Everyone, as a human being, has the right to own property alone or, as one chooses, to own it in association with others. Third, once such property (in either mode) has been acquired, the second sentence says that it may not be arbitrarily taken away. This is a standard constitutional feature that protects people in the use and en­ joyment of whatever property they acquired under the terms of the law. It was a part of all the options and the total content of the U.K.-India text. Pavlov insisted that the parenthetical clause was "absolutely necessary" and he also proposed to insert after the word "arbitrary" the explanatory comment "that is, contrary to the laws" (SR.61/p. 2). Each of these issues raised the question of the pre-political and pre-juridical character of the rights in question. As I explain the re­ jection of both of these Soviet proposals, I shall also have the opportunity to explain the dual character of the property involved. It is this dual character that makes the Universal Declaration condone both the capitalist and socialist ways of organizing a national economy. The second sentence of the article returned by the small subcommittee stated: "No one shall be arbitrarily deprived of his property." Pavlov had proposed the gloss "that is, contrary to law" because the word "arbitrary" "lent itself to different interpre­ tations" and he wanted to avoid "any misunderstanding" (p. 3). The USSR proposal meant that any expropriation that was done according to law was by definition not arbitrary and therefore justified. The drafters turned down this interpretation. They believed that there is such a thing as having a moral point of view beyond the law, a point of view that in certain circumstances could make acts of expropriation morally arbitrary and therefore not justified, even though they were done in accord with do­ mestic law. Cassin disagreed with the Soviet idea of explaining "arbitrary" to mean "illegal" because the Commission had "wanted to combat such [arbitrary] action, even if it were given legal form" (p. 4). The chairman supported this contention since "what the Commission was trying to prevent" was the deprivation of property by "both arbi­ trary and legal means." Pavlov responded by stressing again that "the word 'arbitrary'

I so

Ch11pter 4

referred to that which was against the law; the USSR amendment was therefore only intended to clarify that meaning. The Hitlerite concept which treated arbitrary action as legal would not be accepted by democratic states; it would be wronging them to think that they might include in their legislation any provisions making arbitrary action possible " (p. 5). Pavlov's co11eague from the BSSR brought the special meaning of "democratic" out in the open and thereby helped doom Pavlov's proposal. Stepa­ nenko said that the Commission "should take the word 'arbitrary' to mean everything which was not in conformity with the laws of democratic States, i.e., of States which traditionally defended the interests of the people" (p. 5). In this context the word "arbitrary" was to mean whatever it was that was against the laws of Communist states, which prohibited private ownership of the modes and means of production. The chairman "pointed out that the English word 'arbitrary' had the connota­ tions of ir:Uustice. The purpose of the Dr.afting Sub-Committee's text was to protect everyone from being unjustly deprived of his property. It was not impossible that gov­ ernments might sometimes act arbitrarily, and it was that possibility that had to be prevented" (p. 6). The USSR clause explaining that "arbitrary" meant "contrary to the laws" was rejected by 9 votes to 4 with 1 abstention. The second paragraph as pro­ posed by the subcommittee-which is exactly what we have in the final product-was adopted by 10 votes to 4, the whole article being adopted by 9 votes to 4. In the Third Committee Pavlov reintroduced his proposed gloss for the word "arbitrary" as meaning "legally deprived of this property" (E/800). The suggestion was again rejected, this time without any discussion and by a vote of 23 to 8 with 7 absten­ tions (p. 390). Since it was the consensus of the delegates that the human right to these other, nonpersonal types of property was not an unlimited kind of right the issue was how the Declaration should invoke those limits. They could be inserted by the adoption of the parenthetical phrase "in accordance with the laws of the country in which the property is located" in the article on property itself. This had been done in Geneva and was being proposed by the USSR delegation. Or they could be affirmed indirectly because of the presence in the Declaration of what became Article 29, which at that time stated that "in the exercise of his rights everyone is limited by the rights of others and by the just requirements of the democratic state." 98 Wilson of the U.K. opposed the parenthetical clause because he though t it "un­ necessary to re-affirm the obvious fact that property rights were subjec t to the laws of the country where the property was situated. That was true of every country in the world. Moreover, the general limitations of arti cle 2 [29] applied to all of the articles of the Declaration, including article 14 [ 1 7 ] " (SR.6ljp. 3). Presumably, those limits would guard against capitalist excesses in the ownership of property and against ex­ ploitation contrary to the public good. Cassin also was opposed to the p arenthetic al clause, even though it matched the one in the French proposal, according to which property rights had to b e "in conformity with the laws of the State where the prop­ erty is situated" (82/Add.1jp. 4). The intention of both these clauses had been to accommodate different systems of property. Cassin though t that the clauses were now "unnecessary," since the Drafting Sub-Committee had introduced "a new element by mentioning the two forms which property rights might take, thus ensuring the right of States to choose either form" (SR.6ljp. 3). Cassin located the prerogative of making

Privacy and Different Kinds of Property

t 5t

the choice between the alone and the association mode of ownership in the hands of the state. This made the "or" involved in the choice an exclusive one. A state could pick either its own capitalist mode or its own socialist mode of organizing its economy. However, it turned out that this interpretation was based on a faulty French text and was not what the small Sub-Committee had intended to say. Roosevelt, the chairman and U.S. delegate, supported the deletion of the words in the parentheses "since they might give rise to confusion; furthermore they were un­ necessary in view of the provisions of article 2 [29] ." She then gave a different interpre­ tation of what the text means. "In reply to a question by Mr. Azkoul, the representative from Lebanon, the Chairman explained that according to the Draft Sub-Committee's text 'everyone had a dual right to own property, either by himself, or in association with others, and these two forms of ownership were not mutually exclusive' " (p. 4). The minutes then record: "Mr. Cassin (France) agreed that the French text was not as clear on that point as the English. He proposed that the French text be changed from reading soit seul, soit en collectivite to aussi bien seul qu'en collective." This changed the "or" involved from an exclusive "either . . . or . . ." to the inclusive notion of "as well as." The Commission formally adopted this change in the French text and thereby sealed the dual ownership interpretation already evident in the English phrase "as well as." Pavlov saw the vote going against the parenthetical clause and by implication against the reinstatement of the Geneva text he favored. He pressed upon his col­ leagues the fact that "the unanimously adopted Geneva text contained a reference to laws." He "failed to understand why this reference should have raised doubts since then. The USSR concept of property was different from that of other countries; ex­ ploitation of property was considered unjust and illegal in his country. The Union of Soviet Socialist Republics was not trying to impose its view upon other nations, but it attached great importance to the limitation clause between the parentheses, for this clause would prevent the views of others from being imposed upon it" (p. 5). The relevant paragraph stated that "everyone has a right, alone as well as in asso­ ciation with others, to own property (in accordance with the laws of the country where the property was located)" (SR.6ljp. 2). Pavlov may have been right, for without the parenthetical clause everyone has, as the above citation from Roosevelt showed, a dual right to property. The article does not say how much of each kind of property an economy has to include, as long as both modes are allowed. By granting this dual right the article does, it seems, bar any state from legislating either mode exclusively. Since there is no such thing as a pure capitalist, market driven economy the right to ownership in association is satisfied wherever roads, parks, and the like belong to the public at large. Given the drafting history of this article we will have to interpret the "alone" mode as including both the right to own personal property as well as the right to private ownership of certain profit-making enterprises. That being so, Article 17 of the Declaration seems to exclude a Communist way of organizing a national economy. Pavlov saw that and therefore strenuously objected to the deletion of the parentheti­ cal clause. Since all forms of socialism allow for the private ownership of the modes and means of production of at least certain enterprises, they are all compatible with Article 17. Communism is not, because (aside from personal property) it legislates the common mode exclusively. The delegates understood these implications of the parenthetical clause and

1 52

Chapter 4

right after Pavlov's reference to the exploitation of property in "other countries" Luc Steyaert, a representative from Belgium, said he favored the deletion of the phrase "for the same reason as those brought forward by the representatives of the United Kingdom and of France" (SR.6ljp. 5). Stepanenko supported the USSR delegation and argued that "the Commission was only called upon to draft the article in such a way as to take into account the interests of all States, in a spirit of complete coopera­ tion. It was [therefore) essential to retain the clause between brackets if the principle of national sovereignty, laid down in the Charter, was to be respected" (p. 5). Since a human right is one that people presumably have even over against the sovereign state in which they live, this was indeed the issue to be voted upon. As they had done with all other such proposed references to the powers or duties of states, the members of the Third Session "decided by eight votes to four, with two abstentions, not to re­ tain the part of the sentence in parentheses" (p. 6). The rest of the first sentence was adopted by 9 votes, with 4 abstentions. 4 . 5 A Minimum Within a Larger Framework

We have just seen that the Bogota text (which had been accepted at the Second Ses­ sion of the Drafting Committee) was rejected in the Third Session and that a very general article of just two short paragraphs was put in its place. Mter the Bogota text was rejected in the Third Session the delegations of Panama and Cuba sought to revive a version of that text in the Third Committee and failed in these attempts. What the Third Session adopted was (with very minor stylistic changes) to be the final product. Wejust saw that there was quite a bit of discussion in the Third Session on how to place limits on the right to property. Several amendments to the Third Committee pursued this matter of limits and these, too, were rejected. These later rejections will help sum­ marize the findings of this chapter. They confirm that the drafters of the Declaration wanted to hold to the middle of the road between endorsing a capitalist or a socialist way of organizing a national economy, as long as the appropriate limits were observed. The Third Committee received from the Third Session these two paragraphs: (l) "Everyone has the right to own property alone as well as in association with others"; and (2) "No one shall be arbitrarily deprived of his property" (AjC.3/288jRev.l). The first paragraph of this article gives the impression th3:t the right to property either alone or in association has no limits other than those spelled out in Article 29. As they had done in the Third Session, several delegations sought to (re)introduce limits on property holdings within the text of the article itself. These were of two kinds. The first kind wanted to make the right to property subject to the laws of each state. Thus, the USSR delegation resubmitted its proposal to include in the first para­ graph the phrase "in accordance with the laws of the country where such property is situated." The delegation of Panama wanted to do the same thing in a more subtle fashion by adding to the first paragraph the clause "in accordance with general law" (A/C.3/280). The second kind wanted to limit the ownership of property by having it meet a criterion of social utility or public interest. The Belgian delegation sought to do this by rewriting the first sentence as follows: "Within the limits of public inter­ est, everyone is entitled to own property, alone as well as in association with others"

Privacy and Different Kinds of Property

t 53

(AjC.3J325). The Haitian delegation wanted to add a third paragraph or sentence say­ ing that "This right shall be exercised in conformity with public interest" (p. 383). Pavlov defended his reintroduction of the parenthetical phrase in the same terms as he had used in the Third Session. A "specific reference to the laws of the country concerned" would safeguard each country's sovereignty in deciding these matters, he said. He then confirmed that the point of locating the choice between the "alone" and "in association" modes in the hands of the state was to disallow for the possibility of private ownership of the modes and means of production. Pavlov took exception to Cassin's remark that all countries allow for some form or other of private property. "It was," he said, "true that the individual could own his own house and personal belong­ ings, but it wa:s considered personal or individual, rather than private property. . . . The expression 'private property' was not liked in the Soviet Union owing to the fact that it could be acquired in other parts of the world through the exploitation of the masses. It was wrong that some individuals should own a great deal, while others starved, and therefore, the mines, transportation services, banks, and so on, could not be privately owned in the Soviet Union" (p. 387). A few moments later he summed up this line of thinking with the observation that "private property was too frequently in conflict with the public interest" (p. 388). For this reason the Communist delegations could not accept the idea of a preexistent dual right to property as explained in the preceding section. Only the state reference introduced by Pavlov could save the Com­ munist system from being ruled in violation of the Declaration. While the Communists could not do without this special clause, it was unac­ ceptable to many of the more or less capitalist delegations. Not wanting to insert a reference to state laws in the article and not wanting to go back to the Bogota version, most drafters opted for what they called "the basic text" of the Third Session. For instance, Eleanor Roosevelt thought the USSR proposal made the right to property "meaningless and the proclamation of it in an international document quite useless" (p. 381). But she also did not want to go back to the Bogota version. "Referring to the Cuban and Chilean amendments," which went back to the Bogota minimum, "she said those proposals would imply a limitation on the right to own property which her country would find undesirable" (p. 382). She did not mean that she wanted the right to property to be limitless, but that the Declaration should assert the right to private ownership as well, which it does in what she dubbed "the dual ownership" provision adopted in the Third Session. This reading is supported by her later comment that the limitations of Article 29 apply to property ownership (p. 387). Similarly, F. Corbet of the U.K. "could not support the Cuban or Chilean amend­ ments as there was almost always danger that the underlying meaning would be dis­ torted if the fundamental human rights were to be described in too great detail" (p. 382). Nor was she in favor of the limiting clause proposed by the Soviet delega­ tion. By elimination, that left her delegation also with a preference for the basic text. Fernand Dehousse, the Belgian delegate, opposed the USSR clause because "constant reference [to] national laws . . . would stabilize the status quo in each country and no progress would be made." He felt that "a similar lack of precision made the Panama­ nian amendment unacceptable" (p. 383). Benigno Aquino of the Philippines struck a note of transcendence and by doing

I 54

Chapter 4

so explained what the other delegations meant by calling the Soviet proposal "use­ less." He argued that the USSR proposal "would fix the stamp of approval on existing property laws, whether they were good or bad. A deplorable situation, such as existed in the Union of South Africa, for example, where arbitrary laws prevented any but members of the white race from own ing certain types of property would th us receive UN sanction" (p. 384). Azkoul of Lebanon made the same point when he backed up the "objections to the Panamanian and USSR amendments" with the observation that "the laws of the country should no t violate the r ights proclaimed in the Declaration ." Most non-Communist delegations favored the basic text of the Third Session, as was explicitly stated by the representatives of New Zealand, Iran, China, and Brazil.89 This sentiment for the basic text of the Third Session carried the vote. The USSR amendment (as attached to a Belgian amendment) was rejected by 25 votes to 11, with 6 abstentions (p. 389). Right after that the more subtle Panamanian amendment was rejected by 20 votes to 8, with 7 abstentions. This upheld what the Third Session had done and helps us see that the drafters did not want a state reference in the article because they wanted their document to have a certain moral transcendence. The other way of placing a limit on property rights was to bring th at external moral standard op enly into the article by, for instance, subjec ting property ownership to the test of social utility or of the general welfare. Defending that point of view, Emile Saint-Lot, the Haitian delegate, "pointed out that as many countries no longer admitted the absolute r ight to property, the draft declaration would be going counter to the trend of historical evolution." He opposed the USSR clause "for specific ref­ erence to such laws would be a concession to nationalism that was contrary to the purpose of the universal document under discussion . . . . In order to correct the un­ duly individualistic nature of the basic draft of article 15[17] , [and] yet not to go to the �ther extreme of setting up national laws as criterion for determining the limits of the right to own property, he proposed the addition to paragraph 1 of the sentence 'This right shall be exercised in conformity with the public interest' " (p. 383). Cassin "warmly supported the Haitian amendment because it retained paragraph 2 of article 15 [17] and stressed the social aspect of the r ight to own property " (p. 388). Ju stina Jimenez de Arechaga of Uruguay thought the USSR amendment was "useless" and said he would vote for the Haitian addition (p. 384). Corbet said that the Haitian ame ndment introduced "an entirely new principle " and that both it and the Belgian amendment "went much further than article 27 [29] . Her government was opp osed to the [internal] limit of the right to private property, but article 27 [29] seemed the appropriate place" to fix the limits (pp. 388, 389). Chang, the Chinese delegate, was of the same opinion (p. 388). Azkoul of Lebanon opposed the Belgian and Haitian amendments on the questionable ground that an "individual could be asked not to act against the general interest, but he could not be obliged to use his property in the general interest." 40 The Belgian amendment was rejected by 19 votes to 8, with 10 ab­ stentions, and the Haitian one by 18 votes to 11, with 12 abstentions (p. 389). It is clear from these discussions that none of the drafters wanted anyone to think that Article 17 favors the r ight to unlimited property ownership in either its private or common mode. They only disagreed on where the social utility function was to be placed, in Article 17 or 29. They decided that the limits in Article 29 would suf­ fice. With that in mind it is important to note that when these discussions took place

Privacy and Different Kinds of Property

1 55

Article 29 (their 27) already included the entire list of "requirements of morality, pub­ lic order and the general welfare in a democratic society" (A/C.3/304/Rev.2). Thus when the opponents of an internal socialist limit invoked Article 29 as setting the ap­ propriate external limits on property ownership they did have a case. We may safely conclude that the ownership of privately and commonly owned profit-seeking enter­ prises was for the drafters of the Declaration limited by the stipulations set forth in Article 29. That, of course, is true of all other articles as well. What is different about the property rights discussions is that these limits were explicitly invoked as applying to the ownership of profit-seeking enterprises. Later in the Third Committee the delegates had an occasion to discuss the relationship of the articles, each to the others. In that discussion, Roosevelt "maintained that all articles in the declaration were of equal importance regardless of their position" (p. 875). That was the generally accepted view. In the drafting of Article 17 this larger framework played an explicit role. Even those delegates who represented more or less capitalist countries did not think that a pure capitalist system, supposing such could exist, was acceptable from the perspective of human rights. None of the drafters thought that the free flow of the markets will deliver the goods required for human dignity. That is why they invoked the limits and regulations called for in Article 29. In addition to the limits placed by Article 29, the drafters also were acutely aware of the limits placed on property rights by the rights of workers who help create (more) "property." I discuss these work-related rights in the next chapter. Article 17 (on prop­ erty) does not stand apart from the other rights in the Declaration. The entire section on "other" social, economic, and cultural rights places property rights in the much larger context of what Alan Gewirth has called "the community of rights." 41 This larger framework was clearly present in the drafting history of the article on property itself. We saw that Article 17 at first included a special reference to the right to own personal property such as a home, belongings, privacy of correspondence, and the like. In fact, for a while the Declaration included only that kind of property right. In a declaration of human rights that reference made sense, for the right to own and be secure in one's personal property lies closer to the core of human dignity than does the right to be an owner (alone or in association with others) of a profit-seeking enterprise. Our analysis of Article 12, which calls upon the state to protect a person's privacy, family, home, correspondence, honor, and reputation, supported this view of the centrality of personal property in the protection of individual dignity. If the dig­ nity of the human person spreads itself out in a series of concentric circles then the right to own a profit-seeking enterprise (alone or in association with others) does not stand close to the center. The drafting history of Article 17 confirms this view. Just as no man or woman is an island, so no property can be owned in a vacuum, and all property rights, including those to personal property, are part of a larger eco­ nomic system, whether that be capitalist, socialist, communist, or mixed. It was the failure of the Bogota text to say anything about that larger context that shifted the discussion on property rights away from this admittedly essential minimum to the just­ as-inescapable larger context within which that minimum is set. The Bogota text was rejected not because any delegation thought that people do not have a right to own such material goods as are essential for decent living. On the contrary, they were will­ ing to take that for granted and move on to the thorny question of what to say about

1 56

Chapter 4

the competing models of capitalism and socialism. As far as that context is concerned, the drafters opted for the mixed system that allows for both private and commonly owned property.42 Since those discussions took place at the end they came to domi­ nate the text of the article. From the perspective of human righ ts as expressive of human dignity, it is there­ fore crucial for us to remember that the word "alone" in Article 17 does not simply refer to the private ownership of the modes and means of production, although it does that too. Within that word also lies locked up and confirmed the universally ac­ cepted proposition that "everyone has a right to own personal property," real and other. The drafters of the Declaration also subscribed to another universally acknowl­ edged proposition. That is the belief that the primary way for a person to acquire such personal property is through work. The work-related rights that are the subject of the next two chapters also form part of the larger framework within which the right to own property exists. Like Articles 12 and 29, Articles 23 and 24 also place limits on the ownership of property, especially, it turns out, on the right to the private owner­ ship of profit-seeking enterprises.

Chapter 5 The Socialist Shape of Work-Related Rights

A very influential Latin American lobby dominated this segment of the Declaration's drafting history. First, John Humphrey, who wrote the first draft of the Declaration, was himself a socialist and therefore wrote most of the standard Latin American socialist constitutional provisions into the Universal Declaration. Second, they were able to speak in one voice (usually that of Hernan Santa Cruz, the delegate from Chile), with the result that with Communist assistance they were able keep most of Humphrey's draft. This was not an automatic process. For instance, for a long time the socialist model of property ownership dominated the text of Article 17, and only toward the end did the drafters decide to strike a balance between capitalism and socialism. The earlier socialist layers of the article are still present, but we have to look for them just below the surface text and at the edges of the article where it flows over into other provisions in the Declaration. The case of the work-related rights discussed in this chapter is quite different. This time the Latin American delegations - again with assists from the Communist bloc­ were successful in shaping the overt texts of the articles involved. While the drafting plot of the work-related rights is similar to that of property rights -it being one of North Atlantic attempts to trim Humphrey's initial socialist statements- the outcome is different, for these efforts were not nearly as successful. In addition, Cassin, who was asked to revise Humphrey's draft, was a unionist himself and even strengthened what Humphrey had done. Also, the Communist delegations were far more coopera­ tive than they were on questions of property. All of these factors explai n why the work­ related rights of the Declaration have a socialist shape. Articles 23 (on work) and 24 (on leisure time) contain the following nine rights: (1) to work, (2) to free choice of employment, (3) to just and favorable conditions of work, (4) to protection against unemployment, (5) to equal pay for equal work without any discrimination, (6) to favorable remuneration for oneself and one's family (sup­ plemented if necessary), (7) to form and join trade unions to protect one's interests, (8) to have leisure time and reasonable working hours and (9) to have paid holidays. The issues of right (3) about favorable working conditions will be seen to fall either under the right to work itself (1) or under questions of remuneration and dignity (right 6) and of ensuring one's interest through union membership (right 7). Right (5) about equal pay for equal work was primarily aimed at equal treatment for women (see 3.5). That leaves seven work-related rights to discuss. In the first section ("Freedom and the Right to Work") I will deal with the first two of these, the generic human right

158

Chapter 5

to work and the right to choice of employment. The human right to work was not discussed frequently, but I uncover its rationale by way of a discussion of three rejec­ tions: that of the right to sell oneself into slavery, of the duty to work, and of the right to self-development. The context of these rejections underscored the importance the drafters attached to the right to work at a job or career of one's choice. Section 5.2, "The Right to Protection Against Unemployment," speaks for itself. The drafters be­ lieved that this right was a logical consequence and a moral obligation that stemmed from everyone's having the right to work. These three rights- to work, to choice of employment, and to protection against unemployment-form the internal core of the right to work and were at one point in the drafting process separated out as such. The drafters constantly struggled over where to draw the line between a state­ ment of abstract right and the measures or legal rights that seek to implement that right. For instance, they could have looked upon the right to form and join trade unions as a measure that implements the more abstract right to freedom of associa­ tion. I explain in section 3 ("The Campaign for Thade Union Rights") that they were prodded by a campaign of the world's trade unions to decide for the inclusion of this right in the Declaration. They drew the implementation line on the other side of this right, which is the struggle on which I report in section 4 ("Union Shops, Strikes, and Levels of Implementation" ). The fifth section ("Conditions: Human Labor Is Not a Merchandise") is devoted to the goods unions seek to deliver to their members: good working conditions (hy­ gienic and otherwise), decent pay (either enough to support a family or supplemented for that purpose), limited working hours, and vacations with pay. All of these rights express the idea that human labor is not a commoditr to be exploited or bought at the lowest possible price. 5. I Freedom and the Right to Work

Humphrey had at least five articles that dealt with the right to work or employment, one separated from the other four. H24 stated that "There shall be equal opportunity of access to all vocations and professions not having a public character." A little later in his lineup he had four more articles on this topic. H37 stated that "Everyone has the right and the duty to perform socially useful work" (AC.l/3). H38 spelled out that "Everyone has the right to good working conditions" (AC.l/3) . In our discussion of property rights we have already met with H39, according to which " Everyone has the right to such equitable share of the national income as the need for his work and the increment it makes to the common welfare may justify." We can also group H40 with these rights, for in it Humphrey seems to call for supp lemental income when wages are not sufficient. It declares "the right to such public help as may be necessary to m ake it possible for him to support his family" (AC.l/3). He meant this to apply to per­ sons who do have employment, for his next ar ticle (H41) deals with matters of social s ecurity, including benefits people are to receive when they are unemployed (see Chapter 6 ). All of these articles were sponsored for inclusion by Santa Cruz of Chile. Cassin rewrote all of these provisions and, with the exception of the r ight to choice of vocation, placed all of them in a chapter he entitled "Social, Economic and Cultural Rights," which included a total of nine rather detailed articles. To H37 with

The Socialist Shape of Work-Related Rights

I 59

its "right and duty to perform socially useful work" Cassin added the right "to the full development of his personality." 1 He then added an extra article about slavery: "Every one may hire his services for a time but may not either alienate his person nor place himself in a state of servitude to another" (W.2/Rev.l). He collapsed H38, H39, and H40 into one long article: "Human Labour is not a merchandise. It shall be performed in good conditions. It shall be justly compensated according to its quality, its duration and its purpose, and shall give a decent standard of living to the worker and his family" (p. 7). To this he added a very long article on everyone's "right to protect his professional interests. In particular, he may participate, either by himself or through his representatives in a trade organization, to the collective bargaining of labor conditions, the determination of general plans of production or distribution of goods and, should the case arise, to the supervision and administration of the enter· prise in which he works" (p. 7). All of these details raised some eyebrows, and in his second set of revisions Cassin heeded the demand for bare principles only.2 In addition to the right on the choice of vocation, Cassin now had four brief articles connected with the right to work: one on the right and duty to perform socially useful work, one on not placing oneself "in a state of servitude to another," one on human labor not being merchandise, and one on the right "to protect one's professional interests, either by himself or through his representatives." Without much discussion, the First Drafting Session "agreed to elimi­ nate" the one on slavery (SR.l4fp. 7). And, when the chairman read Cassin's article on trade union rights, Geoffrey Wilson, the U.K. delegate, "pointed out that the sub­ stance of this Article was included in the establishment of the right to association. It was [therefore] agreed to omit this Article" (p. 8). That left only two short articles to be passed on to the Second Session of the Commission, one on the right to work, to be discussed presently, and one on the conditions under which the work is to be per­ formed, to be discussed in section 5. I begin with the right to free choice of employment, which is still in Article 23. After I discuss the adoption of this particular right, I will discuss the following three deletions: the deletion of the prohibition to sell oneself into slavery, the deletion of the duty to work, and the deletion of the right to the full development of one's per­ sonality. In their contexts, all three of these deletions cast light on what the drafters meant by everyone having a human right to work. Humphrey had separated the right to choice of employment from his other three articles on work (37, 38, and 39). H24 enunciated everyone's right "to equal opportu­ nity of access to all vocations and professions not having a public character" (AC.l/11). Cassin sponsored the inclusion of this article and included it in all of his rewrites, making only slight stylistic changes. In the brief discussion that did take place, Roose­ velt, the U.S. delegate, suggested that perhaps a footnote needed to be added "stating that the rights of foreigners in relation to this Article should be the subject for a Con­ vention" (SR.13fp. 12). But then she immediately agreed with Wilson's suggestion that "for all" be added to the article. The result was that it was passed on to the Second Session of the Commission stating that "There shall be equal opportunity for all to engage in all vocations and professions not constituting public employment" (p. 17) . Primarily for what seem to have been reasons of oversight the Second Session lost this provision and did not include it its report.5

160

Ch11pter 5

It was resurrected in the Second Session of the Drafting Committee because the United States delegation included it in an alternative text it had submitted for the article on the conditions of work, as follows: "Every one is entitled to the right to work under fair and just conditions, to choose a vocation freely, and to join trade unions of his own choice" (95/10). Hernan Santa Cruz of Chile expressed support for "the provi­ sion that everyone should have the right to choose a vocation freely, contained in the United States . . . and Bogota texts" (SR.42jp. 8). The right got lost again in the Third Session of the Commission when a small drafting subcommittee, of which the United States was a member, chose not to include it in the article (p. 114). It was resurrected again in the Third Committee by the efforts of the Lebanese, Cuban, and U. S. delegations. The delegations from Lebanon and Cuba had submitted amendments to the Third Committee to get this right included. The Lebanese dele­ gation proposed to insert into the first paragraph the phrase "and to a free choice of work and of his mode of life" (AjC.3j260). The Cuban delegation requested that paragraph 1 be broken up into two parts, the first part of which was to read: "the right to work under proper conditions, and to follow his vocation freely, in so far as existing conditions of employment permit" (A/C.3j232). The Third Committee accepted this extra Cuban paragraph by a vote of 22 to 16, with 3 abstentions (p. 537). The Com­ mittee made it the last paragraph of the article. For reasons of economy, the United States delegation, which had been the early sponsor and protector of this provision, voted against this extra paragraph. Although this additional Cuban paragraph had been adopted, the article as a whole was rejected. In a subcommittee appointed to solve this awkward problem, the United States proposed the following first paragraph for the article on work: "Every­ one has the right to work, to free choice of employment, to just and favourable con­ ditions of work and pay and to protection against unemployment" (A/C.3j363). This new first paragraph was adopted and the separate paragraph that dealt with just this right was deleted. The right stayed in without any controversy attached to it. While no extensive discussion took place on the reason for the inclusion of this right, it clearly exhibits the drafters' conception of the human person as autonomous and author of his or her own "mode of life." No one ever suggested that a person does not really have the human right to choose his or her vocation or type of employment. This conception of the self-authorship of personhood also underlies several deletions from the text on work which I will discuss next. Cassin had augmented the Humphrey list with this article: "Every one may hire his services for a time but may not either alienate his person nor place himself in a state of servitude to another" (W.2/Rev.l). Charles Malik, the Lebanese delegate to the First Drafting Session, felt that if a man wanted to sell himself into slavery, "it was his right," to which Cassin responded that "the Declaration had to protect a man not only against external abuses but also against his own weaknesses" (SR.9jp. 11). How­ ever, Cassin did agree that "the details of this matter might be better dealt with by a Convention." A few meetings later it was decided not to include this article, which is why Cassin did not include it in his second rewrite (SR.14jp. 7). While no vote was taken, we may speculate that this deletion did not take place for the reason Malik gave. The rationale Cassin gave for including it has the support of at least three other rights in the Declaration. First, Article 4 states that "No one shall

The Socialist Shape of Work-Related Rights

161

be held in slavery or servitude," and it prohibits the slave trade "in all [its] forms." This blanket prohibition would also seem to cover the case of someone voluntarily entering into such a state. Second, under almost any conceivable set of circumstances the state of bondage or servitude is not conducive to someone's enjoyment of his or her right to what Article 22 calls "the free development of his personality." Third, this right to free development is put even more forcefully in Article 29 as the right "to the free and JUU development of his personality." Freedom and bondage cannot belong to a person's life at the same time, which is why the legal systems of all civilized nations prohibit someone from placing him or herself into slavery or conditions of servitude The Declaration's right to "free choice of employment" feeds on this same perspective of a person as the author of his or her own life. In the range of freedom the opposite of the right to sell oneself into slavery is the right not to work at all. This raises the question of whether people can be said to have a duty to work, which would make the right to work a mandatory right.4 Humphrey answered this in the affirmative, for in H37 he matched the right to work with a cor­ relative duty: "Everyone has the right and the duty to perform socially useful work" to which Cassin added "and to full development of his personality" (AC.l/3). Humphrey had taken this article from the draft prepared by the Inter-American Juridical Com· mittee, which the delegation of Chile had submitted to the UN for consideration. This Latin American tradition saw a person's work "as a contribution to the general wei· fare of the state," a view that led it to include the duty to work as a correlate of the right to work. Humphrey replaced this clause with his own "socially useful" locution (W.Sjp. 18). This locution was Humphrey's variation on the phrase "social obligation," which with only minor variations was written into the constitutions of Brazil, Colom· bia, Costa Rica, Ecuador, Guatemala, Paraguay, and Uruguay (AC.l/3/Add.1jp. 310). Cassin felt comfortable taking this item over into his own rewrites because the new French constitution of 1946 also stated that "Everyone has the duty to work and the right to obtain employment" (p. 311). This was an exception in the North Atlantic bloc and for that reason it would not last. The Communist constitutions also contained statements on the duty to work. Cassin dropped the article in his second revision in an attempt to heed the warning of his colleagues to state only main principles. These two provisions -the duty to work and the right to self-development-are linked by the socialist rationale that prescribes to everyone the duty to do socially useful work. Such work contributes both to the general welfare because it is of benefit to the community within which it is performed, and-when things are done right- it is an expression of everyone's right to the "full development of his personality." This is why Cassin added the development right as a third element to Humphrey's article on the right and duty to do socially useful work. Wrote Cassin: "Everyone has the right and the duty to do socially useful work and to the full development of his personality" (W 2/Rev.2) All three of these provisions are linked in one grand socialist vision of the state as a community of rights grounded in the principle of mutuality articulated in Articles 22 and 29 of the Declaration. The United States delegation began the fourteenth meeting of the First Session of the Drafting Committee with the suggestion that the article on the right to work read as follows: "Everyone has the right to a fair and equal opportunity to perform socially useful work" (SR.14jp. 6). This proposal left out "the du ty to work" and fits .

.

.

with comments made by Eleanor Roosevelt in earlier and later meetings. She objected to a "detail" like the duty to work because, she said, that duty "could be considered in certain countries as leading to forced labor." 8 Right after Roosevelt read the proposed sentence without the duty, "Mr. Wilson (United Kingdom) suggested the suppression of the last clause 'Full development of his personality' as this was covered by Article 2 [29] . Santa Cruz (Chile) supported the United Kingdom proposal" (SR.l4jp. 6). It is important to note that the reason Wilson gave for this deletion was not that people do not have a human right to the full development of their personalities, but that this right had already been stated in another place. The majority of the drafters agreed to delete the duty to work (as a correlate of the right to work) because they were worried about the high unemployment rate around the North Atlantic in the years immediately after the war. This was caused by the return of the soldiers to the domestic job markets and it meant that many people who wanted and were able to work could not find a job. According to Cassin, "unfor­ tunately, it was a fact that after the crises [of the war] it had not been possible to find employment for all these men. He admitted that unemployment cannot be overcome immediately, but felt that the Declaration should establish fundamental rights, such as the right to work, for the future" (SR.l4fp. 7). Santa Cruz "admitted that realiza­ tion of the right to work in all countries was for the future, but if the Declaration were to be adjusted only to existing conditions it would not achieve a very useful purpose. He felt that the Bill should state fundamental rights, and that countries should try to find means to adjust their legislation accordingly" (p. 7). At this point the minutes record that the article on work "was adopted to read: 'Everyone has the right to perform socially useful work.' " The presumption of the right so stated was that countries would aim at full employment, as Article 55 of the UN Charter bids them to do, and write legislation that would protect their citizens against the ravages of unemployment. S.Z The Right to Protection Against Unemployment

As it arrived in the Working Group of the Second Session, nothing was said in the article on work about the duties of states to provide work to those who were said to have the right to work. Noting this omission, Alexandre Bogomolov of the USSR thought that "the obligation of the State and particularly its duty to take steps to pre­ vent unemployment . . . should be stated in the Article" (AC.2/SR.7jp. 11). Afanasi Stepanenko, the delegate from the BSSR, seconded this request. He said that "unem­ ployment was a distressing situation with such repercussions on family life that the onus to prevent it should be placed on the State." He proposed the following as second sentence for the article: "The State has an obligation to take all necessary measures to eliminate unemployment" (p. 11). The Panamanian delegation had submitted a proposal which also sought to cor­ rect this omission, but in slightly softer terms. Instead of "all necessary measures" it proposed a second paragraph that spoke of the state's "duty to take such measures as may be necessary to ensure that all its citizens have an opportunity for useful work" (W.8fp. 18). August Van Istendael, the representative of the International Federation of Christian 'frade Unions, "pointed out that it was only a part of the duty of the state

The Socialist Shape of Work-Related Rights

I 63

to guarantee employment; it had the primary duty of harmonizing the economic life of the nation to permit full employment. He suggested that the text should be so drawn up as to avoid any implication of compulsory labor" (SR.7jp. 12). Cassin said he "favored" the Panamanian text over the USSR text, but in his citation of that text he used the even weaker phrase "as may be within its powers" (p. 12). This weaker ver­ sion of the Panamanian paragraph was adopted by 4 votes to none, with 2 abstentions, and became the second paragraph of the article on the right to work.6 In the full Second Session Stepanenko returned with his much stronger state­ ment that "The State is bound to take all necessary steps to prevent unemployment" (SR.40jp. 5). The chairman pointed out that this stronger language had been rejected in favor of what she said was a compromise text. Bogomolov of the USSR supported the BSSR amendment. He made the point that in the Soviet Union "it was normal for the [state] . . . to undertake to provide its citizens with work. The Declaration, how­ ever, was also intended for countries where private undertakings existed side by side with the State, and where the State could not accept all the responsibilities connected with the work of its citizens. In such cases, it could, however, take effective action by means of economic measures to prevent unemployment. There was therefore a dif­ ference between the duty of providing work for citizens and that of taking steps to prevent unemployment" (p. 6). Considering the international climate at the time, this was a remarkably conciliatory statement. Both the weaker Panamanian text and the stronger Byelorussian one were adopted, the latter by 7 votes to 4 with 5 abstentions (p. 7). The result was that the article on work now had three overlapping paragraphs: (1) "Everyone has the right to work"; (2) "The State has a duty to take such measures as may be within its power to ensure that all persons ordinarily resident in its territory have an opportunity for useful work"; and (3) "The State is bound to take all necessary steps to prevent unem­ ployment" (77/Annex A). There is an inconsistency here between the "measures [that] may be within its power" of the second paragraph and the call for "necessary steps" of the third paragraph. Some of the governments, to whom the draft declaration was sent for comment, noted this overlap and inconsistency and chose different solutions.7 The Brazilian gov­ ernment felt that paragraphs 2 and 3 were redundant and that all that was needed was the stronger Byelorussian sentence. Going in the other direction was the Egyptian government's view that "the duties of the State were overstated" in the article and that "all that can be required of the State is that it should do everything possible to orga­ nize its domestic economy in such a way as to give all persons ordinarily resident in its territory an opportunity for useful work." In addition to these comments the Second Session of the Drafting Committee had also before it French and U.S. proposals. The United States had changed its position from the earlier "duty of the State to under­ take measures that will promote full employment" to an article that made no mention of any government or state obligations at all.8 Sender of the AFL thought that the United States text "omitted certain essentials, in particular the State's duty to prevent unemployment" (SR.42jp. 8). Wilson of the United Kingdom also felt that "the provi­ sion regarding unemployment should be maintained (p. 9). The following French text found much support: "The State is bound to take such measures as may be within its power to prevent unemployment and to ensure that ·

164

Chapter 5

all persons ordinarily resident in its territory have an opportunity for useful work" (82/Add.8/Art. 21). Van Istendael of the International Federation of Christian Trade Unions "supported the French text," but made the additional point that "the duty of the community as well as the State to take measures to prevent unemployment should be mentioned." 9 This suggestion about the duties of the community (along with those of the state) was immediately picked up and stayed with the provision until the end, as can be seen from the wording of Articles 22 ("as a member of society") and 28 ("inter­ national order"), neither of which point to the state as the exclusive duty-bearer. Alexei Pavlov of the USSR "supported the suggestion that not only States but also the community should undertake measures to ensure to all peoples the right to do useful work. This right had been much abused" (p. 10). C. H. Wu of China, seconded those comments. Because the Second Session of the Drafting Committee was short on time, neither the U.S. nor the French proposal was voted upon. The next stage, the Third Session of the Commission, was the one that made drastic cuts in the draft document. There were two schools of thought on how that policy was to affect the article on work. Some delegations thought that no cuts should be made in the area of social and economic rights, for they were the new and recently accepted rights. These newer rights, it was thought, should be spelled out in greater detail than the older eighteenth-century civil and political ones. The other school felt that this wa� a good place to make some cuts and that the Declaration should only state the barest of principles. This minimalist view held that the national economies of the member states differed too much for the Declaration to make a statement on the matter. What we have in the final product is a compromise of these two extremes. The United States, the United Kingdom, and the Indian delegations were all of the cutting school. The latter two jointly submitted one very short article that covered both the right to work (Article 23) and the conditions for it (Article 24) : "Everyone has the right to work under just and favourable conditions." 10 It is important to note that the absence here of a paragraph on the duties of states did not mean that the two delegations thought states had no duties in this regard. Metha, the Indian delegate, argued that it was the Commission's task "to define the rights of individuals and not the duties of the community or the State." Appealing to the principle of the correla­ tion of rights and duties, she argued that "if each individual has the right to work, it was logical that someone had the obligation to guarantee that he had work" (SR.64jp. 10). She seems to have thought that the existence of the correlative duties was an obvi­ ous matter of logic and therefore provided a good opportunity to make some cuts. Her colleague from the United Kingdom, Wilson, also defended the omission of the state's responsibility on the grounds that it was "presumed that the right to work im­ plied an obligation to provide work" (p. 12). By not spelling out who in the case of the right to work the primary duty-bearer is, these delegations could hold that a person had that duty or that organizations other than the state also had them. Wilson, for one, "was not sure of the fact that, in the last resort, the responsibility in respect of unemployment would be with the State. In view, however, of the existence of different economic systems, it did not seem ap­ propriate to include that concept in the Declaration in too rigid a form." "In the case of many other rights- like the right to life, to freedom of thought and expression, to contract marriage -the State was thought to have the duty of protecting these rights,

The Socialist Shape of Work-Related Rights

165

yet it had not been thought necessary to state that fact expressly. Why then," he asked, "affirm it in the case of unemployment, when only part of the responsibility rested with the State?" (p. 12). The United States took the same position.11 The clearest answer to this United Kingdom question as to why the so far unmen­ tioned duties of states should be mentioned in the case of the right to be protected against unemployment came from the labor union representatives and from the Com­ munist delegations who did not want to shorten the Declaration at that point where they thought expansion was most needed.12 Toni Sender of the AFL "urged the Com­ mission not to omit ensuring the right of every person to an opportunity of doing useful work. Everyone," she said, "had the right to ask the community to take steps to avoid unemployment. That was why the third paragraph of article 23 [about nec­ essary steps against unemployment] was needed, for article 24, with its demand for a decent standard of living for every worker and his family, was aimed at the alleviation of the consequences of unemployment and not at the prevention of unemployment itself" (SR.64fp. 7). Her point was that the prevention of unemployment itself is a separate right that needed to be stated in a separate paragraph of Article 23. Van Istendael of the International Federation of Christian Trade Unions said he understood the desire of the Commission to be brief, but he reminded it of the fact that "this was a question of protecting rights that had only recently been recognized" which to him meant that they should be stated "explicitly." Among these he included "the right to protection against unemployment." "The millions of workers who had placed their hopes on the Declaration would not," he warned, "understand how it could be either incomplete or ambiguous" (SR.64fp. 17). The Communist delegations were also eager to keep the reference to the duty of States in the article. Klekovkin of the UKSSR said, that his delegation was particularly interested in the articles which concerned the right to work, the right to rest, etc. Only a very few documents in existence at the present time mentioned those rights. . . . Unemployment had become an everyday phenomenon . . . . To gloss over that problem would mean disregarding one of the main anxieties of the man in the street . . . . Michael Klekovkin could not understand that some members opposed the mention of the State as responsible for the prevention of unemployment. After all, it was the State which had to take the necessary measures on behalf of the community or of Society. . . . Capitalist States could not offer the same guarantees [as could Communist states] because the control of their national economic systems was not in their hands, but even they could take certain effective measures against unemployment. He considered that the draft proposed by the representative of France or that worked out at the Second Session of the Commission most effectively guaranteed the right to work. (pp. 8-9)

Stepanenko of the BSSR and Pavlov of the USSR also spoke up on behalf of the more explicit French text. To reconcile these two schools of thought the chairman of the Third Session ap­ pointed a drafting committee consisting of the representatives of Australia, France, India, the Philippines, the United Kingdom, the United States, and the USSR (SR.64/ p. 18). Unfortunately, this committee was unable to agree on the wording of the key paragraph. It reported back with four paragraphs, the first two of which read as fol­ lows: (1) "Every one has the right to work and to just and favorable conditions ofwork and pay" and (2) "The enjoyment of these rights should be ensured by such measures

I 66

Chapter 5

(taken by the State or by society) as would create the widest possible opportunities for useful work and prevent unemployment." The first paragraph was immediately adopted unanimously (SR.65/p. 3). The second paragraph contained a clause in paren­ theses because the committee had been unable to agree on the need for it. And the paragraph as a whole had a note attached to it saying that "several members of the Sub-Committee felt that the substance of paragraph 2 might be inserted in a general form in the preamble or in the text preceding the enumeration of the economic and social rights" (E/CN4/114). The parentheses and the note show that the question as to how to phrase the unemployment problem had not yet been resolved. The Communist and the United Kingdom delegations insisted that the duties of states had to be spelled out in Article 23 itself, while the others thought that states' duties could just as well be mentioned in a place other than Article 23.15 This second group was the bigger of the two, which brings us to the birth of Article 22 of the Decla­ ration. Members of the second group felt that a general article on the duties of states at the start or at the end of the section on the "new" rights would be just as effective. Rep­ resentatives from Lebanon, Egypt, Belgium, and the Philippines took this position. Pavlov of the USSR opposed any move of the protection clause to another place "and asked the Chairman to proceed to the vote" (SR.65/p. 4). Wilson, the U.K. rep­ resentative, also asked that a vote be taken "to establish whether the provision con­ tained in paragraph 2 should remain in article 23. If it was decided not to insert it in article 23, a completely new text could be drafted to cover all the other economic and social rights as well" (p. 4). The chairman decided not to do this, but instead opted to entertain new amendments to the already unanimously adopted first paragraph. Since the customary vote to reconsider what had been done had not been taken, this was a questionable decision that caused some friction. As it was, it led to the insertion of the unqualified right to protection against unemployment which we have in the first paragraph of Article 23. Malik, the Lebanese representative, had suggested that at the end of the first paragraph be added the phrase "and to protection against unemployment." That would in no way interfere, he said, "with the adoption of a general principle covering all economic and social rights" (SR.65/p. 5) . Chang of China agreed with the Leban­ ese representative that "the reference to unemployment should be made in article 23 and that a general article should be devoted at the end of the section devoted to eco­ nomic and social rights." 14 The chairman agreed with this and immediately wanted to appoint a subcommittee to draft such a general umbrella article. Pavlov again in­ sisted that "paragraph 2 first be put to the vote," for he rightly worried that if a new and more general article were to be drafted "any reference to the prevention of un­ employment would be lost" (p. 5). Since the Chinese delegation had also proposed a text, Pavlov wanted to know whether "the representative of Lebanon had withdrawn his amendment" (p. 5). Malik indicated that his proposal was still on the table and that "his use of the word 'protection' . . . was completely unambiguous and included all the measures to be taken against unemployment" (p. 8). Several amendments were made that sought to spell out the nature of these "measures" to be taken, but Malik rejected them as unfriendly. He explained that "his amendment would complete the first paragraph by stating the theory of the right to constant work; its adoption would in no way pre-

The Socialist Shape of Work-Related Rights

1 67

judge the acceptance of a separate article on the measures to be taken." The Lebanese proposal to add at the end of the first paragraph of Article 23 the phrase "and of pro· tection against unemployment" was adopted by 9 votes to 4, with 4 abstentions and became part of the final product (p. 11). Immediately after the vote was taken the chairman appointed a subcommittee "to work out a special article concerning the measures to be taken in order to ensure enjoyment of economic and social rights." How this appointment led to Article 22 is the subject of a separate section in the next chapter. What needs to be stressed here is that the creation of Article 22 was the result of a compromise between those dele­ gates who wanted the duties of states to fight unemployment mentioned in the same article where the right to such protection was mentioned, and those who were not so sure about the need for state references and duties at all, certainly not in each article. The compromise was that both the right and the correlative duty were to be men­ tioned, but not in the same article. The right to protection against unemployment was inserted into Article 23's first paragraph and the duties of states were built into the phrase "national effort and international co-operation" of Article 22, which came to serve as an introduction to all of the social, economic, and cultural rights in the Dec· laration. As soon as it had been made this split led to misinterpretations of the text. The Soviet Union proposed to the Third Committee an amendment to Article 23 that once again sought to make the duties of states more explicit (E/800). Defending that amendment, jiri Nosek, a delegate from Czechoslovakia, claimed that the first paragraph of Article 23 was only about "the right to protection against the consequences ofunemployment . . . [and that no] mention was made of the duty of the State to prevent unemployment. Protection against its consequences was a sort of charity conferred upon the workers. It was therefore somewhat humiliating to them; moreover it did not per· mit an effective struggle to be waged against unemployment. [The USSR amendment] went further . . . since it aimed at imposing on the State and on society the obligation " to prevent unemployment (p. 528). Cassin, the French delegate, corrected Nosek's mis­ interpretation of Article 23. "He wished to explain that the words 'protection against unemployment' did not signify remedies against existing unemployment. Provisions for that were contained in article 22 [25] . The meaning of 'protection against unem· ployment' in this case was: measures against the possibility of unemployment. That part of the first paragraph thus corresponded to the wishes of the USSR delegation" (pp. 531-532). Considering the drafting history of this right, I think Cassin's interpre­ tation of the first paragraph of Article 23 is the correct one. The drafters meant by it the right to "constant employment." And that right brought with it the obligation of states to take measures against the possibility of unemployment or, in the words of Article 55 of the United Nations Charter, to aim at "full employment." I mention Article 55 of the Charter because toward the end of the debates on the rights to work and to protection against unemployment this "full employment" Charter mandate was used by the USSR and other delegations to argue for clearer references to the duties of states in the fight against unemployment.15 The drafters of the Universal Declaration agreed with this Charter mandate. "Referring to the Char· ter's express reference to the goal of full employment," Corbet of the United King­ dom noted that "her delegation had no objections to the principle that States should take steps to guarantee a stable and high level of employment It was clear therefo re .

1 68

Chapter 5

that the USSR amendment added nothing to the provision of the Charter" (p. 525 ). Her argument was that the right to "protection against unemployment" in Article 23, together with the correlative duties of Article 22, covered this Charter mandate. Most of the other drafters would probably have agreed with this, except that a majority preferred the phrase "full employment" of the Charter over Corbet's "high level" interpretation. They did not hold or approve of the view that cycles of great un­ employment are the expected result of inevitable financial and other crises. On the contrary, the drafters expected states to aim at full employment as a moral require­ ment attached to "everyone's right to work and to protection against unemployment." It is true that they could have been more forthright about the duties of States in this regard, as the USSR amendment to Article 23 asked them to be. But by knowingly adopting the language of rights for Article 23, the drafters looked at the protection against unemployment as a right that everyone has. They would have been the first ones to admit that the primary duty to implement that right lies with the person having the right. In fact, we saw at the end of section 5.1 that they almost made it a duty to work and have employment. What held them back from enunciating that duty was their knowledge that in the modern world factors other than a person's ability and will play a crucial role in whether employment is available to someone who seeks and wants it. 5 . 3 The Campaign for 'n'ade Union Rights

The reader may be surprised to learn that John Humphrey, socialist that he was, did not include the right "to form and join trade unions for the protection of worker's interests" in any explicit way in his own first draft. While the Chilean and AFL drafts before him also contained explicit references to union rights in their article on the right to work, Humphrey chose to follow the Panamanian model, which contained only an indirect reference and that one was in the article on the freedom of asso­ ciation.16 This Panamanian text included a list of purposes under which the right to unionize could easily be grouped: "Freedom to form with others associations of a political, economic, religious, social, cultural, or any other character for purposes not inconsistent with these articles is the right of everyone" (AC.l/3/Add.lfp. 147). Humphrey dropped from this text the list of purposes, which gave him the following simple sentence: "There shall be freedom to form associations for purposes not in­ consistent with this Bill of Rights" (AC.l/3). This article was not discussed. It was spon­ sored for inclusion in the Declaration by Harry of Australia and Malik of Lebanon (SR.4fp. 8). The same thing was done with Hl9: "There shall be freedom of peaceful assembly" (AC.l/3) .

In his revisions Cassin combined the rights to assembly and association into a single article and added back into it the list of purposes Humphrey had dropped: "There shall be freedom of peaceful assembly and of association for political, reli­ gious, cultural, scientific, professional, and other purposes compatible with this Dec­ laration. No restriction shall be placed on the exercise of this right except for the protection of public order" (W.2/Rev.2). Though they clearly are subsumed under the rubrics "professional" and "other purposes," union rights still are not mentioned ex­ plicitly. This article was sent to the Second Session of the Commission which met in

The Socialist Shape of Work-Related Rights

1 69

December 1947 in Geneva. This was right after the world's labor unions had finished a campaign for greater United Nations recognition of labor union rights. This campaign and the tensions within it between the World Federation of Trade Unions (WFTU) and the International Labor Organization help explain the unsteady drafting history of trade union rights in the Declaration. Given the fact that consti­ tutions of the Latin American and Communist nations explicitly stated various union rights in their articles either on association or on work, one would not expect that trade union rights had to fight for their place in the Declaration,17 But they did have to fight and more than once it was only a mandate from the Economic and Social Council, the parent body of the Commission, that saved them. In March 1947 the World Federation of Trade Unions sent the Economic and Social Council a long memorandum analyzing the plight of trade unions in the post­ war years. The memorandum stated that "ever since the end of the Second World War, one notes that certain interventions tend in various countries to destroy the very foun· dations of trade union rights," after which it lists ways in which unions are blocked from exercising their rights, such as not being able to rent space for meetings and the like (AC.l/9). The memo pointed out that if it became "impossible for workers to make collective agreements, they would have no other means of redressing the wrongs in­ flicted on them than by collective stoppage of work," that is, to go on strike. The WFfU felt that workers "should have a say in determining economic and social policy" (p. 9). The Federation argued that the war had been won in part because of "the active help of the working class and as a result of its sacrifices" (p. 3). After the war, too, the trade unions had done much to assist "trade union organizations in liberated or de­ feated countries." This help had been a major factor "in the spread of democracy in the political, social and economic domain" (p. 4). The WFTU argued that it had been "the masses of [unionized] workers . . . who had born the brunt of the war." For good measure and perhaps even as a threat the memo contrasted this disciplined behavior of the unionized workers with the "unorganized, spontaneous anarchic movements [that] can be a danger to the internal peace of every country" (p. 5). All of this pointed in the direction of a need for greater recognition of trade union rights on local, national, and international levels. Based on these considerations the WFTU sub­ mitted a number of resolutions for the Council to adopt. A few months later, in june 1947, the American Federation of Labor, which had never joined the WFfU, followed suit by sending the Council some additional principles or articles for consideration.18 Since it did not want to open a can of trade union worms,19 the Economic and Social Council forwarded both of these communications to the International Labor Organization for advice. These referrals were discussed at an International Labor Con­ ference held in the summer o£ 1947. They were forwarded by the ILO to the Economic and Social Council that same fall and were debated in the same Third Committee which a year later would be discussing the Universal Declaration. After prolonged de­ bate the Council adopted the ten principles proposed by the ILO and "resolved to transmit the documents to the Commission on Human Rights in order that it may consider those aspects of the subject which might appropriately form part of the Bill or Declaration on Human Rights" (AC.1/9). The General Assembly sanctioned this re­ ferral by a vote of 45 to 6 with 2 abstentions.20

1 70

Chapter 5

A number of delegations were not satisfied with the quick action taken by the Council and objected to the Council's having taken the advice of the ILO without hear­ ing what the WFfU and the AFL had to say on the matter of trade union rights. Espe­ cially the Communist supporters of the WFfU felt that the ECOSOC had snubbed the WFfU and its 70 million members. The main difference between the recommen­ dations of WITU and those of the ILO was that the former looked upon trade unions as totally autonomous entities and asked the ECOSOC to grant them recognition as such (AC.l/9/p. 6). The ILO, on the other hand, had couched its ten recommended articles in terms of an almost perfect equilibrium between what it called "employers' and workers' organizations." 21 Unlike the WITU, the ILO did not single out trade unions for special treatment, except in its ninth article, which dealt with the question of closed or open shop and which will be discussed in the next section. While the Commission on Human Rights was only asked "to consider those as­ pects of the subject which might appropriately form part of the Bill or Declaration," coming as it did from the superior parent body, we have license to interpret this "re­ quest" of the Council as a mandate that the Human Rights Commission in some way include trade union rights in the Declaration. In any case, that is how Eleanor Roose­ velt, the chairperson of the Commission, and some of the other delegates interpreted this referral to the Commission. The indirect references ("professional and other purposes" ) to trade union rights that the Second Session of the Commission stood to receive from its drafting subsid­ iary seem an inadequate response to the campaign for more trade union recognition that had culminated in the ECOSOC resolution. Oddly enough, in his own otherwise accurate thirty-seven-page report on what had transpired Humphrey did not stress the mandatory character of this referral.22 In spite of this understatement of the crisis, Humphrey's report clearly had an impact on the drafting proceedings, for without much discussion the Second Session's Working Group on the Declaration adopted the following article on the right to association: "Everyone has the right to freedom of peaceful assembly and to participate in local, national and international associa­ tions for purposes of political, economic, religious, social, cultural, trade union or any other character, not inconsistent with this Declaration" (SR.7jp. 5). In the full Second Session, this article on association was adopted by 10 votes in favor, 0 against, and 5 abstentions (SR.39jp. 15). The same Working Group made an even bigger shift in the case of the article on the conditions of work, for there it went from no mention at all to a very explicit one. Without explaining himself, Carlos Romulo of the Philippines proposed that every­ one's right "to join trade unions for the protection of his interests" be included in the article on the right to good working conditions (SR.7jp. 13). Cassin, the French repre­ sentative, wondered why the general had not included the family in the calculation of such interests and proposed to include those interests in the clause. This was accepted and by a vote of 5 to 0, with 1 abstention, the Working Group adopted everyone's right "to join trade unions for the protection of his interests in securing a decent standard of living for himself and his family" (p. 14). The full Second Session also accepted this provision, as did the Second Session of the Drafting Committee, in each case without much discussion or disagreement. Thus, from almost no mention at all trade union rights were now strategically

The Socialist Shape of Work-Related Rights

I7I

placed in two articles of the Declaration, the one on association and the one on work. For such a specific right, that would seem to be a clear case of unnecessary overlap, which is precisely how the drafters came to look at these two occurrences. Again, the drafters had to decide where to draw the line between a statement of an abstract moral right and the measures of implementation laid out in the domestic legal systems that differ from country to country. In this case they could have drawn that line between the rights to association or work, on the one hand, and the implementation by way of union rights on the other. Partly as a result of the trade union campaign and the man­ date from the ECOSOC, they came to draw that line after and not before the right to unionize. The scaling back of union rights began in the Second Session of the Drafting Committee. Roosevelt began that Session with the suggestion that the list of legiti­ mate purposes (political, economic, religious, social, cultural, and trade union ones) be deleted from the article on association. Her delegation had submitted a proposal to this effect.23 Santa Cruz of Chile objected. He "explained that the Commission on Human Rights was bound by a resolution adopted by the Economic and Social Coun­ cil at its fourth session, and later ratified by the General Assembly, to include the right to form trade unions in the concept of freedom of association." 24 A few meetings later he said that the ECOSOC and the General Assembly "had instructed the Commission on Human Rights to examine all the comments on that matter made by the WFTU and the AFL, etc., and to study how they could be written into the Declaration on Human Rights. Under those circumstances he thought it useful to retain . . . the cata­ logue of political, economic, religious, social and cultural rights recognized by the constitutions of almost all nations of the world, and, more recently the right of trade union association" (SR. 4ljp. 3). Lending support to Santa Cruz, Cassin "wondered whether it would not be pos­ sible to leave out the catalogue, but to mention the right of trade union association" because they had not been part of the classical eighteenth-century lists of rights (SR.41jp. 3). With the encouragement of Roosevelt as the chair, this was done and the Second Session of the Drafting Committee adopted by 6 votes to 1, with 1 abstention, the following article: "Everyone has the right to freedom of peaceful assembly and to participate in local, national, international and trade union association for the pro­ motion, defense and protection of purposes and interests not inconsistent with this Declaration" (95/p. 9) . This special mention of trade union rights in an article meant for more general purposes was bound to cause trouble in the Third Session, which very much wanted to shorten the draft document before it. The Australian delegate, A. J. D. Hood, ex­ plained the options clearly. The U.K.-India text, he said, "left out all mention of trade unions . . . . The United States amendment had again taken up the idea of mention­ ing trade unions specifically. If the Commission thought that trade unions should be mentioned, it should go back either to the Geneva text or to the French draft. If, on the other hand, it was against any enumeration, the simple and concise Chinese text was the best" (SR.61jp. 11).25 As one might expect, the representatives of trade union organizations spoke up on behalf of the special mention of these rights.26 But the ma­ jority of delegates had problems with this singling out of trade union rights in the article on association.27 Neither did the delegates want to go back to the Geneva draft

1 7Z

Chapter 5

or the French text, each of which contained the right to unionize within a larger list of legitimate purposes. Such a list did not fit the view that the Declaration was becoming too long. Considerations like these led to the adoption by 7 votes to 4, with 8 abstentions, of the following short Chinese text: "Everyone has the right to freedom of assembly and association" (SR.6ljp. 11). Defending his text, Chang of China pointed out that "any enumeration was dangerous. It might be argued that religious associations, for example, had the same right to be included in [the] article . . . as trade union organi­ zations. He did not see that the latter should be mentioned any more than the former" (p. 8). The Communist delegations did not speak up more forcefully on behalf of trade union rights, because they were at this stage more concerned about getting the Declaration to say that the right to freedom of association did not extend to Nazis and fascists (p. 7). At the level of the Third Committee, the Cuban and Panamanian delegations sought to reintroduce union rights into the text. Because it explicitly mentioned "trade union" rights, the Cuban text was the best, but even it did not succeed in arousing sufficient interest in the issue.28 Guy Perez-Cisneros, the Cuban delegate, defended his country's amendment because the right to form and join trade unions "was not recognized in many countries" and should therefore be stated explicitly in the Declaration (p. 429). He was supported in this view by his colleagues from Argen­ tina, Venezuela, Bolivia, and Lebanon (p. 482). However, some of the North Atlantic delegations, which used to be strong supporters of union rights in the Declaration, had come to have second thoughts.29 Roosevelt thought that the Cuban and Panama­ nian amendments were "too detailed" (p. 429). And Cassin, who throughout all the union discussions had been remarkably consistent in his support, (suddenly) thought that the idea of enumerating legitimate purposes might "be somewhat dangerous," but that the Cuban amendment did seem "to cover all the essential points" (p. 483). Even the staunch union rights delegation of New Zealand did not support the Cuban amendment.80 The Communists had finally woken up to the union cause, but not enough to make common cause with the Latin American socialists. Stephan Demchenko, the UKSSR delegate, reminded the delegates of the ECOSOC's mandate and "stressed the fact that freedoms laid down in [this article] were still not universally recognized. In a memorandum of the WFTU to ECOSOC, at its tenth session, it had been shown that eleven countries, Members of the United Nations, violated the basic right of associa­ tion of trade unions. Further, in many countries leaders of organizations interested in the cultural development of the working classes had been persecuted or the mem­ bers dispersed" (p. 435). Leonid Kaminsky, the delegate from the BSSR, made similar comments. If the Communists had used these new insights to support the Cuban amendment the vote against it would not have been as lopsided as it was. It was re­ jected by a vote of 28 to 7, with 12 abstentions (p. 445). Another reason why this rehabilitation effort in the Third Committee failed was that shortly after the Third Session deleted the right to unionize from the article on association, it had upgraded that same right in the article on working conditions from a mere clause to a separate paragraph, which came to be the fourth paragraph of Article 23. Thus the right "to form and join trade unions" had been passed on to the

Thtt Socialist Shape of Work-Related Rights

1 71

Third Committee with increased visibility. I end this section with the story of how this increase was made. As they had done in the case of the right to association the U.K. and Indian delegations jointly submitted to the Third Session a very short text ("Everyone has the right to work under just and favourable conditions" ), which intentionally left out everyone's right "to join trade unions for the protection of his interests in securing a decent standard of living for himself and his family" (99 and 95). Having gone along with the earlier deletion of union rights from the article on association, the m�ority of delegates spoke against this second deletion. It would have removed aU mention of trade union rights from the Declaration and been in dear violation of the ECOSOC mandate. The majority of delegates did not agree with the United Kingdom argument that "the right to join a trade union, had [to be] regarded as already covered in article 19, which guaranteed the right of association" (SR.64jp. 11). For instance, Roosevelt was tempted by the brevity of the U.K.-India text, but only "if amended by the addi­ tion of the right to set up and join trade unions" (p. 6). Cassin had trade union rights on his list of topics that needed to be covered in connection with the generic right to work (p. 8). Lebeau, the Belgian representative, also was of the opinion that "the right to join a trade union was sufficiently new to deserve special mention" (p. 1 4). For reasons not directly connected to the matter of union rights, the Third Ses­ sion set up a subcommittee, which reported back with a four-paragraph article on conditions of work, the third paragraph of which stated: "Everyone is free to form or join trade unions (of his own choice) for the protection of his interest." 51 In spite of the fact that explicit mention of trade union rights had been dropped from the article on association, several delegates still insisted that that stripped version adequately covered union rights, which is why they opposed this extra paragraph for Article 23. Omar Loufti of Egypt "declared his intention not to vote for paragraph 3, which he considered superfluous, since the right to freedom of association was already given in [what was then] article 18" (SR.66jp. 3). Malik of Lebanon also wanted to know why "the sub-committee had singled out trade union association for separate mention, when freedom of association was already covered in Article 18" (p. 3). In response to these queries Roosevelt "explained that the United States delega­ tion considered that the right to form and join trade unions was an essential element of freedom. While other associations had long enjoyed recognition, trade unions had met with much opposition and it was only recently that they had become an accepted form of association. The struggle was, in fact, still continuing, and her delegation thought, therefore, that specific mention should be made of trade unions" (p. 4). The vote on this paragraph was an important one, for a negative vote would have removed all trade union rights from the Declaration. As chair, Roosevelt knew that she would have to explain the outcome of this vote to the Economic and Social Council, which had specifically requested that the Commission deal with trade union rights. She did not remind her colleagues of the mandate, but instead pointed out to them that sev­ eral delegations had supported the first deletion from the article on association "on the assumption that specific mention of trade unions would be made part of" the article on the right to work. As it turned out, the vote in favor of the separate trade union paragraph was a comfortable 12 votes, with 4 abstentions (p. 4). In the Third Committee a few delegates repeated the same objections to the sepa-

1 74

Chapter 5

rate paragraph for trade union rights. They still felt. that these rights were adequately covered by the article on the right to association. Mter some of these comments had been made, the chairman, Malik of Lebanon, said he agreed the right to unionize "was undoubtedly covered by the more general terms of Article 18 [20] , but that it had been thought wise to include the right in question because of the particular im­ portance of trade union activities in modern economic life." 82 The paragraph was adopted twice, both times with a very wide margin. The first and main one was by 32 votes to 1, with 3 abstentions (p. 539). For reasons not related to the union paragraph the Third Committee rejected the article on work as a whole. A subcommittee was set up to straighten out the problem, which gave the New Zealand delegation an opportunity to change the wording of the paragraph. Upon its recommendation this subcommittee changed the opening phrase from "Every one is free to" to read "Every one has the right to form and to join unions for the protection of his interests" (AJC.3jp. 363). When this paragraph came back to the Third Committee, it was accepted by a unanimous 41 votes to none.99 Behind this very late change from "is free" to "has the right" went hidden quite a controversy about whether the Declaration should take a stand on the matter of closed or open shop policies. 5.4 Union Shops, Strikes, and Levels of Implementation

A union or closed shop policy is one where a person's right to (continued) employ­ ment in a certain enterprise is made conditional on his joining the trade union that has (won) the collective bargaining rights for the workers in that enterprise. Because of refusing to join that union the worker might not be hired, might be (if already employed) dismissed or otherwise discriminated against. In an open shop policy any such discriminatory treatment is not allowed under law. The recommendations which the International Labor Organization made to the Economic and Social Council and which the Council adopted stipulated neither an open nor a closed shop exclusively. Together the two paragraphs of its Article 9 seem to say that an open shop may not be imposed from the top down and that a closed shop may be imposed from the bottom up (E/CN.4j3ljp. 22). In other words, it is a question of what the workers decide is the best policy to follow. It is a matter of economic democracy. There were some delegations to the 1947 summer ILO Conference which did not agree with the second paragraph of this ninth ILO article because it condoned a closed shop policy (whereas paragraph 1 had supported the open shop principle). The Thrkish delegation tried to have this second paragraph deleted on the groun ds that "no worker should be obliged to belong to any given trade union in order to ob­ tain or continue in employment." This amendment to delete the second paragraph of Article 9 was rejected by 51 to 64 votes (p. 23). In what follows we will see that the delegations of the United States and Uruguay to the Commission on Human Rights took this same position. The other side of the argument was that it would be "unfair to protect the worker who wished to e..Yoy all the advantages obtained by the trade unions but who refused to join the union" (p. 23). We will see that the New Zealand delegation to the Commis-

The Socialist Shape of Work-Related Rights

1 75

sion on Human Rights consistently held and defended this position. The result of these opposing interests was that the Declaration, as did the combination of the two ILO paragraphs, left this matter open and to be decided on the level of implementation. At the start of the Third Session the U.S. delegation proposed to add a choice qualification to the joint U.K.-India texts that had been submitted for the right to as­ sociation and the right to work, both of which had ignored all union rights.54 To the one on association the U.S. wanted to add "including freedom to form and to join trade union associations of his own choice" (SR.61jp. 8). And to the one on work it wanted to add "including freedom to form and join trade union associations of his own choice" (SR.46jp. 5). The first suggestion did not lead anywhere because the Third Ses­ sion adopted a very short article on association. But the second attempt bore fruit. In the Third Session of the Commission Roberto Fontaina of Uruguay, made the point that if "it was considered desirable to specifically mention that right [to join a trade union, then] it had to be made clear that it included not only the right to join but also the right to leave a trade union. It was a question of protecting the worker himself from the hold which some trade unions could have over him in regard to political and economic affiliation with which he was not in sympathy" (SR.64jp. 13). Pavlov, the USSR representative, objected. He did not think that "the right not to join a trade union also required specific mention. He did not understand how, in a well organized trade union system which lived up to its ideals, a worker needed to be protected against his own union, the precise function of which was to protect his interests" (p. 15). The small subcommittee which broke up the article on work into four paragraphs reported this option for the union rights paragraph: "Everyone is free to form and join trade unions (of his own choice) for the protection of his interests" (E/CN.4jl14). There had been disagreement about the clause in parentheses, and Roosevelt ex­ plained that "certain members had contended that the words 'every one is free to form or join trade unions' already implied that the individual was free to choose the trade union, but the United States delegation wished to retain the words 'of his own choice' for the sake of clarity" (SR.66jp. 2). In other words, the United States favored the open shop option and sought to have that written into the Declaration. Wilson of the U.K. objected to the phrase "of his own choice" because it gave the impression that "any individual could join any trade union," which he thought was a misleading statement (p. 2). Malik, the Lebanese representative, asked why the for­ mula "every one has the right" was not used and was told by Hansa Metha, the Indian delegate, that the phrase " 'every one is free . . . ' left it to the individual to decide whether or not he wished to join a trade union" (p. 3). This answer amounted to an endorsement of the open shop policy. Roland Lebeau of Belgium pointed out that "it was not only a question of the right of the individual to join a trade union, but also [of] his right not to join" (p. 3) . The words "of his own choice were [therefore] redun­ dant." Hearing this explanation and seeing that the phrase "is free" already carried the U.S. point of view, the chairman, "speaking as the representative of the United States, withdrew the words 'of his own choice,' in order" to simplify the voting (p. 3). Fontaina did not like the withdrawal of the disputed clause. He argued that if the paragraph

1 76

Chapter 5

were to be retained, it should be interpreted as meaning that individuals were not only free to join, but also free not to join trade unions. Fontaina understood why the USSR representative, who had only seen USSR trade unions, could not imagine any worker wishing to remain outside a trade union, for a USSR worker who left his trade union would have no work. Uruguay, how­ ever, among other countries, had many trade unions, which could be roughly classified into two politically opposed categories: those with a socialist trend, and those with a communist trend. Fontaina cited a case in his country where a socialist trade union had promoted a strike for an increase in pay; when the increase was obtained for all workers, whether members of the social­ ist or communist trade union, the communist trade union had organized a strike for a further i ncrease, with the result that the factory In question had closed and all had suffered from a long period of unemployment. In view of such a case, it was essential that the right to join trade unions should be accompanied by the right not to join. (p. 4)

The clause "of his own choice" having been withdrawn, the Commission approved the union rights paragraph of the article on work by 12 votes with 3 abstentions. The Uruguay-USSR exchange explains why the delegation from Uruguay felt strongly that the open shop policy should be written into the Declaration. It sought to do that by submitting two amendments to the Third Committee. For what was then Article 20 (on association) it proposed this second paragraph : "No one can be com­ pelled to belong to an association" (A/C. 3j268). And for what was then Article 21 (on work) it proposed this additional paragraph: "No one may be compelled to belong to a trade union" (AjC.3j268) . Both were meant to insert the open shop principle into the Declaration. The first was adopted and the second rejected. Since the first of these two amendments ended up in the final product as Article 20's second paragraph, it would seem on first reading that the Universal Declaration subscribes to the open shop policy of not forcing any one to belong to a trade union, for a trade union is "an organization." While this is indeed how the Uruguayan sponsors of that text meant it to be read, that is not its objective meaning. I give two reasons for this exegetical limitation. First, the drafters "rejected" or "forced" Uruguay to withdraw the other amendment that said that no one may be forced to belong to a trade union. If the drafters had really wanted to commit the Declaration to an open shop policy, they would not have applauded the withdrawal of this other provision, which they did. This withdrawal or "rejection" limits the scope of what readers of the Declaration may read into Article 20, paragraph 2. Secondly, while the intentions of the Uruguayan delegation and some of its supporters were focused on union issues, some of the other supporters of that paragraph had a different ratio­ nale in mind. The amendment ("No one shall be forced to belong to an organization" ) passed because not all Latin American delegations viewed the issue of trade union rights in the same light.55 Emilio Oribe, a representative from Uruguay, "did not consider it redundant to state that everyone was free to belong to an association or free not to belong. Recent history had shown," he said, "that even in highly developed countries that particular right was not always respected" (p. 431). Cassin, the French dele­ gate, thought this amendment was "a valuable addition to the text, which should be adopted" (p. 434). "From the point of view of democratic processes and especially as regarded trade union righ ts," Fernand Dehousse of Belgium, also supported the Uru-

The Socialist Shape of Work-Related Rights

1 77

guayan amendment. Plaza, the Venezuelan delegate, added his voice on behalf of the "open shop" concept. These remarks support the open shop interpretation of Article 20's second paragraph. But not enough to explain the 20 to 14 votes, with 9 abstentions, by which it was adopted (p. 445). Other rationales played a role in its adoption. F. Corbet of the U.K. thought the Uruguayan amendment "raised a new and controversial idea. . . . If, for example, association could mean a trade union, the Uruguayan amendment could be interpreted to prohibit the closed shop; yet the Committee would probably agree that such a prohibition should not be included in the declaration. She could therefore not support the Uruguayan amendment" (p. 436). A. M. Newlands of New Zealand also thought this amendment "raised certain special difficulties. . . . It was sometimes essential, in the interests of a particular group of individuals, to impose conditions for belonging to an association, and it was sometimes even necessary to demand that all members of the groups concerned should belong to the association. An example was that of professional associations responsible for supervising the con­ duct of those carrying on some special profession. In New Zealand that was the case with the bar associations" (p. 438). Alan Watt, the Australian delegate, agreed with the practical objections that had been raised against the amendment. He felt that it "was hard therefore to set up such a general principle. If the Uruguayan amendment were rejected, it would not mean that anyone might be compelled to belong to any asso­ ciation whatever; the question would remain pending and would be studied at a later date" (p. 439). He also meant that if the amendment did pass, that would not automatically pro­ hibit closed shops. Democracy in the workplace would still be viable and that would allow for the possibility of a closed shop under certain specified local conditions. We should therefore interpret the Uruguayan amendment as a statement of general prin­ ciple that does not bar, circumstances being that way, the policy of closed shop or the mandatory membership in professional organizations if one is to practice a particular profession like medicine or law. The fact that the other Uruguayan proposal ("No one may be forced to belong to a trade union") was withdrawn for lack of support means that we should look for non-union rationales for the adoption of Article 20's second paragraph. Several such come to mind. The third paragraph of Article 26 (on education) gives to parents the "prior right" to decide what kind of an education their children should be given (see Chapter 7). This right to set up and control one's own educa­ tional institutions, instead of being forced to join the majority or state-run schools, was adopted to prevent a repetition of the indoctrination and brainwashing in which the Nazis had engaged when they forced parents and children into Nazi-controlled educational associations. The same freedom is explicitly laid out in Article 18 on the right to freely exercise one's religion. I suggest that we read Article 20's second para­ ,graph as of one piece with these other provisions and contrary to the intentions of its sponsors - not as an endorsement of an open shop policy, which words do not occur in the text and probably were not on the minds of most of the drafters who sup· ported the paragraph. It is, for instance, hard to see why the USSR delegation would have supported an avowedly open shop measure. Yet it did support this paragraph, -

1 78

Chapter 5

for after the vote Pavlov, explained that the Uruguayan amendment had "considerably improved the text of article 18 [20] ," which is why "he had voted for that amendment, which however did not fully satisfy him" (p. 447). Mter the adoption ofthe second paragraph of Article 20 the delegation from New Zealand sought to forestall an open shop reading of this paragraph with the follow­ ing substitute for the union paragraph in the article on work: "Everyone has the right to the protection of his interests through the membership of trade unions" (A/C.3jp. 267). This phraseology suggests that the only way for the interests of workers to be protected is through union memb ership, which can be read as a demand for a closed shop and was meant that way by the New Zealand delegation. James Thorn, a New Zealand delegate, indicated that "as the article now read ['Everyone isfree to form and join trade unions for the protectio n of his interests'] the individual was free to join or not to join a trade union. The New Zealand Government would be unable to ac­ cept any text which left any doubt about the power to compel workers to join unions." He explained the "enlightened labor legislation" of his country and insisted that "the Declaration contain nothing incompatible with compulsory trade union membership He reminded the Committee that President Thuman had pledged himself to abolish the Taft-Hartley Act which did away with the 'closed shop.' That step would join thir­ teen to fourteen million trade unionists in the U. S. with tens of millions who existed elsewhere . . . . He congratulated the Uruguayan representative on having withdrawn his amendment ['No one may be compelled to join a trade union'], as it would have been unacceptable to millions of trade unionists." He said that the Committee "would appear ridiculous if, after accepting the Uruguayan amendments to article 18 [on as­ sociation] , it made the same mistake in an even more obvious form" (p. 518 ) . Thorn "recalled that the Third Session of the Commission had interpreted the words Everyone is free . . to join trade unions' as meaning that an individual was also free not to join. Thus interpreted article 21 [23] contained the same principle as that to be found in the withdrawn Uruguayan amendment. He wondered whether the Uruguayan representative had in fact withdrawn his amendment for that very reason" (p. 523). Watt, his colleague from Australia, supported him in this contention. He also re­ gretted that Article 23's third paragraph st ated that "Everyone is free to form trade unions" instead of "Everyone has the right to form . . trade unions." To say the former "would be contrary to the legislation of some countries. In New Zealand and Aus­ tralia, for example, it was inconceivable that a small number of persons should form themselves into a trade union which would appeal to arbitration boards and oppose .

,

.

.

.

.

powerful trade unions with thousands of members . . . . Without going as far as New Zealand, where trade unionism was compulsory, Australia had had for fifty years trade

unions to which the maJority of workers belonged" (pp. 529-530). Henryk Altman, a delegate from Poland, joined the New Zealand representative "in welcoming the withdrawal of the Uruguayan amendment, which would have de­ prived the workers of the possibility of defending their rights through trade unions. The solidarity of the workers would have been broken and employers would have been able to impose arbitrary conditions of work. The Taft-Hartley Act in force in the United States, but recently condemned by the President of that country, was evi-

The Socialist Shape of Work-Related Rights

1 79

dence of what might happen if an amendment such as had originally been proposed by Uruguay were adopted." !6 Corbet of the United Kingdom did not want to take a pos ition on the merits of closed shop which had been the subj ect of con·

troversy for a long time, but she did not consider its prohibition to be a fundamental human

right, and consequently, it should not be included in the Declaration. The chief purp ose of

par ag raph

3 of article 21 [23] was to state the fundamental right to form and to join a trade 21 [23] expressed that right perfectly clearly. . . . [ I ] t would be

uni on . The basic text of article

undesirable for the Declaration to state the principle that the individual was free to exercise this right

not

to join a trade u n ion ,

as

was happy that it had been withdrawn .

was suggested by the Uruguayan amendment, and she

. . . Not only would there have been obvious difficulties

in applying it, but it would also have had the effect of eliminating the principle of compulsory membership of a trade union of a parti cu l ar profession and the closed shop. (p.

527)

Mohammed Habib, a delegate from India, said his country had studied labor legislation of other countries, including that of New Zealand, "and it might have to resort to compulsory trade union membership in order to ensure the organization and the protection of labor" (p. 529). He favored the New Zealand amendment be­ cause "the original text . . . seemed to have been prompted by the concepts of the nineteenth rather than the twentieth century. The day when any agreement between workers concerning their rightful claim was considered a conspiracy had long passed" (p. 529). The New Zealand closed shop amendment was rejected by 18 votes to 10, with 1 4 abstentions (p. 537). Mter all the different parts of the article on work were accepted, the Third Com­ mittee voted down the article as a whole. A subcommittee was set up to see what could be done. It was in th is smaller group that "upon the recommendation of the New Zea­ land delegation" the "is free to form and join . . ." was changed to "Everyone has the right to form and join trade unions for the protection of his interests" (A/C.3j363). This new text for the paragraph was adopted by the whole of the Third Committee with an overwhelming vote of 41 to none and no abstentions (p. 689). Newlands of New Zea­ land "noted that the Sub-Committee had changed the words 'Everyone is free . . .' to 'Everyone has the right . . .' in order to make the language conform to the rest of the declaration." She said she would support that paragraph with a reservation. Later, in a long statement she said that as far as trade union fights were concerned the New Zea­ land delegation would consider itself to be bound by the fourth paragraph of Article 23 and not by the second paragraph of Article 20 (p. 691). That is precisely what the majority of drafters intended be done with union rights in the Declaration. They are where they should have been all along, in the article on work with the question of closed and open shops to be decided as local circumstances might dictate. The drafters took the same hands-off approach to the right to strike, which is another powerful tool unions have in their protection of the interests of workers. In the Third Committee the Swedish delegation submitted the following amendment to the article on work: "Everyone has the right to cease to work when finding it i mpos­ sible to work on the economic terms existing or offered" (A/C.3/267). The accom­ panying rationale argued that "freedom of organization is important as a citizenship

1 80

Chapter 5

freedom only if completed by the natural liberty to abstain from work when the indi­ vidual worker feels that he should not go on working on the economic terms existing or offered." Like the right to unionize, this even more specific right was thought to be needed to address the existing power imbalance between workers and employers. While the right to unionize can be seen as a way to implement the right to decent wages and good working hours, the right to strike can and was seen by most of the drafters as a way to implement to right to unionize. The argument for its inclusion was that without the right to strike the right to unionize is meaningless. Said Sten-Arvid Sunfeldt, the Swedish delegate: "The object of the Swedish amendment was to make clear that the right to form and join a trade union was valueless unless the trade union concerned was allowed to protect its mem­ bers' interests in every way compatible with the provisions of Article 27 [29] . In that connection he drew attention to the position of trade unions in Nazi Germany and Fascist Italy. They were allowed to continue to exist, but did not have the right to strike and, without that right, the liberty of the trade union was an illusion" (p. 516). In this way each right in the Declaration has imbedded within itself a whole series of potential domestic legal rights that help make the initial, abstractly stated right come true in local circumstances. The more we descend to the local level the greater the differences become and the more room there is for honest disagreements about the alleged necessity of a certain right. Probably as a result of this kind of consider­ ation, Sunfeldt told his colleagues that his delegation had had second thoughts and had decided to withdraw its amendment in the hope that this issue would be further elaborated by the International Labor Organization, which was "the appropriate body to carry out that work" (p. 516). The amendment was not dropped from consideration because the Polish delega­ tion took over the sponsorship of it. Altman said he "regretted the withdrawal of the Swedish amendment" and "wished to put forward that amendment again." His rea­ son was that "the right to strike was of m:Yor importance and although the study of that right might be entrusted to the International Labor Organization as a special­ ized agency, the right itself should be proclaimed in the declaration" (p. 522). The right to strike was not discussed much and it was rejected by a roll call vote of 15 against, 13 for, with 3 abstentions. The positive votes were cast by Argentina, Belgium, Burma, BSSR, Cuba, Czechoslovakia, Haiti, Mexico, Poland, UKSSR, USSR, Uruguay, and Yugoslavia. Not many explanations of the votes were given, but some of the very pro-union delegations that abstained (Australia, Brazil, Chile, Dominican Republic, France, Norway, Sweden, and Venezuela) probably did so for the reasons given above. Most of these abstaining delegations had spoken up for strong union rights. Some of them, as we just saw in the case of Australia, had explicitly endorsed the right to strike. But they did not think that a detailed right like this should be part of the more abstract list that made up the Declaration. Rather, these kinds of implementation de­ tails were to be left up to local authorities to work out for the best interests of the workers in that time and place. This same reasoning had led to the rejection of the closed and open shop amendments. Even some of the negative votes can be explained in this way. L. J. C. Beaufort, the Dutch delegate, for instance, traced the history of unionism from its birth in the antagonism of the nineteenth century to what he saw as the much more cooperative spirit prevailing in the twentieth century. "He wished .

.

.

The Socialist Shape of Work-Related Rights

181

to point out that he had no objection to the right to cease working when conditions were unjust and if it could be reasonably expected that only a strike could obtain an improvement. . , . [H]owever, he considered that the right to strike was out of place in the Declaration" (p. 530). We have seen that the drafters judged the right to unionize as sufficiently impor­ tant to give it a place on the list of human rights and to rank it with the more abstract rights of association and work, rights it implements locally and domestically. But they did have to draw the line between what counts as a human right and what counts as a local-even if legal- measure of implementation somewhere. These discussions and votes on the open or closed shop policy and on the right to strike show that the drafters were aware of the crucial distinction between an abstract right and its local or regional measures of implementation. They knew that one can generate an almost end­ less list of "human rights" if one pulls all the measures of implementation into the defi· nition of the right itself. They knew this could be done, but stopped short of doing it. 5. 5 Conditions: "Human Labour Is Not a Merchandise"

The third paragraph of Ar ticle 23 reads as follows: "Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection." The difference between this end product and what the First Drafting Ses­ sion adopted is not all that great. Cassin had split the right to work from the rights to the conditions under which it is performed. He began the article on the conditions of work with a phrase (human labor is not a merchandise) which he had borrowed from the World Health Organization. So the First Drafting Session adopted: "Human labour is not a merchandise. It shall be performed in good conditions and shall secure a decent standard of living to the worker and his family" (21/p. 80). This article is the clear forerunner of Article 23's third paragraph. Though the phrase "human labour is not a merchandise" was dropped from this original text, the message of the para­ graph, as we have it, is still the same. It is an expression of the objectives of the trade union movements that, as we saw in the preceding sections, helped shape this part of the Declaration. Article 24's rights to decent working hours and to periodic holidays with pay are also part of this same socialist philosophy about human labor not being a commodity. I will deal first with the rights to favorable remuneration and then with those to leisure time. In the Working Group of the Second Session of the Commission Cassin reluc­ tantly agreed to drop the opening WHO phrase, but a reference to pay commensurate with ability and skill and the right to join a union was added.57 The Working Group added a second paragraph dealing with the equal rights of women (see 3.5), and adopted the following first paragraph: "Everyone has the right to receive pay com­ mensurate with his ability and skill, to work under just and favourable conditions, to join trade unions for the protection of his interests in securing a decent standard of living for himself and his family" (57/p. 13). The full Second Session left these provi­ sions unchanged. The same is true for the Second Session of the Drafting Committee. Being in a mood to make cuts and streamline things, the Third Session separated out the right to form and join a trade union and adopted the following succinct para-

18Z

Chapter 5

graph on the conditions of labor and pay: "Everyone has the right to work, to just and favourable conditions of work and pay and to protection against unemployment" (E/800). The Third Session changed the Geneva phrases to "receive pay commensu· rate with ability and skill" and "to work under just and favourable conditions" to the single phrase "to just and favourable conditions of work and pay." The starter motion for the details to be put back in was provided by the Cuban delegation to the Third Committee. The draft declaration submitted by the Cuban delegation to the First Drafting Session had included an Article 9 which guaranteed the worker "conditions fitting to his status as a human being" and a "remuneration in proportion to the value of his contribution to the community" (AC.l/3/Add.ljp. 314). And Article 61 of the Cuban constitution at that time also guaranteed "a minimum salary or wage, which shall be determined in keeping with . . . the normal necessities of the worker, from material, moral, and cultural considerations, and considering him as head of the family" (p. 317). In the late 1940s these kinds of rights were standard features of Latin American constitutions, though not in those from around the North Atlantic.38 Behind these clauses lies the socialist thesis that "human labour is not a merchandise" and that a worker's dignity and that of his family is not to be denied or diminished by the bargaining process that usually precedes employment. It is against this background that we must read the Cuban proposal (to the Third Committee) to have the second paragraph of the article on work say: "Every person who works has the right to receive such remuneration as will, in proportion to his ca· pacity and skill, assure him a standard of living suitable for himself and his family" (AjC.3/232). This article was to be voted on four times. In the first two rounds the drafters' attention was still focused on the rights to protection against unemployment (of the first paragraph) and to unionize (of the fourth paragraph), and these rights to a decent pay and standard of living were not discussed much. In the first round the Cuban paragraph was adopted by the narrow vote of 18 to 17, with 7 abstentions, and in the second round by an equally narrow vote of 17 to 16, with 5 abstentions (pp. 536, 538). Both votes, done by roll call, are very revealing. Those who voted for the paragraph in the second round are: Poland, UKSSR, USSR , Venezuela, Yugo· slavia, Argentina, BSSR, Chile, Cuba, Czechoslovakia, Denmark, Dominican Repub· lie, Ethiopia, Haiti, Honduras, India, and Mexico. Clearly, these rights were carried by a combination of Communist and Latin American socialist votes. With the exception of Denmark, all of the North Atlantic delegations voted against this paragraph. Thus, once again, a Latin American socialist initiative, with a Communist assist, ensured the presence of several of the new rights in the Declaration. An enormous crisis ensued in the Third Committee when it ado pted four sep a·

rate paragraphs for the article on the right to work, but rejected the article as a whole. The Committee voted to reconsider the article, which was an opportunity for all the items to be argued all over again, each with the risk of not being re-adopted. The subcommittee that was to solve this problem and "prepare a fresh text" for the article consisted of representatives from Belgium, Cuba, Ecuador, France, Greece, Lebanon, New Zealand, Poland, the USSR, the U.K., and the U.S. (AjC.3/363). This lineup shows that if the North Atlantic delegations and their allies had wanted to block the social· ist agenda they probably could have done so. That they did not do this is testimony to the unity of the rights in the Declaration.

The Socialist Sh11pe of Work-Related Rights

183

This subcommittee adopted the following text: "Everyone who works has the right to just and favourable remuneration, supplemented if necessary by such other means of social protection as may be required to meet the needs of his family" (A/C.3/363). For reasons of economy I shall be referring to this text as "the paragraph" and to the part after the comma as the part on family allowances.!l9 The subcommittee voted by 6 votes to 2, with 3 abstentions to adopt the paragraph. This was the third of the four votes that were to be taken on this measure. The two negative votes were cast by the United Kingdom and the United States. The subcommittee's report tells us that the phrase "social protection" -which was not part of the Cuban text and which did make it into the final product-was proposed by the delegation from Ecuador and adopted by 5 votes to 2, with 4 abstentions.40 When the paragraph came before the Third Committee, a minority of delegates thought that because it included the right to a family allowance it should be deleted from the article on work. They felt the paragraph overlapped with the article on social security, that is, what is now Article 25. But the majority wanted to keep the para­ graph in the article on work. As they saw it, the question of just remuneration had to do with people who already have employment, while the questions of social security dealt with the rights of those who for reasons beyond their control could not work. That had been the point of starting the paragraph with the qualified "Everyone who works" instead of with the usual unqualified "Everyone." P. C. Chang of China belonged to the group that saw an unnecessary overlap with the article on social security. He thought that the family allowance part of the para­ graph "should be in article 22 [25] rather than article 21 [24] " (pp. 675, 684) Roose­ velt agreed with this and articulated the position that the needs of a worker's family should not be taken into account (other than by way of a minimum wage) when his just remuneration was being calculated. She found the article "acceptable, except as regards [the paragraph] . Certain countries, including the United States, had learned from experience that the scale of wages should be fixed by assessing the work done, and not on the basis of considerations foreign to the idea of labor proper. The mini­ mum wage was moreover calculated not only for the worker, but also for his family. Social protection for the family was covered by Article 22 [25] ." Her delegation asked that the paragraph be divided for the vote into two parts and said it would vote only for the first part (p. 679). Corbet of the U.K. said that her delegation was prepared to support the article, "with the exception of the part . . . [dealing with family allowances] . The proper place for the statement of that idea was article 22 [25] ; if it were retained in article 21 [24] , it might prejudice the free discussion of wages between trade unions and employers. While she agreed that the needs of the family must be provided for, she thought that article 22 [25] already did that." In consort with the United States delegation she "re­ quested that the clause in question should be put to the vote separately" (p. 680). Laskhmi Menon of India said she, too, would vote against that part of the para­ graph:u So would the delegates from Ecuador and Egypt, they said (p. 679). But the tally I give in a moment shows that all three of these delegations voted for the para­ graph. Watt, the delegate from Australia, made the point that the part of the paragraph before the comma .

1 84

Chapter 5

might be interpreted as giving everyone the right to receive just remuneration for work done, independently of the needs of his family. That interpretation would not be in accordance with the labor relations in force in Australia, where, by means of a system of minimum wages sup­ plemented by a scale of allowances, the personal needs of the worker and those of his family were both taken into account. The second part of [the paragraph] provided that, If necessary, the remuneration would be supplemented by other means of social protection: in Australia, for example, family allowances were paid directly to all mothers regardless of the situation of the fathers. (p. 676)

Australia, he said, could not accept "a provision that would give the worker wages which would be just only in relation to his personal needs" (p. 676). Cassin gave the paragraph his qualified support, "as the Commission had not seen fit to retain [France's] . . . amendment to article 22 [25] on that subject, and as it was better to enunciate an important principle in a less suitable place than not to enunciate it at all" (p. 678). Responding to the overlap argument, P�rez Cisneros said he could not agree . . . that the matter of family allowances was already covered by article 22 [25] . That article dealt with social security for those who for various reasons were unable to work; article 21 [24] spoke of remuneration adequate to the needs of those who did work and of their families. Thus, lt protected the dignity of the working man, who should not be dependent on philanthropy. It was not correct to say that the passage might prejudice the question of wages; minimum wages were clearly covered in the article with respect to the families of a normal size. Some provision had to be made, however, for those who had to support people too old to work, invalids, or numerous children. It was the duty of society to make sure that such families, too, could lead a life compatible with human dignity; insufficient calories made poor citizens. (p. 682)

He was supported in this contention by Dehousse, who took the position that the phrase "supplemented, if necessary, by such other means of social protection as may be re­ quired to meet the needs of his family" should be retained in article 21 [24] , which dealt with the rights of the worker and with the question of wages. It should not, as had been suggested, be considered in connection with article 22 [25] , which dealt with the rights of the unemployed and with social security. Wages should be based not only on a person's productive capacity but also on his own and his family's needs. Twenty-five years' experience in his country had shown that family allowances amounted to only 6 per cent of the total sum paid out in wages. It could not be claimed, therefore, that the burden was too great to assume; moreover, the declaration should proclaim the principle but refrain from going into technical detail. He warmly sup­ ported [the paragraph].42

At the last minute Kaminsky, the Byelorussian delegate, introduced the following new text for the paragraph: "Everyone who works has the right to just and favorable remuneration ensuring for his family and himself an existence worthy of human dig­ nity, and supplemented, if necessary, by [other] means of social protection." 48 Kamin­ sky explained that with the comma placed further back, the needs of a worker's family were made part of the calculation of his just remuneration, which "would have the effect of ensuring a decent existence for the worker" (p. 688). With this text the main social protection of a dignified life for a worker and his or her family is his or her wage

The Socialist Shape of Work-Related Rights

1 85

income or property. It is only in exceptional cases that "other means of social protec· tion" are thought necessary. The Byelorussian text was put to the vote in two parts, but the cut was not made at the comma. The first vote was on the phrase "Everyone who works has the right to just and favorable remuneration," which was adopted by 42 votes to none, with 1 absten­ tion (p. 689). A roll-call vote was taken on the rest of the Byelorussian text- "ensuring for his family and himself an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection."« These same kinds of provisions had initially been adopted by a margin of only 1 vote. Now, in the fourth round and after all the discussion back and forth, this text was adopted by the wide margin of 29 votes to 6, with 7 abstentions.46 Those voting against the text included five delega­ tions from around the North Atlantic (Norway, Sweden, the U.K., the U. S., Canada), as well as Syria. The delegations from Greece, Paraguay, the Philippines, Thrkey, Vene­ zuela, Yemen, and China abstained. Of the 27 positive votes cast, 17 were supplied by the Latin American-Communist alliance, two by Australia and New Zealand, 4 by the North Atlantic region (Denmark, Belgium, France, the Netherlands), and the 4 four coming from Burma, India, Iraq, and Liberia. Once again, the socialist-communist alliance had made a clear difference in the shaping of the Declaration. Many of those that abstained or voted against this part of the paragraph did vote for the article as a whole, for it was adopted by an overwhelming 39 votes to 1, with 2 abstentions (p. 689). This sole negative vote came from the United States. Roosevelt explained that although her delegation was in agreement with paragraphs 1 and 3, "it could not ac­ cept the second sentence of paragraph 2." She was referring to the family allowance part of the paragraph. "In the first place," she said, "it would be a matter for long and difficult discussion to decide exactly what was meant by a 'decent existence.' Second, the principle of the supplementation of wages would prove extremely difficult of im­ plementation. Different countries had different methods of giving social protection to the worker who needed more than he was able to earn. To assess a worker's wages by his needs rather than by the work he performed was, in her opinion, a false principle. She had therefore voted against article 21 [24]" (p. 690). As did most of the provisions that have been discussed in this chapter, the rights to rest and leisure time also originated in the tradition of Latin American socialism. Almost none of the constitutions Humphrey had before him contained this right, except those from that area. In that tradition he found the following constitutional rights: "weekly rest with pay" and annual leave with pay" (Brazil) ; "right to paid annual vacations" (Costa Rica); "one month of vacation with pay" and "national holidays" (Cuba); "weekly rest of forty-two continuous hours" and "annual holidays" with the stipulation that "wages shall be paid for these vacations as well as for the weekly days of rest and legal holidays" (Ecuador); "one day of rest . . . remunerated" and "paid an­ nual vacations" (Guatemala); "for each six days of work there shall be one day of rest" (Honduras); "at least one day of rest for each six days of labor" (Mexico) ; "a weekly day of rest" and "month of vacation with pay after a year of continuous work" (Nicaragua); "in addition to weekly rest, every worker will have the right to remunerated vacations" (Panama):�6 Humphrey was by no means selective. Also, the constitutions of the BSSR and UKSSR used the same wording as did that of the USSR, which stated that citizens

186

Chapter 5

of the USSR "have the right to rest and leisure" and "annual vacations with full pay for workers and employees and the provision of a wide network of sanatoriums, rest homes and clubs for the accommodation of the working people" (Art. 119). Humphrey summarized all of these options into a simple "Everyone has the right to a fair share of rest and leisure" (A/C.l/3). Cassin added to this the seemingly puz­ zl ing "and to a knowledge of the outside world" and listed it right after the right to an education:l7 The article was sponsored by Santa Cruz of Chile and read into the record together with the other rights discussed in this chapter (SR.IO/p. 1). When Cassin came with his second set of revisions, Chang, the Chinese representative, suggested that "the right to a fair share of rest and leisure might be separated from the right to the knowledge of the outside world, which could be included in the right to an edu­ cation" (SR.l5jp. 2). Cassin responded that he had not put it with the right to work because "everyone, not only labourers, should have the right to leisure" (p. 2). Wilson, the U.K. delegate, supported this position and suggested that the article be deleted because its contents "might be covered by provisions on education and freedom of in­ formation, and it would also involve the question of freedom of travel" (p. 2). Coming from nations that did not have these kinds of constitutional provisions, both men had misunderstood the point of the right in question. The correction was made by Vladimir Koretsky of the USSR, who "remarked that the right to rest and leisure should be treated in relation to working conditions and circumstances of social life, and that the right to knowledge of the outside world was a matter of information. Referring to countries where workers still do not enjoy the right to a vacation, he thought that it would be better to place this article with the right to work" (p. 2). Cassin accepted this suggestion, but the article was not moved until the very end of the process.48 The understood (but not yet restored) trade union context for these righ ts was further solidified by the Working Group of the Second Session. Bogomolov of the USSR felt that "trade union organizations . . . should be empowered to supervise the protection of the e mployees ' right to leisure" (SR.B/p. 7). Roosevelt thought it would be difficult to implement this right because different countries had "different systems of employment." She did, however, think that a phrase like "by agreement between worker and employer, or by law" might be added to the text to cover this point (p. 7) . General Romulo, the delegate from the Philippines, "proposed the deletion of 'a fair share' as such a limitation had not been included in the text of the previous articles." Instead he proposed this add ition to the text: "Rest and leisure should be ensured to everyone by laws or contracts, providing [in particular] for reasonable limitations on working hours and for p er i odic vacations with pay."49 The Group decided not to in­ clude these details in the text itself, but to add them by way of a commentary instead (p. 9). I t decided by 4 votes to 0, with 2 abs tentions, to retain as text the formula it had received from the Drafting Committee: "Everyone has the right to a fair share of rest and leisure" (p. 8). Bogomolov had been insisting all along that the article state how this right to rest and leisure was to be implemented. One way to do that would be to include the provi­ sion "with pay " in the text of the article, which is what Vladislav Ribnikar, the Yugoslav representative, proposed when the article came up for discussion in the full Second Session. He proposed that the words "periodic vacations with pay" which appeared in

The Socialist Shape of Work-Rel11ted Rights

187

the comment should be included in the article itself, for "the right to rest without pay meant nothing" (SR.40jp. 14). Lord Dukeston, his colleague from the United King­ dom, agreed that "the text should explicitly mention that rest with pay was granted to employees" (p. 14). This led A. C. Victorica, the representative of Uruguay, to pro­ pose the following amendment: "Employees and workers have the right to periodic vacations with pay" (p. 14). When Dehousse of Belgium suggested that instead the en­ tire Philippine commentary be made an additional paragraph to the text, Victorica agreed. This was done by 11 votes with 2 abstentions (p. 15), The Second Session ofthe Drafting Committee did not discuss this article and the two paragraphs were passed on unchanged to the Third Session of the Commission, where the mood was to keep the Declaration short and simple. The U.K. and Indian delegations jointly sponsored the deletion of the newly added second paragraph which spelled out how the rest and leisure of the first para­ graph was to be acquired. Pavlov, the USSR delegate, immediately objected to this pro­ posal. "Limitations on working hours was an important point," he said, "for a worker could not possibly enjoy his leisure if he worked 12 hours or more a day" (SR.69jp. 10). The chairman, Roosevelt, sought to put a good face on the deletion with the argu­ ment that "the Declaration had no juridical value. Consequently, mentioning that right [to limitation of working hours] in the Declaration was a meaningless gesture. In the United States it was recognized by law and, in the majority of cases, established by contracts. Mentioning it in the Declaration would be tantamount to a pious wish, without any legal guarantee whatever, and would do more harm than good" (p. 10). Pavlov immediately saw that Roosevelt had made a faux pas. "If that argument stood," he said, "it was useless to go on with the drafting of the Declaration. He thought that the Declaration would derive its value from the moral strength and authority of the United Nations. The workers' right to rest should therefore be written into the Dec­ laration" (p. 11). Stepanenko, his colleague from the BSSR, also responded to Roose­ velt's "pious wish" argument. He repeated his earlier argument that "workers would not be able to afford vacations unless there was a provision for vacations with pay." Go Vilfan, the Yugoslav delegate, also spoke in favor of the retention of the paragraph. 51 But the desire to cut was too strong and the majority of delegates looked upon this second paragraph of the article as an unnecessary measure of implementation.52 Even Sender, who represented the AFL, "did not object to its deletion if there had to be a general article on all the economic and social rights," which Article 22 was to be (SR.69jp. 11). She made the adoption of such an article a condition of her consent to the planned deletion of the second paragraph (SR.70jp. 3). The U.K.-India proposal to go back to just one simple statement ("Everyone has the right to rest and leisure") was adopted by 9 votes to 6. Eight amendments to this article were submitted to the Third Committee. If we discount a French amendment proposing "the right to an equitable share of rest and leisure," then the other amendments fall into two groups.&& Two of the amendments sought to reintroduce the sort of implementation language that the Third Session had dropped. The USSR paragraph did this by proposing as an extra paragraph the Philippine-sponsored provisions that had been dropped by the Third Session (E/800). The New Zealand amendment did the same thing, except that it wove these imple­ mentation ideas into the already adopted first paragraph, as follows: "Everyone has

1 88

Ch11pter 5

the right to rest and leisure, to reasonable limitation of working hours and to p eriodic holidays with p ay" (A/C.3f359). This text was adopted by 25 votes to 4, with 10 absten­ tions, and, except for som e m inor stylisti c changes, is what we have (p. 614). The other five amendments that were submitted all shared various degrees of the conce pt and the right to self-development or self-actu ali zation. Because their propos­ als had been very similar, the Phi l ippine and Argentine delegations decided to subm it the following joint text: "Everyone is entitled to due rest and leisure for his sp i ritual, cultural and physical well-being" (AjC.3f358). At the time of t h e j oint submission, Be­ nigno Aq uino, the Phi lippine delegate, indicated that he though t "health" had to be deal t with in the article and that "it was also essential to state for what purposes leisure should be used," which the new j oint amendment did. The Cuban delegation pro­ posed that the article read: "Everyone has the right to leisure and to the opp or tun i ty for advantageou s use of his free time to his sp iritual, cultural, and p hysical benefit" (A/C.3j261). The Egyptian (AjC.3j264) and Panam anian amendments (A/C.3/280) were written from the same persp ective of self-development. All of these amendments have in common that they see the right to rest and leisure as aimed at the full devel­ opment of the human p erson. They we re inspi red by the socialist view that workers do not merely have the right to rest and leisure so that they can be better and more effi­ cient pro ducers of profit for those who own the modes and means of production. I n other words, "hum an labour is not a merchandise." Perez Cisneros, the Cuban delegate, did make this very point, but not until most of the discussion had already taken place. He said that "it was essential to di sti n­ guish a modern declaration of rights from those of the previous centuries. The latter had spoken of man as the citizen; today, such a declaration should stress man as a worker. That was the basic th ought underlying the Cuban amendment . . . .To stipu­ late the right m ight be insufficient unless it were also stated that it should be used for mental, cultural and physical developmen t . . . [i.e.] the development of the human personality. . . .The community must be obliged to create the opportun ity for such development" (p. 611). In the socialist tradition the r ight to rest and leisure is linked, as is the right to work itself, to the right to the full development of a p erson's mental, spiritual, physical, and cultural potentialities. This is why initially this right to rest and leisure was intertwined with the right to an education and for a long time was placed just before that article. It was finally moved to its present place right after the ar ticle on work by the Style Committee of the Th ird Committee (A/C.3f395). The present place of the article reflects the terms in which most of the discus­ sions. about thes e righ ts had been conducted, namely the conditions of work. In the Third Committee, too, the sponsors of these amendments did not stress the self­ developm ent rationale. I nitially, Perez Cisneros gave the more low-key rationale that "certain social concepts [had been added] to the right to rest in order to avoid any possibility of its being interpreted as the right to laziness" (p. 608). The same desire to avoid the charge of l aziness had stimulated the Ph ilippine delegation to add the con­ cept of health to the article (pp. 608, 612). Both Corbet of the Un ite d Kingdom and Roosevelt of the U.S. felt that most of the self-development amendments "repeated social security ideas" and therefore did not add "anything new" (p. 609). Abdul Kayaly, the Syrian delegate, gave one indication as to why the m�ority of the delegate s voted for the more limited USSR-New Zealand approach. He thought th at the r ight to rest

The Socialist Shape of Work-Related Rights

189

and leisure "was a right that was of fundamental importance; however, the manner in which the individual utilized his rest and leisure time should not be laid down in the Declaration" (p. 609). This lack of support for the self-development amendments must be interpreted against the alternative the drafters were considering. Pavlov, the USSR delegate, pleaded with them to reinstate the rights to reasonable working hours and vacations with pay, which had been dropped in the Third Session. He repeated that "it was essen­ tial to guarantee [these rights] . . . to those who would enjoy them. Neither rest nor leisure was possible to the man compelled - as he might be in colonial countries - to work fifteen hours a day. The limitation must, of course, not be enforced in such a way as to reduce earning power, for the starving man could obviously not enjoy leisure. He had heard of workers in Bombay under U.K. rule, for example, who had received less food than the prisoners in jail. Such workers could not enjoy leisure. Without a provision to limit working hours article 24 would be hollow." Pavlov also reiterated his earlier point that "unless pay continued during such weekly and yearly holidays there was no possibility of rest and leisure" (p. 610). He "deplored the argument repeatedly advanced by the representatives of the U.K. and the U. S. that such guarantees were inappropriate in the Declaration. It almost seemed as if those representatives failed to take sufficient interest in the rights of the working people. Inclusion of such guar­ antees would not overload the article." 64 Pavlov found support in two very different quarters. Kaminsky, the Byelorussian delegate, told his colleagues that the provisions for paid holidays and vacations in the BSSR constitution "resulted from the fact that the workers owned the means of pro­ duction. Socialism was the basis upon which the right to enjoy rest and leisure rested. Before the revolution of 1917, when the economy of Byelorussia was based on private property, there had been no opportunity for such enjoyment" (pp. 611-612). New­ lands, the New Zealand delegate, said that she had also "been interested in the USSR amendment because her country's laws contained the guarantees mentioned in it. She agreed, however, that it was inappropriate to include them in the declaration in that form. She therefore submitted a new amendment [Everyone has the right to rest and leisure, [including] reasonable limitation of working hours and periodic holidays with pay] incorporating the substance of the USSR amendment." 611 At this point Perez Cisneros, the Cuban delegate, withdrew his amendment "in favour of the New Zealand amendment" (p. 613). This withdrawal cleared the way for two strong votes in a row. In the first, the drafters rejected the USSR proposal by 20 votes to 5, with 12 abstentions. And in the second they adopted the slightly different New Zealand one by an overwhelming 25 votes to 4, with 10 abstentions. All four of the negative votes (Belgium, China, the Netherlands, the United Kingdom) were cast because the delegations involved did not think of these rights as human rights. Each made a comment suggesting that it viewed these provisions as measures of imple­ mentation and as such would be legal rights to be decided upon by the various local authorities and domestic legal systems. Thus, Corbet at one point told Pavlov that his kind of "details should be left to the covenant." 66 Chang explained that he had voted against the amendment "on account of its wording" and because he objected to the fact that the New Zealand text had treated abstract rights and measures of implemen­ tation "on the same logical level" (p. 615). Hilda Verwey:Jonker, a delegate from the

1 90

Ch•pter 5

Netherlands, "had felt bound to vote against the amendment for the reasons given by the Chinese representative."&? The worry the drafters expressed about exposing their document to ridicule was not misplaced. Not realizing that this part of the Declaration was fed by the traditions of trade unionism and socialism, even serious scholars have failed to come to grips with what Article 24 represents.158 The drafters of the Declaration understood the dif­ ference between stating an abstract right and levels of implementation; with respect to work-related rights they were especially torn as to where to draw the unsteady line be­ tween these two realms. The Declaration is not a pure document �d the drafters did now and then tip the scales toward one culture or social system rather than another. However, given the convergence of social structures in our increasingly global world, their selection of the rights discussed in this chapter is not out of line with what most countries and cultural traditions actually have or feel is needed. The rights of Article 24 are in the Declaration to make sure that human labor is not treated as merchan­ dise. If a society could guarantee that dignity in some other way, the drafters would not have objected. In his book Spheres ofJustice Michael Walzer ends his discussion of free time with an observation about the United Nations Social and Economic Covenant, which he points out "includes in its (very long) list of rights 'periodic holidays with pay' - that is, vacations." The Covenant took its very long list and this particular right straight from the Declaration. Comments Walzer: But this is not to define human rights; it is simply to advocate a particular set of social arrange­ ments, which isn't necessarily the best for every society and culture. The right that requires protection is of another sort entirely: not to be excluded from the forms of rest central to one's own time and place, to enjoy vacations (though not the same vacations) if vacations are central, to participate in the festivals that give shape to a common life, wherever there is a common life. Free time has no single or morally necessary structure. What is morally necessary is that its structure,

whatever it is, not be distorted by what Marx called the "usurpations" of capital, or by afailure of communal provision when provision is calledfor, or by the exclusion ofslaves, aliens, and pariahs. Freed from these distortions, free time will be experienced and enjoyed by the members of a free society in all the different ways they can collectively or individually invent.&D

I see nothing in here with which the drafters of Article 24 would have disagreed. They understood that there are different levels of implementation and probably would have wanted Walzer to admit that in the industrial and post-industrial or informa­ tion age the capitalist "usurpations" are an ever present and universal threat. As far as festivals are concerned, many of the paid days off are precisely those occasions. Finally, far more than does Walzer, they would have stressed the connection between reasonable working hours, leisure time, and paid vacations and each person's right to self-development and education. These rights are among those discussed in the next chapter.

Chapter 6 Social Security, Education, and Culture

Most articles in the Declaration are like onions with layers of drafting around an origi­ nal core. In the case of Article 25, the original core is the second half of the first paragraph which states everyone's right to "security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control." To this core were added the second paragraph, which calls for the special protection of "motherhood and childhood" (see Chapter 7) and the first part of the first paragraph, which gives everyone "the right to a standard of living ade­ quate to the health and well-being of himself and his family, including food, clothing, housing, and medical care and the necessary social services." The list of health care rights-the only place in the Declaration where everyone is explicitly said to have the basic rights to food, clothing, housing and medical care ­ is the subject of the first section of this chapter. The social security benefits are the topic of the second section. This list presents us with a problem of interpretation. The items listed in Article 25-unemployment, sickness, disability, widowhood, and old age -are typical of the social security benefits that citizens of modern welfare states receive. Most of these items entered the Decla­ ration by way of Humphrey's Latin American connection with virtually no discussion of each item individually. However, because of a clerical error the phrase "social secu­ rity" was split off from its list in Article 25 and came to stand by itself in Article 22. These discussions about social security lead automatically to the very purpose of all of the social, economic and cultural rights in the Declaration: the implementation of everyone's right to the free and full development of his or her personality, which is stated in Articles 22, 26, and 29. In section 3, I point out the Latin origin of this fun­ damental right and link it to the rights to education (Article 26) and to participation in culture (Article 27). In section 4 I discuss the twin birth of Articles 22 and 28. These articles are part of the set of special international rights (see 2 .5), which have their origin in the discus­ sions of the right to work (see Chapter 5) and were discussed by the drafters in terms of the significance of the entire range of social, economic, and cultural rights in the Declaration. A distinction is often drawn between the "old" eighteenth-century civil and political rights and the "new" nineteenth-century social, economic, and cultural ones, but for the great majority of the drafters all the human rights in the Declara­ tion are cut of the same moral cloth. In their kingdom of human rights there are no second-class citizens. The issues raised in these adoption debates about Articles 22 and 28 lead us

1 9Z

Chapter 6

finally to raise the question as to the order and arrangement of all the articles in the Declaration. In section 5 I explore the organic unity of the Declaration. The drafters cautioned us against reading too much into the placement of a certain article in the list of rights. These articles and their placement grew organically over a two-year draft­ ing period and-other than its spe cial relationship with a certain loose set or topic ­ each one of them should be interpreted in light of all the rest. 6.1 Food, Clothing, Housing, and Medical Care

If there are any human rights at all, it would seem that the rights to food, clothing, shelter, and medical attention would have to be among them. Henry Shue has called such rights "basic rights" because, as he puts it, "the e�oyment of them is essential to the e�oyment of all other r igh ts . " 1 It is hard to see how, for example, anyone can eJtioy the r ight to free speech if he or she is homeless, has not eaten for days, is look­ ing in a garbage can for a winter coat, and has not received treatment for advancing diabetes, all for reasons beyond his or her own control. It is therefore important to highlight these basic rights, to explain how they entered the Declaration and why they stayed in. Because of their fundamentality, they are "everyone's minimum reasonable demands upon the rest of humanity" (p. 19). Three of these rights came to the Dec­ laration from the Latin American socialist traditi on , again with Humphrey serving as the link. The fourth right (to clothing) was first added by the Philippine delegation. These four fundamental rights (to food, clothing, housing, and medical care) were al­ most lost due to the Commission's desire for brevity.2 But at the insistence of the USSR delegation the rights to hous ing and medical care were saved and at similar insistence of the Chinese delegation those to food and clothing were saved as well. In th� Humphrey lineup the right to medical care was in a separate article from the rights to food and housing. Article 16 of the proposal submitted by the delega­ tion from Chile stated that "the state must promote measures of publi c health and safety." Humphrey changed "must" to "shall" and deleted "measures of," leaving the second sentence of H35 with the claim that "The state shall promote public health and safety " (AC.lj3). This looks very much like a public policy statement. It is there­ fore sign i fi cant that Humphrey added the following as a first sentence: "Everyone has the right to medical care." In this way the state policy of the second sentence is seen to flow from the right enunciated in the first sentence and not the reverse . . This more precise terminology fits the Latin American socialist tradition within which Hump h rey was working (see 4.1). Countries whose constitutions either stated an e xpl ic i t right to health care or had such a right imbedded in clauses about the duties of the government included Bolivia, Brazil, the BSSR, Chile, China, Cuba, Hon­ duras, Panama, Paraguay, Peru, the USSR, Uruguay, and Yugoslavia.3 North Atlantic countr ies are noticeably absent from this list. I ascribe the initial reluctance of these delegations to give the "new rights" full status as in part due to the gaps in their own constitutions. (I hasten to exclude the former colonies from this charge. While the British d el e gate argued that "this entire section which established economic and social rights, should be refer re d to sp eci al ized age ncies for their consideration and comment (SR.l4jp. 8), the Indian delegation submitted a proposal stating that "every human b eing has the right to heal th" [CN.4jlljp. 1.])

Social Security, Education, and Culture

193

Regarding the rights to food and housing Humphrey had before him a clear statement drafted by the American Law Institute and submitted by the delegati on of Panama: "Everyone has the right to adequate food and housing . " 4 Humphrey bor­ rowed this and added to it a second phrase that he gleaned from the Cuban proposal (W.8jp. 19). This gave him H42: "Everyone has the right to good food and housing and to live in surroundings that are pleasant and healthy " (AC.l/3) . Since H35 had also spoken of the right to "medical care," there was an overlap between it and this H42. Unlike in the case of H35, in H42 Humphrey did not include a reference to the correlative duties of states. While neither of the two rights (to food and housing) were included in the consti­ tutions of the North Atlantic countries, ten Latin American countries and Yugoslavia did give their citiz ens a constitution al right to cheap and sani tary housing. Among the different phrases used to state this right were: " hygienic living conditions" and "low­ cos t dwellings" (Cuba), "cheap houses" (Bolivia and Costa Rica), "sanitary dwellings" ( Chile), "cheap housing" (Guatemala), "inexpensive and hygien ic houses" (Mexico), "hygienic and economical housing" (Nicaragua) , "conditions of safety and hygienic buildings" (Paraguay), and "hygienic and economical dwellings" (Uruguay).5 These constitutional citations form the background for the right to housing that we found in the Panamanianj inte r-American text from which Humphrey had borrowed. But the right to food was a novel addition. In the Panamanian submission of the Inter-American text each article was accom­ panied by a rationale as to why it should be included in the Declaration. The comment on Article 14, which became H42, made it clear that "food ha[d] not been dealt with in constitutional instruments hitherto" (E/HR/3/p. 12). However, recently the United Nations had held a Conference on Food and Nutrition and forty-four nations had pledged to raise the levels of nutrition for their populations. In light of this commit­ ment, pe rhaps, the Panamani an delegation felt that it was time to co dify th is right. Just like the right to housing, this could be - but need not be - looked at as a step toward health care, which had already been accepted as a basic right in the Latin American tradition. The Law Institute and the Panamanian delegation did not put the onus for the implementation of the rights to food and housing totally on the state or the govern­ ment. Their proposal noted that "this article insures the individual the 'opportunity to obtain' food and housing. The State is not required to provi de food or housing un­ less the individual cannot under existing conditions obtain them by his own efforts" (p. 12). Critics of the social and economic rights in the Declaration need to be aware of the fact that the introduction of the right to food and housing was accompanied by the view that "it may be sufficient for the state to protect its residents against dis­ eased or unwholesome food and to insure a continuous flow of food at prices within his reach." And that "with respect to housi ng , it may be su fficient for the state by the exercise of its regulatory power to insure that adequate housing shall be available at prices within the reach of all of its residents" (p. 12) . Also, the Panamanian proposal recognized that the phrase " adequate food and housing" had to be interpreted in the context of different cultures and climates and that even then an individual only had a right to "what is reasonable under the circum­ stances" (p. 13) . Comments like these suggest that we can, if we so desire, interpret

I 94

Chapter 6

these rights as part of the modern welfare state, but only if we take them in a minimal­ ist fashion which makes the actual implementation of the rights very much dependent on individual initiative and on the "resources of each State." That does not at all mean that these rights are less real. It simply means that adequate housing in Norway is very different from that in tropical climates and that adequate food is dependent on what grows where. We see here the need to draw the same line as was drawn in the question on whether the Declaration should state the trade union right to strike. It is one thing to state the rights to food, clothing, housing, and medical care on an abstract moral level and quite a different matter to implement those rights on the local or domes­ tic level. There were no objections to Humphrey's having borrowed the Panamanian "right to adequate food and housing." The other drafters accepted the rationale from which I have quoted. Noting the overlap between H35 and H42 Cassin collapsed them into one article and added a second sentence: "Everyone has a right to the best health conditions possible and to assistance to preserve them. The community shall promote public hy­ giene and the betterment of housing and food conditio ns" (W.2/Rev.2). Cassin put some water in the wine of rights, for instead of every Individual having the right to medical care, he or she has the r ight to the much vaguer "best health conditions," and the community must "promote" certain public policies. This move away from rights talk fits with Cassin's initial reluctance to accept the new rights as full-fledged ones. As late as the Working Group of the Second Session he "emphasized . . . that the obli­ gations of Governments could not be the same with regard to all rights, for instance with regard to the right to life and the right to a nationality, or the right to belong to trade unions, and the right to health and hygienic housing conditions" (SR.ljp. 4). Apparently, he felt that there was an important distinction to be made here and either consciously or unconsciously incorporated these views into his rewrites. Just before Cassin's rewrite was about to be read into the record of the First Drafting Session, Eleanor Roosevelt, the chairman, "stated that the United States sup­ ported the substance of Cassin's Article on health care, but preferred the wording which it [the U.S.] had submitted . . . [and which] was an adaptation of the Constitu­ tion of the World Health Organization" (SR.14jp. 8). With some minor changes this U.S. proposal was adopted by the Drafting Committee with the result that the Sec­ ond Session of the Commission started with this version of the righ t to health care: "Everyone, without distinction of economic and social condition, has the right to the h ighest attainable standard of health. The responsibility of the State and community for the health and safety of its people can be fulfilled only by provision of adequate health and social measures" (p. 8). Humphrey's rights to "adequate food and housing" had been dropped entirely and his "right to medical care" had been changed into the right to "the highest attainable standard," which is not quite the same thing as having an outright right to health care. The pendulum swung back to basic rights talk in the Working Group of the Sec­ ond Session of the Commission. Alexandre Bogomolov, the delegate from the USSR, objec ted to the vague wording of the article and proposed that "the right of the indi­ vidual to a proper protection of his health should be expressly formulated . .. [and made] cheap and accessible." Chairman Roosevelt responded that "no more detailed wording was practicable as different provisions for the protection of health were estab-

Social Security, Education, and Culture

195

lished in different countries" (AC.2jSR.8jp. 9). Going back to his earlier linkage of food, housing, and health, Cassin agreed with Bogomolov and proposed: "Everyone has the right to protection of his health, by means of good housing, adequate food and medical care" (p. 9). This left out the WHO's discrimination prohibition, leading Bogomolov to point out that the right to health care was especially about "adequate medical assistance to the poorer classes" (p. 10). Evdokia Uralova, who represented the Commission on the Status of Women, also felt it was "the duty of the State to pro­ vide medical care to the poorer classes, especially workers," with which August Van Istendael of the International Federation of Christian Trade Unions agreed (p. 10). Carlos Romulo of the Philippines merged all these suggestions into one single sentence: "Everyone without distinction as to economic or social conditions has the right to preservation of his health by means of adequate food, clothing, housing and medical care." Here we have the first reference to a right to clothing, which so far had not been part the text. There was a precedent for it in the Cuban submission, which listed a person's "right to hygienic living conditions and to clothing suitable for the climate in which he lives" (W.Sfp. 19). The Working Group adopted this Philippine proposal by 4 votes to 0 with 2 abstentions (p. 11). While three of these rights (to food, clothing, and housing) were seen as means to the end of health care, this text did represent a return to the basic rights talk Humphrey had used. In the full Second Session Charles Dukeston, the U.K. representative, proposed to replace the words "by means of adequate food, clothing, housing and medical care" with the words "through the highest standard of food, clothing, housing and medical care which the resources of the State or community can provide" (SR.40jp. 16). Duke­ stan made his proposal because he thought "it a mistake to proclaim rights without mentioning the duties of the beneficiaries," a strict connection he had not insisted on in the case of the civil and political rights that had already been adopted. He felt that the Working Group terminology, which lacked the proviso about resources, might "lead to [a] misunderstanding of the part played by the State" in the implementation of these new rights. The U.K. amendment passed with a vote of 8 to 2, with 5 absten­ tions, leading to the following text of what was then Article 33: " Everyone without distinction as to economic and social conditions, has the right to the preservation of his health through the highest standard of food, clothing, housing and medical care which the resources of the State or community can provide. The responsibility of the State and community for the health and safety of its people can only be fulfilled by provision of adequate health and social services" (p. 16). This text places the rights to "food, clothing, housing and medical care" back in the realm of public policy, for the initial "right to the preservation of his health" is limited by the resources of the state or community. This restriction makes these rights relative to what it is the country or community in which ones lives happens to be able to provide. Nothing is said about the need for international cooperation. If the highest standard attainable at a certain time and place is not enough to feed the popu­ lation, then presumably those starving have no human right to food, even if there is abundance elsewhere. Because the Third Session of the Commission was very eager to keep things short and to the point, it decided to merge the article on health care rights which we have been discussing (the Second Session's Article 33) with another even longer article

196

Chapter 6

(then 34) on the rights to social security and the protection of motherhood and chil­ dren. This merger became our Article 25. The shortest and therefore most popular of these merger proposals was the U.K.-India one. It simply stated: "everyone has the right to a standard of living adequate for health and well-being, including security in the event of unemployment, disability, old-age or other lack of livelihood in cir­ cumstances beyond his control" (E/CN.4f99). Gone were the explicit rights to food, clothing, and housing. Roosevelt said that her delegation "favored" this text, but sug­ gested that the right to "necessary social services" be added to the list of entitlements. She made the suggestion, she said, "in order to make it clear that the term 'social secu­ rity' encompassed the right to services as well as to economic protection" (SR.66fp. 13). She was supported in this by the delegations of Australia and Lebanon, the latter of which joined Metha, the Indian delegate, in calling for a reinstatement of the para­ graph on motherhood and children (p. 14). Alexei Pavlov, the USSR delegate, was quick to point out that the short U.K.-India text "omitted all reference" to "the right of a man to medical care and housing," both of which he argued were much better handled in the USSR than in the United States. This prompted Roosevelt to suggest that there be "an exchange of medical missions" between the two countries (p. 14). A drafting subcommittee, appointed from the dele­ gates of France, India, and the United Kingdom, did not choose to include explicit statements about the rights to health care, housing, food, and clothing, though it did incorporate Roosevelt's suggestion that the list include the right to "social services." Pavlov again felt compelled to note that "all reference to housing and medical as­ sistance had been deleted" (SR.70jp. 8). Chairman Roosevelt responded that these kinds of rights were covered by the rights to "social security" and "a standard of living" (p. 11). Geoffrey Wilson, her U.K. counterpart, suggested that "those services were in­ cluded in the broad terms used in the new text" (p. 8). The issue came to a head in the seventy-first meeting of the Third Session. At that point the Commission took up the following ILO proposal: "Everyone has the right to a standard of living, and to social services adequate for the health and well-being of himself and his family (and to social security) including protection in the event of un­ employment, sickness, disability, old age or other lack of livelihood in circumstances beyond his control" (SR.71jp. 2). The chairman pointed out that a separate vote had to be taken on the parenthetical phrase. She also relayed the fact that the USSR dele­ gation had requested that the phrase "social insurance, housing and medical care" be included in the ILO text (p. 2). This Communist request for the inclusion of rights to "housing and medical care" failed to restore the rights to food and clothing which also had been deleted. For this reason the Chinese delegation proposed that all four of the deleted rights be restored. Rudolf Metall, the ILO representative, "supported the Chinese representative's suggestion that the words 'including housing and medi­ cal care, food and clothing' should be inserted after the words social services" (p. 9). Initially Roosevelt also thought that the phrase "food, clothing, housing and medical care" should be included in the article (p. 3). But after Wilson argued that the USSR amendment did not really add anything necessary to the ILO proposal on the table, she took a step back. Wilson said that "medical care was covered twice; once by the words 'standard of living' and again by 'health and well-being.' Housing­ as well as food and clothing-was covered by 'well-being of himself and his family' "

Social Security, Education, and Culture

197

(p. 6). The chairman then cut her concession in half, saying "she would support the inclusion of 'housing and medical care' for the sake of unanimity" (p. 6), but not-by implication- the rights to food and clothing. Alexei Pavlov gave a vigorous and well-aimed defense of his proposals, which in­ cluded explicit statements of the rights to health care and housing, but, as I said, not to food and clothing. As he had done in the previous meeting, he engaged in a com­ parative analysis of housing and health care policies in his own country and in the United States. He felt that a worker's "right to housing should be stated in concrete terms. There was no equality of housing in many countries" (SR.71jp. 8). Roosevelt had objected to the USSR proposal because "every country had its own conception of what constituted housing worthy of the dignity of the human being" (p. 8). The phrase and the right would therefore be very difficult to implement. Pavlov agreed that "it was impossible to use the same form of words for everyone," but he referred his col­ leagues to "a memorandum from the President of the United States to Congress, which dealt with the question of millions of young people forced to live in slums" (p. 8). He thought that the concept of human dignity was "sufficiently clear" to address and con­ demn those extreme kinds of conditions. "Human beings" he said, "should not live like animals; they should not be forced to live in shacks, hovels or caves. They should be provided with adequate housing which would not endanger their health or that of their families" (p. 8). The USSR amendment calling for a separate paragraph on the right to housing was rejected by 6 votes to 4, with 3 abstentions. Roberto Fontaina, the representative from Uruguay, said he felt that the rejected paragraph "was simply an injunction to States to supply free housing" (SR.71jp. 12). Pavlov immediately "replied that the context and especially the last paragraph of his amendment clearly showed that it had no such meaning" and that "the possibilities var[ied) from country to country" (p. 12). That last paragraph stated that "the state and society shall take all necessary steps including legislation, to ensure that every person has a real opportunity of enjo.Ying all these rights" (131). The USSR call for a separate paragraph on the right to medical care was rejected with a vote of 7 to 4, with 2 abstentions. Mter the separate USSR-sponsored paragraphs had been rejected, the Commis­ sion was ready to vote on the first paragraph of the ILO proposal. Having proposed the (re)insertion of the health care list, P. C. Chang, the Chinese delegate, twice felt called upon to defend the rights to food and clothing. At one point, Wilson of the U.K. had said that he did not think "there was any need for the words 'food and clothing' proposed in the Chinese amendment" (SR.7l/p. 11). And when the time to vote came, he declared himself "in favor of a separate vote as to whether special reference should be made to 'food and clothing' " (p. 13). Chang responded that he "did not see what possible objection there could be to that phrase when millions of people throughout the world were deprived of food and clothing" (p. 13). These two items are staples in the Confucian diet of benevolence which good kings set before their people. If it had not been for Chang's intervention in this seventy-first meeting of the Commission, these rights probably would have been lost to the Declaration. Just before the vote, Fontaina of Uruguay said that "he did not think that the words 'food and clothing' were needed, since the phrase 'standard of living for health and well-being' was sufficiently clear" (SR.7lfp. 14). Chang "did not agree that the

198

Chapter 6

term 'standard of living' was sufficiently precise. The question involved concerned not only the quantity but also the quality of food. [He] . . . did not understand the wish to avoid the two principal factors of an adequate standard of living" (p. 14). After this exchange it was decided by 11 votes to 3 to include the words "food and clothing." The whole of the Chinese amendment- "food and clothing, housing and medical care" ­ was adopted by 12 votes to none, with 2 abstentions (p. 14). This is the end of the Third Session of the Commission and we now have before us the whole list of rights (to food, clothing, housing, medical care, and social services) which the first sentence of Article 25 says is included in everyone's right to "a stan­ dard of living adequate for the health and well-being of himself and of his family." 6 In the next section I will explain how the health care list we have been discussing came to be imbedded in that broader right. One of the negative effects of merging the right to medical care into the article on social security is that (strictly speaking) a person's rights to food, clothing, housing, medical care, and social services are now all made dependent on his or her being a member of a household or a family with a breadwinner, who was either employed or, as the article says, unemployed "for reasons beyond his control." This merger in effect killed the independent existence of the right to health care and the other rights (to food, clothing, and housing) that are means to help one get and maintain good health. As Pavlov pointed out to the Third Committee, "medical assistance was not merely an item in an adequate standard of living, but a specific right" (p. 571) . In its desire for brevity, the Third Session merged these rights into the rights workers have to social security for themselves and for their families. At the level of the Third Committee, four amendments were submitted that ac­ knowledged that the merger of the health care list int� the social security article was a mistake. The New Zealand delegation submitted a version of the article that had as its only subject the word "everyone" and that gave to that subject a long list of rights that consisted of a merger of the two lists we now have in the first paragraph of Article 25. A. M. Newlands of New Zealand defended dropping the reference to the family because she objected to the idea that "the family itself . . . enjoyed that right [to social services] only through the head of the family" (p. 559). This omission of the family was why some delegates did not like the simple New Zealand version. Watt, her colleague from Australia, said that "although the New Zealand amendment was attractively simple and clear . . . it omitted the vital reference to a standard of living adequate for the individual and his family" (p. 565). The Cuban delegation seemed to tackle both problems at once. By proposing to split the first paragraph of Article 25 into two, it in effect gave the right to medical care a status close to what it h ad pre­ viously enjoyed. The first paragraph of the Cuban amendment stated every person's "right to health and well-being" and the second one every person's right to "social s ecu r ity " (AfC.3/232). Each of these paragraphs contained its own appropriate list, but neither of them contained the phrase "adequate . . . for himself and his family," thus also solving the "family objection" Newlands had raised. Neither of these amendments was voted upon, for they were both withdrawn at the end of the discussion and just before the voting started. Newlands did not explain her withdrawal, but Perez Cisneros, the Cuban delegate, did. He announced that "if the text submitted by the French delegation were adopted" the Cuban delegation

Social Security, Education, and Culture

199

would withdraw its amendment. The French text Perez Cisneros had in mind did con­ tain the phrase "for the well-being of himself and his family" which many delegations wanted to see included (p. 561) . This suggests that by this time the merger of health into social security was completed and other considerations- such as union repre­ sentation-weighed more heavily. Another consideration was the fact that the second Cuban paragraph combined the phrase "the right to social security" with its natural list. The Third Committee did not like this because by that time the phrase "social security" already occurred in what is now Article 22. In other words, the Cuban pro­ posal threatened to confuse the meaning of the phrase "social security" by allowing it to occur twice in the Declaration, each time with a different meaning. This problem overshadowed the other merits of the Cuban proposal. The Soviet Union once again put forward its own version of the social security article (E/800). The first paragraph of that proposal called for the insertion of the right to "social insurance at the expense of the State" and for that reason was voted down, as I will explain in the next section. The other two paragraphs of the Soviet pro­ posal were very straightforward: "2. Everyone has the right to medical care and to as­ sistance in case of illness. 3. Everyone has the right to decent housing." Both of these amendments were overwhelmingly rejected. Immediately after the rejection of the housing right, the Ecuadoran amendmentto insert the word "decent" before the word "housing" in the article was also rejected by 21 votes to 11, with 7 abstentions (p. 574). I believe that in spite of these rejections we may still conclude that these crucial rights have an independent status. We saw that the rights to food, clothing, housing, and medical care used to be in an article all by themselves and we may carry that information over into the meaning of Article 25. We can admit that workers or em­ ployees are the primary reference group for the word "everyone," but that admission does not negate the fact that everyone else also has these rights. On the contrary, the independent history of these rights shows that the drafters first believed that every­ one has them and that after that they (inadvertently) drew special attention to them in the case of workers or employees. In the next section we will discover that this same independence holds for the rights on the social security list. Those rights, too, are possessed by everyone and not just by workers and the members of their families. 6.2 Troubles with the Phrase "Social Security"

We have just seen that rights to food, clothing, housing, medical care, and social services were merged into another article that until then had only dealt with mat­ ters of social security. According to Humphrey's Article 41, "Everyone has the right to social security. The State shall maintain effective arrangements for the prevention of unemployment and for insurance against the risks of unemployment, accident, disability, sickness, old age, and other involuntary or undeserved loss of livelihood" (AC.l/3). This list is very close to that in Article 25's first paragraph, which suggests that not much drafting energy went into discussing the items on this list. This is true. The drafters had a great deal of trouble with and spent far more time on the label they were to use to introduce the list of items than on the individual items them­ selves. As to the label, the drafters could choose from among the following: "security,"

ZOO

Chapter 6

"social security," "social insurance," "protection," "social protection," or "a standard of living." Humphrey himself used both the phrase "social security" and the word "insur­ ance." While these phrases may seem interchangeable to us, in the debates about the Declaration some of them received a fixed meaning and all of them were discussed in terms ofwhat role they made the state play in people's enjoyments of these rights. Dif­ ferent delegations believed in more or less government involvement in social security matters and that influenced their language preference. The USSR delegation wanted the most state involvement. It asked its colleagues to adopt the language from its own constitution, which in its Article 20 stated that "citizens of the Union of Soviet Socialist Republics have the right to maintenance in old age and also in case of sickness or loss of capacity to work. This right is ensured by the extensive development of social insurance of workers and employees at state ex­ pense, free medical service for the working people and the provision of a wide network of resorts for the use of the working people" (AC.l/3/Add.ljp. 347). Because in this Soviet position "insurance" was linked to "at state expense," the word "insurance" be­ came anathema to a large number of other delegates, especially the delegations of the United Kingdom and the United States. The delegations from Latin America would have been comfortable with either "social insurance" or "social security," but since . the Communist proposals preempted the use of the term "insurance" they ended up insisting that the Declaration include at least the phrase "social security." 7 This Latin American group was usually joined by a few North Atlantic delegations and some of the former colonies, like India. In the end - so as to avoid the more objectionable "social insurance" -even the most reluctant North Atlantic delegations (the U.K. for technical reasons and the U.S. for ideological ones) came to accept the concept of social security and the rights that it brings. On the question of the right to social security the reader of the Declaration is faced with an anomaly. In the first sentence of Article 22 we are told that "everyone, as a member of society, has the right to social security" and most readers will associate that announcement with a list of social security benefits that have become standard in Western liberal and socialist democracies. But the Declaration does not supply that list until Article 25, which states that "everyone . . . has the right to [social] security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control." The anomaly is that the phrase "social security" and the standard list are split, for the adjective "social" was left out of Article 25. This split text was caused by a clerical mistake, went unnoticed for a while and caused a great deal of trouble when discovered. I tell this story in three install­ ments, before the split, during the split and after the split of the text. Borrowing part from the Panamanian proposal and part from the Cuban one, Humphrey submitted this text: "Everyone has the right to social security. The state shall maintain effective arrangements for the prevention of unemployment and for in­ surance against the risks of unemployment, accident, disability, sickness, old age and other involuntary or undeserved loss of livelihood." 8 Humphrey qualified the "loss of livelihood" with the insertion of his own observation that such loss had to be "in­ voluntary or undeserved." This stipulation later became the phrase "in circumstances beyond his control." Humphrey seems to have thought of a state-maintained system, for he did not take over from the Panamanian proposal the phrase "or insure that

Social Security, Education, and Culture

Z01

there are maintained," which allows for state supervision of private insurance schemes. Humphrey also ignored a third paragraph of the Cuban article in which every person is said "to have the duty to co-operate with the state . . . in the promot[ion of] his own social security" (2/Art.l6). While he did not restore the Panamanian phrase "or insure that there are main­ tained," Cassin did make three other changes that had the same effect. Making use of the Cuban paragraph ignored by Humphrey he inserted into the article the clause "with the participation of [the] beneficiaries" (W.l/Rev.l/Art.40). He qualified the state's role as being one it would perform "to the utmost of its possibilities" (W.2/ Rev.2/Art.34). And he added the sentence "Mothers and children have the right to special regard, care and resources," which became Article 25's second paragraph (see 7.2).9 In the Working Group of the Second Session of the Commission Adamo, the delegate from Panama, introduced the phrase that both Humphrey and Cassin had decided not to borrow. He proposed that "the State [have] the duty to maintain, or to ensure that there are maintained comprehensive arrangements for the promotion of health, for the prevention of sickness and accident, and for the loss of livelihood" (SR.8fp. 11). The accompanying rationale to the Panamanian submission explained that "the wording of the Article leaves full scope to private initiative, in countries where this is considered desirable . . . . The Article allows diversity of types of organi­ zation and of standards of protection provided the essential right stated in the Article is reasonably secured" (E/HR.3/p. 14). The Philippine delegation turned this Panamanian suggestion into a formal amendment, with the result that the Working Group (by 3 votes to 0, with 3 absten­ tions) adopted this social security text: "Everyone has the right to social security. The State has a duty to maintain or ensure the maintenance of comprehensive measures for the security of the individual against consequences of unemployment, disability, old age, and all other loss of livelihood for reasons beyond his control" (SR.8/p. 13). The Second Session of the Commission and the Second Session of the Drafting Com­ mittee both adopted this same text and passed it on to the Third Session. There it was merged with the article on health care that was the subject of the preceding section. In that merger the reference to the duty of states was deleted partly for reasons of brevity and partly because the drafters viewed any reference to the duties of state as an indirect measure of implementation, which they had a standard policy of avoiding. The Third Session of the Commission set up a small subcommittee, composed of the delegates of France, India, and the U.K. This committee proposed a two-paragraph article, the first one of which read as follows: "Everyone has the right to social secu­ rity. This includes the right to a standard of living and social services adequate for the health and well-being of himself and his family and to security in the event of (against the consequences of) unemployment, sickness, disability, old age, or other lack of livelihood in circumstances beyond his control" (127). (The second paragraph was about mothers and children.) The first paragraph contains the word "security" twice, which fact prompted Pavlov of the USSR to ask for a "clarification of the word "secu­ rity" (SR.70jp. 8). Wilson of the United Kingdom explained that the term " 'security' meant 'security against unemployment, sickness, disability, old age,' and so on" (p. 9). He added that he did not want to use the word "social security" in the context of un-

ZOZ

Chapter 6

employment because "in the United Kingdom, for example, the meaning of that term went far beyond that of the word 'security.' " Apparently, Wilson had convinced the other members of the small subcommittee not to use the phrase "social security" as an introduction to the list of items. While it fit the other items on the list, it did not fit with how the British system administered unemployment benefits. Wilson believed that the word "social" when combined with "security" meant that workers did not need to contribute to their own unemployment insurance, which in the U.K. they did have to do. In any case, the objection was clearly a technical one because the phrase "social security" itself was one of the anchors of the new Labour government that had defeated Churchill in the 1945 general elections. Metall, the representative from the International Labor Organization, also took note of the fact that the Commission was using the phrase "social security" in a new way. It bothered him that the "right to social security" in the first sentence was not at­ tached to any kind of social security list. By not having the traditional list attached to the phrase, the subcommittee had given the phrase "a new definition," with roughly the "same meaning as the right to a standard of living and adequate social services, etc." (70/9). He therefore proposed a text that moved the phrase "social security" from the beginning to the middle of the paragraph: "Everyone has the right to a standard of living, and to social services [adequate] for the health and well-being of himself and his family, [and to social security] including protection in the event of un­ employment, sickness, invalidity, old age, and the loss of livelihood in circumstances beyond his control." 10 We can trace the structure of the final product back to this ILO version. Metall explained that the ILO proposal had placed the words "social secu­ rity" in the middle of the paragraph because there "they covered what was simply a fact in the legislation of most countries. The Declaration was not defining social secu­ rity, it was merely saying what should be provided under social security" (SR.70jp. 11). Wilson still objected to the use of the phrase, and a subcommittee was appointed that took out the word "adequate" and put the phrase "and to social security" in parenthe­ ses, asking for a separate vote on it. In the meantime the USSR had submitted an amendment to this ILO text which asked that the phrase "social insurance, housing and medical care" be included. In the amendment the USSR delegation had stated that the things covered by this insur­ ance were to be paid for "at the expense of the State or of employers" (p. 11). Pavlov observed that "the concept of social insurance which his delegation defended was fun­ damentally different from that upheld by others . . . [A] system of social insurance based only on contributions deducted from the employee's wages did not constitute real social insurance but merely a system of compulsory savings imposed on the em­ ployee" (p. 5). The idea of making the state responsible for the entire welfare bill scared off the other delegates and made them form a m�ority consensus around the concept of "social security." For instance, Roosevelt said she would prefer the term "social insur­ ance" not to be used (p. 2). When Metall of the ILO mentioned that he really preferred the phrase "social insurance," she objected on the grounds that "the term 'social in­ surance' inevitably implied payments made in advance. That conception excluded," she said, "the possibility of social security in its wider sense, comprising donations or contributions from other sources made at the actual moment of need" (p. 9). The use .

Social Security, Education, and Culture

ZD3

of the words "donations or contributions" makes us think of charity and that may well have been on her mind, but it is hardly the language of rights talk. Scared off by the phrase "social insurance," Roosevelt made no explicit objections to the phrase "social security," which the French, Australian, and Indian delegates insisted should be re­ tained,ll Seeing the depth of the opposition, Wilson finally gave in and proposed "as a compromise . . . to replace the words 'including protection' " in the ILO text by "and to social security" (SR.71jp. 11). It is crucial to note here that Wilson proposed a re­ placement of the one phrase by the other one, and that he agreed that the text would say that everyone has a right to "social security in the event of unemployment, sick­ ness, etc." (We will see below that inadvertently the word "social" was left out of the recorded text.) Metall, the ILO representative, "agreed to the changes proposed by Mr. Wilson." After the Soviet amendment, which included the social insurance at state expense clause, was voted down, the "chairman . . . put to the vote the United King­ dom amendment,'' which "was adopted by 12 votes to 2, with 5 abstentions" (p. 14). The amended ILO proposal itself was adopted with 8 votes to none and 6 abstentions. This meant that the phrase "social security" was once again attached to the list that in the eyes of most delegations gave the phrase its proper meaning. That is how it was supposed to be, but the result of this vote was never properly recorded and some of the delegates apparently had been unaware of precisely what text they had voted on. Right after the vote on the final ILO text, the French dele­ gate, Cassin, explained that he had "abstained from voting on paragraph 1 [of the ILO text] because it contained no reference to social security. [He] declared that world public opinion would fail to understand why such an omission had been allowed to occur, and reserved the right to raise the whole question again when the 'umbrella' clause came under discussion," which he did (SR.71jp. 15) . A.J. D. Hood of Australia, "shared Mr. Cassin's attitude." No one corrected these mistaken perceptions of what had been done. The only explanation I have for these misunderstandings is that there was a lapse of time between when the British proposal was made and accepted by the ILO and when the actual votes were taken. During this lapse other votes were taken that led to adoption of the additional clause on the rights to food, lodging, medical care (p. 14). These misunderstandings governed all further discussions and led to at­ tempts to solve a "problem" that did not really exist. The first step in the (unnecessary) "rectification" process came in the very next ­ meeting. When what is now Article 22 came up for adoption, Cassin raised the social security problem, as he had said he would do. Being under the (erroneous) impres­ sion that the phrase "social security" was not part of Article 25, he said he "felt that it would be a grave error to omit from the Declaration the modern and widely ac­ cepted concept of social security." Consummate debater that he was, he adapted his argument to the new situation by pointing out that the covering Article 22 -because it was general in character-was a better home for the phrase, because it would leave "the precise interpretation of the concept up to the individual States" (SR.72jp. 4). He argued that "the term 'social security,' which had originated in English-speaking countries had to be included in the text. It represented a stage in human develop­ ment; its inclusion would strengthen the document" (p. 7). Tying the phrase "social security" to the need for cooperation of states, he argued that "it was far better to in-

Z04

Chapter 6

elude a reference to social secur ity in the covering artic le [22] because the welfare of workers had long since ceased to be a purely nation al concern" (p. 9). Roberto Fontaina of Uruguay agreed and confessed that he "had voted in favor of a cover ing article in the hope that it would contain a reference to social security, which had been left out [of the ar ticle on] social security . . . [and which] concept was . . . of paramount importance and had been recognized as such in the Bogota Declaration" (p. 8). Upon the suggestion of the Yugoslavian representative, the chair­ man propos ed that Article 22 begin with the words "Every person has the right to social se c urity " (p. 9). This idea was inserted into the French proposal for the article, resulting in the followi ng first sentence: "Everyone, as a member of society, has the right to social security and is entitled to the realization of the economic, social and cultural rights enumerated below" (p. 10). This adop tion created a split in the text of the D eclarati on between the phra se "social security" in Article 22 and its natural habi­ tat of meaning in Article 25. At the level of the Third Committee the delegates had two chances to correct this split text problem, first when Article 22 came up for discussion an d then again with Article 25. The New Zealand delegation was the first one to bring the p robl em for­ mally before the Committee, when it submitted an amendment to delete the phrase "has the right to social security" from Article 22 (AjC.3jp. 267). As soon as it had been made, the Peruvian, Chilean, and French delegates all claimed that " the New Zealand amendment .. . . was based on an erroneous interpretation." This led Newlands to with­ draw her amendment (p. 497). As she did so, she explained tha t her delegation had though t the phrase should be moved to Article 25 " be cause there those words would have an exact meaning. Her del e gation had withdrawn its amendment . . . because . . . it did not wish to see [the words] deleted from article 22 without being sure they would be [re]inserted in ar tic l e 25. Mrs. Newlands recalled that the Commission had included the idea of social security i n the tex t of articl e 22 only because [it thought] it h ad been left out of the o rig ina l draft of article 25" (p. 505). Alan Watt, h er Australian colleague, gave a similar description of what he called the Committee's "dilemma" (p. 508). So did Cassin though he d id not favor an out­ right deletion (p. 499). Dilemma or not, the Committee did have to find a m eaning for the detached phrase "social se curity, " as it occur red in Article 22. I n the remainder of this section I des crib e the four positions that were taken in this search for meaning.

The Syrian Social Justice Proposal The Syrian delegate, Abdul Kayaly, "proposed that the phrase social security should

be re p l ace d by the phrase social justice, which would express a broader concept" (p. 504). Jamil Baroody, the de legate from Saudi Arabia, explained that the Syrian amendment "conformed to Islamic law" and that "Islamic institutions were not only the e quivalent of a [Western] social se c ur ity system, their machi nery was simpler, the ir administration less co stly and their effectiveness had stood the test of fourteen cen­ turies " (p. 515). He gave two examples . In Saudi Arabia, he said, "the institu tion of zaka, a voluntary tax levied for the purpose of assistin g the poor and u nemployed , was one of th e five pi l l ars of Islam. Social security was a recent deve lo pme nt in Western society, while zaka had been an article of faith in actual operation in Moslem com-

Social Security, Education, and Culture

ZOS

munities for almost fourteen centuries. Furthermore, in Saudi Arabia there was the institution of wagf, a system whereby the income from property placed in trust was frequently used for relief of the poor or the unemployed" (p. 515). These Muslim delegations argued that in their cultures people enjoyed the clus­ ter right to social security, but that its substance was not delivered in the manner of a Western social security system. People could enjoy the right to social security with­ out carrying the "stamp card" envisioned by the 1942 British Lord Beveridge Report. But F. Corbet, the delegate from the U.K., did not see it this way. Though she agreed that the phrase "social security" "seemed to give rise to confusion" and though in the U.K. had a rather "technical meaning" (having to do with a system of family allow­ ances), she did not think that "the words 'social security' should be replaced by the words 'social justice,' which, she said, derived from a more complex idea" (p. 504). There was, however, quite a bit of support for a social justice interpretation of the sec­ ond half of the Declaration. Henry Carton de Wiart, the Belgian delegate, proposed that both phrases "social justice" and "social security" be used in the first sentence of Article 22. He felt that the phrase "social security" "as currently used in English speaking countries . . . had a very special meaning" (p. 511). The addition of the phrase "social justice" would help dilute the "narrow meaning" the phrase "social security" would otherwise have and give it a broader application. Salomon Grum­ bach, the French delegate, also preferred the phrase "social justice" because "it was the most general term" and "there could be no social justice without social security, as there could be no social security without social insurance" (p. 509). Cassin had in­ dicated earlier that his delegation meant the phrase "social security" "in a broadly humanitarian rather than in a technical sense" (p. 499). Roosevelt, the U. S. delegate, concluded from all this that "it would perhaps have been preferable to use a term other than social security and a suggestion to that effect had been made" (501). We might have expected support for the Syrian proposal to have come from the Latin American camp, for if they had voted for the phrase "social justice" in Article 22, they could then later have fought for the reintroduction of the adjective "social" in Article 25, making that the social security article. That would have hooked up the right to social security once again with its own list of standard benefits. But this sup­ port did not materialize. Luis Alavarado, the Peruvian delegate, was torn on the issue. He favored the phrase "social justice." 12 And he was of the opinion that "there was a very distinct difference between social security in the broad sense of the term, and the technical measures such as social assistance, aid to mothers and children, etc . , which formed part o f the social program o f most countries. O n the other hand, the concept of social justice included, as a matter of fact, all those aspects of social secu­ rity mentioned" by other delegates (p. 506). But he could not support the Syrian amendment, he said, because he was sympathetic to the fear "some representatives had expressed . . . that the wording might be wrongly interpreted" (506). The Syrian amendment to replace the phrase "social security" with "social jus­ tice" was rejected by 26 votes to 8, with 8 abstentions (513). If there were to be two rights to social security, the drafters did not want to take the risk of the one in Article 22 being stronger than the one in Article 25.

206

Chapter 6

The Overlooked Lebanese Solution

The second attempt to solve the problem of the unattached phrase took the form of a Lebanese amendment to a Cuban amendment to the text that had come from the Third Session of the Commission. That text gave "everyone, as a member of society, the right to social security and . . . to the realization of the economic, social and cul­ tural rights set out below" (E/800). The Cuban amendment deleted the words "set out below" and replaced them with the phrase "essential for his dignity and the free de­ velopment of his personality" (AjC.3j232). Accepting the Cuban amendment, Karim Azkoul, the Lebanese delegate, pointed out that, as it then stood, the right to social security at the beginning of the article "had no meaning." He therefore proposed that the phrase "social security" be moved from the beginning to the end of the article, with the following result: "Everyone has the right to the realization of the economic, social and cultural rights essential for his social security, his dignity and the free de­ velopment of his personality" (p. 503). Azkoul's point was one about means and ends and levels of abstraction. He argued "that social security was dependent upon the implementation of economic, social and cultural rights and should [therefore] not be considered on the same level as those rights" (p. 503). It fit much better with the other two general rights to "dignity and the free development of his personality" that were being proposed for adoption by the Cuban amendment. There was a means-to-ends relationship between all the social, economic, and cultural rights listed after Article 22 and Article 22's more abstract rights to social security, dignity, and the free and full development of one's person­ ality. The unattached right to social security lived on the same level as these two Cuban rights, which is why Azkoul proposed to move the disputed phrase down to the end of the article. If this had been done the relationship between the three more abstract rights as ends and their realization in the social, economic, and cultural provisions of the Declaration would not have been misunderstood. At least one delegate saw the merits of the Lebanese proposal. Alexander Con­ toumas, the delegate from Greece, knew that the expression "social security" had "a definitely technical meaning" when accompanied by its proper list, and "a (limited) general meaning" when not so accompanied. "It was the latter which the Commission had wished to give it" in Article 22. He felt that the Lebanese delegation "had found a very happy way of solving the difficulty" (p. 506). He suggested that the difference between the two meanings of "social security" be made even clearer by the addition of the words "in general" to the phrase when it was put into the Cuban amendment. The Cuban delegation accepted the Lebanese move as a friendly one, but rejected the Greek addition of "in general." While the Third Committee adopted the Cuban pro­ posal itself, it rejected both the friendly and unfriendly amendments to it, the friendly Lebanese one by 18 votes to 17, with 4 abstentions (p. 513). The closeness of this vote shows that the Lebanese solution touched a deep core of comprehension within the Committee. No roll-call vote was taken, but all along two blocs of delegates had spoken up against there being a problem of meaning. This position had made them reject the New Zealand attempt to move the phrase "social security" out of Article 22 and it also explains why they did not see the need for either the Syrian "social justice" or the

Social Security, Education, and Culture

207

Lebanese solution we just looked at. This majority of one felt that the right to social security could perfectly well stand on its own, detached and at the head of the other social, economic, and cultural rights in the Declaration. Each bloc had a leader who defended that delegation's own amendment to the Third Session's text of Article 22. Though these were presented as amendments, the impact of each would be to defend the status quo handed down from the Third Session. Both blocs of votes expected the general reader of the Declaration to grasp the differences in meaning between the two articles without difficulty. The Latin American Position

Enrique Corominas of Argentina spoke for the Latin contingent. His delegation had submitted an amendment which in effect brought the list of Article 25 forward into Article 22: "Every person has the right to social security which will protect him from the consequences of unemployment, etc." (A/C.3/251). It was obvious that this would make one of the two occurrences of the unemployment list redundant, which is why the United Kingdom delegation asked the Argentine delegation to transpose its amendment to Article 25. "Mr. Corominas regretted that he was unable to" do that (p. 507). His delegation was of the opinion that the right to "social security was not in itself a new right; it was the culmination of an aspiration which had reached fulfillment in some national legis­ lations as the result of struggles throughout the past century" (p. 502). "The Argen­ tinean delegation therefore felt that the right to social security was a principle which should be clearly set forth independently of the other economic and social rights. The idea of social security was now universal." It had grown out of earlier experiences of "human solidarity" among peoples and "the way in which [that] social solidarity had been converted into social security constituted a triumph of the proletariat in the struggle against poverty" (p. 508). The Argentine amendment, bringing the entire list forward, was rejected by an overwhelmi ng vote of 19 to 2, with 19 abstentions (p. 512). It is not clear how much the speeches of Corominas (he gave several of them) in­ fluenced the other Latin American delegations, but he did capture their unreserved acceptance of a most general and independent right to social security. This bloc did not share the North Atlantic problem of meaning and was content to let the phrase and the right stand as it had been received from the Third Session. Belarmino Aus­ tregesilo de Athayde, a Brazilian delegate, "observed that social security, the funda­ mental idea in Article 22, was one of the aims the democracies had set themselves. Furthermore, he saw in that idea the contribution of the present generation to the social progress of mankind" (p. 511). Similar support came from the delegations of Ecuador (p. 503), Venezuela (p. 508), and Uruguay (p. 515). I nterestingly, all of these delegations linked their support for the retention of the phrase with comments about how the general use of "social security" differed in meaning from the phrase "social insurance," which by implication they would not support. It was the fear of this phrase that kept many delegations from tinkering with and and perhaps improvi ng the text.

Z08

Chapter 6

The Communist Position

The Soviet Union had proposed an amendment to Article 22 of which this was the biggest part: "In view of the importance of the economic, social and cultural rights enumerated in articles 21 to 26 of the Declaration and in particular of the right to social security, it is considered desirable that they be implemented by means of both national efforts and international cooperation, due regard being given to the social, economic and political organization and resources of each State" (A/C.3/29/Rev.l). This amendment had the merits of stressing the importance of the right to social security up front, while not bringing the whole list forward. Echoing the Argentinean thoughts, Pavlov argued that the economic and social "rights had not appeared in any of the previous declarations of the rights of man ; their inclusion was the result of the social progress achieved in the nineteenth and twentieth centuries" (p. 419). He "drew attention to the fact that the words 'social secur ity,' as used in his amendment, were broader in meaning than the concept of social insurance, which was covered in Article 25" (p. 498). Here lies the link to the worries about the phrase "social insurance." Pavlov might have been readying the battleground for the introduction of the "social insurance" phrase into Article 25. By keeping the phrase "social security" in Article 22, the draft­ ers could not very well also use that same phrase in Article 25. Th is would strengthen the case for "social insurance," should they want to fix Article 25 when the time came. The USSR amendment to Article 22 was rejected by a vote of 27 to 8, with 8 absten­ tions (p. 513). By keeping the phrase "social security" in Article 22, the Communists had nothing to lose. Like their South American colleagues, they saw no problem with a leading role for a strong and unattached right to social security. The meaning they attached to such a right was probably the same as the one expressed by the Lebanese solution, which placed it on the same level as the right to dignity and the development of one's personality. These worries were not unfounded, for when Article 25 came up for discussion the USSR delegation did repeat its attempt to imprint the label of "social insurance" on the article. It proposed to add onto the very end of the unemployment list the phrase "and also (if he is gainfully employed) to social insurance at the expense of the state or of his employers, in accordance with the legislation of e ach country" (E/800). Pavlov argued that "the principle of social insurance could be interpreted in very dif­ ferent ways. In the U.K., for instance, the workers themselves paid the contributions, and not their employers or the Government . . . . The reason behind such a system was not far to seek. The capitalist bourgeoisie realized that the present d egree of social

evolution of the world demanded a system of social insurance, if only to cope with serious social unrest, but it did not wish to bear the expenses" (p. 563). Corbe t , the U.K. representative, did not resp ond as to what the motivations were behind the 1948 spate of British welfare legislation, but she did say that "it would be inappropr iate to introduce the idea of social insurance. In her own and other countries, social insur­ ance implied payments of premiums by the workers; if no premiums were pai d, the system would be more correctly known as social security" (p. 568). Hernan Santa Cruz, the delegate from Chile, "was opposed to the USSR amend­ ment dealing with social insurance, as that concept was narrower than that of social

Social Security, Education, and Culture

209

security, which could be ensured not by State action [alone] but by other means as well" (p. 565). Contoumas of Greece disagreed with the Soviet idea which put all "the responsibility for social insurance on the State and the employer, while in cer­ tain countries at least part of that responsibility fell to the insured person; moreover, details concerning forms of insurance, which varied from country to country, could not be included in the body of the declaration of human rights" (p. 558). The Soviet amendment was rejected by a vote of 27 to 6, with 7 abstentions (p. 573). In a last attempt to clean things up, the New Zealand delegation proposed to re­ place the three rights of Article 25's first paragraph ( to a standard of living, to social services and to security) with just one long "right to social security adequate for health and well-being, including food, clothing, housing, medical care and social services, and protection in respect of unemployment, sickness, disability, old age, motherhood, childhood, widowhood" (AjC.3/267). Newlands explained that when her delegation had withdrawn its amendment to Article 22, it had intended to return to the issue when Article 25 came up for discussion. Given the fact that the phrase had been re­ tained in Article 22, its reintroduction in Article 25 would give it double exposure in different contexts, thus dooming the attempt. Watt of Australia found the New Zea­ land amendment "attractively simple and clear," but felt that "the words 'social secu­ rity' should not be repeated in Article 25, since they were used in a different sense in Article 22" (p. 565). In all likelihood the New Zealand delegation overreached its goal, for in its re­ write of Article 25 it also dropped the references to a standard of living and to a worker's family. Some delegations may well have objected to the deletions of those fea­ tures and for that reason withheld their support. The best and simplest way to effect the linkup between the phrase and the list of social security rights would have been to propose to insert the adjective "social" just before the word "security" in the text as it stood, without making any other changes that could derail the linkup. When Newlands saw that her initial proposal received no support and that most delegates favored the Chinese text being discussed, she tried to do just that. She said "she would not insist on the New Zealand amendment if the Chinese representative would consent to the insertion of the word 'social' before the word 'security' " (p. 569), Chang, the Chinese delegate, could not accept that proposal because "social security had been mentioned in Article 22, which had been intended to cover the subsequent articles. To repeat the words again in the present context would narrow their meaning" (571). We must conclude that there are two rights to social security in the Universal Declaration. Article 22 contains an overtly stated right of a broad and vaguely humani­ tarian kind, while Article 22 contains the more technical and standard legal right to social security, but with the adjective "social" suppressed. We have seen that the list of benefits in Article 25 must be taken in a minimalist sense, and not as the right to a full-fledged insurance scheme paid for or even run by the state. The consensus about the list was that the items on it were part of the cluster right to (social) security, but that the means of implementing that right should be left at the discretion of each state. In this way the drafters refused to link their declaration to any specific manner of organizing a national economy. As they had done in the case of property rights, they wanted to allow for the options of mixed economies and social security packages. Once they decided not to correct the clerical error and to leave the detached

210

Chapter 6

phrase in Article 22, the drafters had to find a new meaning for it there. We have seen how difficult that was. All the votes I discussed point in the direction of an umbrella concept such as that of human dignity and the development of one's personality. The mention of that last right connects Article 22 to the articles on the right to an educa­ tion (26) and the right to participation in culture (27), as well as to Article 29, which also speaks of the r igh t to the "free and full development of [one's) personality." These rights are the subject of the next section. 6 . 3 The Rights to Full Development, Education, and Culture The Right to Full Development

In the literature on human rights the right to "self-development" is often used to refer to the right of nations to self-determination,13 In the first article of both interna­ tional covenants on human rights it is stated that '�ll peoples have the right to self­ determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." The second article is also the same in both covenants and explains that this right means that ·�11 peoples may, for their own ends, freely dispose of their natural wealth and resources with· out prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence." 14 These articles of the two covenants lie at the heart of discussions of what are often called the third generation of (collective) human rights, the first group being the classical (individual) civil and political rights and the second group being the newer (individual) social, economic and cultural human rights. This third generation right to self-determination or self-development on the part of whole peoples is matched in the Universal Declaration by a second generation right to what the drafters called the right to full development on the part of individuals. In the preceding section on the rights to food, clothing, housing, and medical care we saw that one thing that this means is that (to paraphrase the covenants) "in no case may an individual be deprived of his or her own means of subsistence." And beyond subsistence, the right to free and full development of one's personality involves the rights to work, to free choice of employment and vocation, and to protection against unemployment, all in the first paragraph of Article 23. It also includes the rights to 'just and favorable conditions of work" as stipulate d in the rest of Article 23 and in Articles

24 and 25.

The only place in the earliest drafts where the phrase and the right to "full devel­ opment" occurred was in the draft submitted by the American Federation of Labor. In its preamble this document boldly stated that the "state has no good other than the good of its individual member [sic] , present and prospective - its supreme test is the way in which it provides for the full and free development of each individual. The more rights enjoyed by i ndividua ls and the more individuals for whom these rights of free development are safeguarded, the more democratic any socie ty will be" (W.8jp.2). Humphrey probably saw no need to state this right separately in his first draft be­ cause it permeated his entire socialist outlook and was clearly reflected in the various

Social Security, Education, and Culture

21 I

articles he submitted. While he was very explicit about the means that were to imple­ ment the right to self-development, he forgot to state the right itself. Cassin corrected this oversight by adding the right to "the full development of his personality" to Humphrey's article on "the right and the duty to do socially useful work" (W.2fRev.2). And probably still echoing the AFL submission, Cassin also submitted as his second article the claim that "The object of society is to afford each of its members equal op­ portunity for the full development of his spirit, mind and body" (W.2fRev.2). Cassin's Article 3 had to do with duties and together his second and third articles make up a large chunk of what became Article 29, where in the first paragraph we still find this early reference to a person's right to the full development of his or her personality: "Everyone has duties to the community in which alone the free and full development of his personality is possible." In the first section of the next chapter I tell the story of how these Cassin articles came to be part of Article 29 and why that article came to be placed at the end of the Declaration instead of at the beginning, which is where it started its drafting journey. Wilson, the U.K. delegate to the First Drafting Session, objected to Cassin's in­ sertion of this right to the development of one's personality into Humphrey's article on work. He proposed its deletion because "this was covered by Article 2" (SR.l4/p. 6), referring to the text of Cassin's second article quoted above. He was supported in this request by Santa Cruz, the delegate from Chile. Neither gentleman objected on the grounds that people do not have this kind of human right, but simply because the right was already stated elsewhere, namely, in what was to become Article 29. The Declaration contains two more occurrences of the right to full development, one in Article 22 and one in Article 26. In the preceding section we saw that the Cuban delegation was successful in changing Article 22 to speaking-as it now does - of "the realization . . . of the eco­ nomic, social and cultural rights indispensable for his dignity and the free develop­ ment of his personality." This successful attempt to change the ending of Article 22 was one of several attempts on the part of the Cuban delegation to upgrade the status of the new social, economic, and cultural rights in the Declaration (see 4.1). Article 3 of the Declaration arrived at the Third Committee as follows: "Every­ one has the right to life, liberty and security of person" (AfC.3/259). In spite of the great similarity between this article and the Bogota text, which also spoke of "security of person," several Latin American delegations proposed amendments that would ex­ pand Article 3 to include an overt reference to social, economic, and cultural rights.16 These efforts culminated in an amendment proposed jointly by the delegations of Uruguay, Cuba, and Lebanon. They proposed the following: " Everyone has the right to life, liberty, security of person and to the economic and other conditions neces­ sary to the full development of the human personality" (AfC.3/274jRev.l). The main objection to this proposed expansion of Article 3 was that it conflicted with the logi­ cal flow of the articles (p. 154). Chang, the Chinese delegate who most argued this case, did see the desirability of bringing the social and economic rights forward and making what is now Article 20 (then 22) part of Article 3; "he would insist, however, that the new text should be placed in a separate paragraph in order to bring out its importance" (p. 177). He said he "would vote against the joint amendment because he considered it incorrect to express two sets of ideas in a single paragraph" (p. 177),

ZIZ

Ch11pter 6

Chang never did formally propose the merger of what is now Article 22 as a separate paragraph into Article 3. His support would have swung the vote the other way, for the joint amendment was rejected by 21 votes to 20, with 12 abstentions (p. 1 88). The point of this detour about Article 3 is that it shows that the right to "the full development of the human personality" was seen by most delegates as a way of summa­ rizing all the social, economic, and cultural rights in the Declaration. The proponents of the joint amendment to Article 3 felt that by adding this one right to the already present rights to "life, liberty and security of person" they were in effect bringing the entire second half of the document forward into Article 3. This is the background of the Cuban amendment to Article 22. Having lost the battle about Article 3, the Cuban delegation tried again with Article 22 and succeeded. There was no long debate, but from the earlier discussion about Article 3 we know what the meaning of this ab­ stract right to full development meant to the drafters. Together with the other rights in Article 3 they counted it among the most fundamental of all the human rights in the Declaration. Most of the rights that follow Article 22- those listed in articles 23 through 27 -aim at the realization of the right to the full development of one's per­ son. This is one of the main points Article 22 makes, and it can help us focus the discussions of the rights to education and culture that follow. The Right to Education

The third occurrence of the right to the full development of the human personality is found in Article 26, which deals with education-related rights. The first paragraph of Article 26 contains five components of the right to an edu­ cation: (1) the generic right to education itself, (2) that it shall be "free, at least in the elementary and fundamental stages," (3) that "education shall be compulsory," (4) that "technical and professional education shall be made generally available," and (5) that "higher education shall be equally accessible to all on the basis of merit." Paragraph 2 of the article states that all five of these rights are to be "directed to the full devel­ opment of the human personality." Because the connection between these five rights and the more basic right to full development is in most instances so obvious, and since that basic right was agreed to by all, these five rights were not discussed much. They implement what all delegations agreed upon from the start. As de Athayde, a Brazilian delegate to the Third Committee, stated the "right of all to education was indisputable. The right to share in the heritage of mankind formed the basis of our civilization, and could not be denied to anyone. Without education the individual could not develop his personality, which was the aim of human life and the most solid foundation of society" (p. 597). Given the goal of the full development of everyone's personality in the context of society- the only context in which this can occur- the nuts and bolts of the first paragraph readily fell into place. In fact, Humphrey had four of the five components in Article 26's first paragraph in his H36: "Everyone has the right to education. Each State has the duty to require that every child within its territory receive a primary education. It shall also promote facilities for higher education without distinction as to the nice, sex, language, religion, class or wealth of the persons entitled to benefit therefrom" (AC.l/11/p. 41). We find here the element of free and compulsory educa-

Social Security, Education, and Culture

Z' !I

tion at the primary level, which came to read "in the elementary and fundamental stages." The inclusion of this right could almost be taken for granted. The Panama­ nian delegation, for instance, "felt that it would be unthinkable if a human right as elementary as the right to an education were not included in the Declaration." Its delegate, Manuel Jezus de Quijano, had perused Humphrey's survey of the world's constitutions and correctly "pointed out that the constitutions of forty countries pro­ claimed the principle of free and compulsory education. In those countries, everyone without distinction whatsoever had the right to primary education ." 18 I should also point out that Humphrey's long and explicit list of nondiscrimina­ tion items was not deleted from the article until the Third Session, which was intent on making cuts. This prohibition is captured by the word "everyone,'' 17 and it is re­ peated by the phrases "generally available" and "equally accessible" for those stages of education that are beyond the elementary or fundamental level. However, Adnan Ku­ ral, the Thrkish representative, had a point when he argued that "all education should be free . . . or it could not be said . . . that there should be equal access on the basis of merit" (p. 580). The repetition of the nondiscrimination feature, even in this short­ ened form, was highly unusual. The phrases "generally available" and "equally accessible" point to the intercon­ nectedness between everyone's right to the full development of his or her personality and the interest that society has in that right being implemented. The first para­ graph of Article 26 reflects this communitarian element in the compulsory character of elementary education and in the widespread availability of professional training and higher education. As Kural put it, "primary education should be free, otherwise it could not be made compulsory" (p. 580). One reason for making it compulsory is that children are not yet the autonomous persons they will hopefully be after being educated and trained as much as their natural talents will allow. That means that the parents or the state, or both, need to implement this right to full development on be­ half of the children who possess that right. Cassin, the French delegate to the Third Committee, told his colleagues that the "compulsory nature [of primary education should] . . . be explicitly stated, so that parents would not be able to neglect their duty to their children" (p. 586). But not just the individual, society, too, has an interest in having an educated citizenry. In the words of Melchor Aquino, the Philippine delegate to the Third Com­ mittee, "the events of recent years ha[d] shown that an enlightened and well-informed . public constituted the best defense of democracy and progress" (p. 593). Because states want their citizens to have an education they make it both compulsory and free. At least one-third of the forty constitutions mentioned above linked the right to free and compulsory education to the need a state has for a civic-minded attitude in its citizens. For example, the second paragraph of an Argentine amendment in the Third Committee stated that "every person has the right to an education that will prepare him [among other things] to be a useful member of society" (A/C.3/251). The term "useful" can be read in different ways. In the Cuban proposal it referred to the devel­ opment of a person's "natural talents" and to a person's "desire to utilize the resources that the State and the community is in a position to provide" (A/C.3/261). There is a c lose link in almost all societies between the goals of education and the needs of

214

Chapter 6

society for certain types of work or employment. A huge chunk of this connection was almost lost to the Declaration; it was saved at the insistence of the Argentine and French delegations. I noted that Humphrey's text contained four of the five components of Article 26's first paragraph. H36 lacked the right to the general availability of technical and professional education. Cassin noted this omission and added this right when he re· wrote the Humphrey text.18 As a result of this initiative the First Drafting Session adopted an article on education which stated that there "shall be equal access for all to such facilities for technical, cultural and higher education as can be provided by the State" (2ljp. 80) . The next three drafting stages continued the right to a higher education equally accessible to all and on the basis merit, but all of them dropped the provision for technical and professional training from the article.19 In light of the fact that the term "higher education" is often associated with more academic training, this deletion was unfortunate. For the m�ority of the world's young people postprimary education -if they get that- involves some sort of technical or professional training. The Third Committee reinserted the right to technical training because Cora­ minas, the delegate from Argentina, complained that the article made no mention "of modern educational trends such as vocational training and the development of techni­ cal aptitudes; it should not be forgotten," he said, "that industrial workers had ceased to be artisans and were becoming technicians." 2° Corbet of the United Kingdom said she agreed with the point about "the need for technical aptitudes," but that the idea was covered by "the concept of higher education" {p. 585). Cassin took this exchange as an opportunity to revive this (deleted) part of his own rewrites. He pointed out that "between elementary education and higher education there was room for technical and vocational training" and suggested the clause "technical and professional educa­ tion shall be made generally available" {p. 586). When nothing was done about this suggestion, Corominas reiterated his delega· tion's view that a distinction "should be drawn between higher education and profes­ sional training." He told his colleagues that ''Argentina paid very particular attention to the professional training of the average man. For that person the Argentine dele­ gation would like professional training to he included among the other types of edu­ cation considered in Article 23 [26] " (p. 595). After this second plea, the French dele­ gation formally submitted an amendment to the article that contained the sentence "Technical and professional education shall be made generally available" (AjC.3j355). Judging the French text to be better than his own less explicit one, Corominas with· drew his amendment in favor of the French proposa1.21 The sentence stating the right to the general availability of technical and professional education was adopted by 25 votes to 2, with 6 abstentions (p. 602). In the age of the computer that was a propi· tious addition. So much for the material connections between education, work, and social utility. Another way of understanding the usefulness of an educated citizenry stresses civic education and public virtues rather than job skills. A number of South Ameri­ can constitutions also stated good citizenship as a goal of the educational system. According to its constitution, Haiti took an interest in "the moral and civic training of citizens." Ecuador wanted educational training to be "compatible with morality and republican institutions." Brazilian education was to be inspired by the "principles of

Social Security, Education, and Culture

215

liberty and the ideals of human solidarity." The Chinese constitution spoke of "the development among citizens of a national spirit, a democratic spirit [and] national morality." Uruguayan institutions of learning were to provide "for the formation of the moral and civic character of the students." And so on.22 Some constitutions went into more detail, as did Panama's which stated that the "service of national education in its intellectual, moral, civic and physical aspect is an essential duty of the State" and that it was to "be inspired by democratic doctrine and ideals of national aggrandizement and human solidarity." 23 In the late 1940s the curricula of the public schools of Mghanistan, a Muslim country, were structured so as not to infringe on "the articles of the Islamic faith" and "the religion of the Ahl-i­ Zimma." This meant that this particular strand of the Muslim religion permeated the school system. In a more secular vein, all instruction in Cuba was to "be inspired by a spirit of Cubanism and human solidarity, tending in the minds of those being edu­ cated a love for their Fatherland, its democratic institutions, and for those who have fought for one or the other." In this way each nation on earth seeks to imbue its citizens with its own brand of civic education. Obviously, the drafters of the Universal Declaration could not pre­ scribe generally or universally any of the particular brands of civic education being practiced by any of the member states. Nor could the drafters let each state impose on its own people whatever civic education it feels necessary (see my discussion of the third paragraph of Article 26 at 7.3). The experience with the Nazi system of educa­ tion had taught them otherwise. What they could do, however, is what they did do in the second paragraph of Article 26. There they prescribe a set of guidelines that are valid in different cultural settings and not dependent on any specific level of develop­ ment. No country's brand of civic education is to conflict with these guidelines. When the nuts-and-bolts paragraph of Article 26 arrived at the Working Group of the Second Session A. L. Easterman, the representative of the World jewish Con­ gress, immediately noted that "the article on education provided a technical frame­ work of education but contained nothing about the spirit governing education which was an essential element. Neglect of this principle in Germany had been the main cause of two catastrophic wars." He therefore proposed to add the following article: "This education shall be directed to the full development of the human personality, to strengthening respect for human rights and fundamental freedoms and shall com­ bat the spirit of intolerance and hatred against other nations or racial or religious groups everywhere" (SR.8fp. 4). With some differences in the wording at the end, this is almost what we have in the final product of Article 26's second paragraph. The first reaction was positive. Cassin proposed that the phrase "full development of the human personality" be replaced with a reference to the "full development of the physical, spiritual and moral powers of the individual" (p. 5). By 5 votes with 1 absten­ tion and changing the order of the terms, the Working Group of the Second Session adopted the following text: "Education will be directed to the full physical, spiritual and moral development of the human personality, to the strengthening of respect for human rights and fundamental freedoms . . . everywhere" (p. 6). This enumeration of human potentialities led to a discussion in the Second Session about the desirability of adding the term "intellectual" and of how that would differ from a person's moral and spiritual development (SR.40). However, when the Third Session went back to the

216

Chapter 6

original full-development-of-the-human-personality clause all such speculation came to an end. It was in this atmosphere of cutting out all extraneous material that the depth of the rationale for the second paragraph of Article 26 became fully apparent. At this time there were still two articles involved, 27, which became paragraph 1 of Article 26 and 28, which became paragraph 2 of 26. What worried the defenders of Article 28 most was the joint U.K.-India proposal to substitute for both Articles 27 and 28 the single sentence "Everyone has a right to education" (99jp. 8). Pierre Lebar, the UNESCO representative, immediately pointed out that "after a war in which most fundamental human rights had been trodden in the dust, UNESCO felt it extremely important to proclaim those rights firmly and clearly in a document of solemn sig­ nificance as the International Declaration of Human Rights" (SR.67jp. 11) . Referring to the possible deletion of what became Article 26's second paragraph, "he warned the Commission against such a step." "He cited the example of Germany, where under the Hitler regime, education had been admirably organized but had, nevertheless, produced disastrous results. It was absolutely necessary," he said, "to make clear that education to which everyone was entitled should strengthen respect of the rights set forth in the Declaration and combat the spirit of intolerance" (p. 12). F. R. Bienen­ feld, the representative of the World jewish Congress, reminded the delegates that in the Second Session they had come to realize that the nuts and bolts by themselves would not do and that something had to be said about the goal and the spirit of the educational process. They had agreed to do that in the separate article now being considered for deletion. ''As the representative of UNESCO had pointed out, educa­ tion in Germany and other fascist countries had been carried out in compliance with the principle of the right of education for everyone; yet the doctrines on which that education had been founded had led to two world wars. If the Declaration failed to define the spirit in which future generations were to be educated, it would lose its value as a guide for humanity. It was necessary to stress the importance of the article devoted to the spirit of education, which was possibly greater than that of all the other articles of the Declaration" (p. 13). He pointed out that "at its last session UNESCO had adopted the entire text of article 28 [26(2)] as a basis for its efforts in Germany and in all other countries where it was necessary to work a change in the spirit of edu­ cation. Mr. Bienenfeld appealed to the Commission to retain article 28 [26(2)] in the Declaration" (p. 14). The chairman appointed a subcommittee consisting of the representatives of China, France, Lebanon, Panama, the U.K., the USSR, and the U. S. That committee proposed a single sentence ("Everyone has the right to education") , which was im­ mediately replaced by what became paragraph I of Article 26. This subcommittee also proposed adding the following second sentence: "Education shall be directed to the full development of the human personality, to the strengthening of respect for human rights and fundamental freedoms and to the promotion of international goodwill" (SR.69jp. 2). By dropping the adjectives "physical, intellectual, moral and spiritual" this text restores the original opening phraseology of "full development of the human personality." Because he thought "it was dangerous to summarize in three or four lines all the theories or the aims of education" Wilson, though a member of the subcommittee, still wanted to drop this second paragraph (p. 4). His colleagues did not agree and

Social Security, Education, and Culture

217

adopted by 7 votes to 4, with 3 abstentions, the Chinese version o f Article 26's second paragraph: "Education shall be directed at the full development of the human per­ sonality, to the strengthening of respect for human rights and fundamental freedoms and to the promotion of international goodwill and to the combatting of the Spirit of intolerance and hatred against other nations or racial or religious groups" (p. 9). At the Third Committee stage the reference to the mission of the United Nations as part of the goals of education was added. The Mexican and United States dele. gations jointly proposed this replacement for the paragraph: "Education shall be di­ rected to the full development of the human personality, to strengthening respect for human rights and fundamental freedoms and to the promotion of understanding, tolerance, and friendship among peoples, as weU as the activities of the United Nations for the maintenance of peace" (A/C.3/356). The new emphasis on positive terminology was widely noted and not equally agreeable to all. Cassin, the French delegate, made the telling point that the spirit of intolerance and hatred "unfortunately did exist and would not be eradicated by being passed over in silence" (p. 587). Malik of Lebanon shared this sentiment. just before the vote was to be taken he asked that the phrase "all peoples" be replaced with "all nations, racial and religious groups." This more expansive phrase brought the need to combat intolerance and hatred for nations and peoples that are different than one's own into the text in an indirect way. It was adopted by 22 votes to 7, with 9 abstentions (p. 603). From the start there was strong support for the Mexican initiative to refer to the activities of the United Nations in the article on education. Pablo Campos Ortiz, the Mexican delegate, argued that "the support of an educated public opinion was essen­ tial for the success of the United Nations. The League of Nations' most serious defect had been its lack of contact with the peoples. . . . The General Assembly had adopted its Resolution I37 (III) recommending that the purpose and the principles of the United Nations should be taught in the schools of Member States" (p. 583). He was supported by comments from numerous delegations.24 The additional United Nations clause was included in the second paragraph by 35 votes to 2, with I abstention. The entire joint Mexican-U.S. text was adopted by 35 to 0, with only I abstention. Th e Rig ht to Participation in Culture

We saw in Chapter 4, section 4, that Article 17 of the Declaration asserts a dual prop­ erty right, according to which everyone has the right to own property "alone as well as in association with others." Article 27 of the Declaration presents us with a similar duality. In its first paragraph it speaks of culture as something to which we all have a common claim: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." The ownership of culture, if we can speak of it that way, is a shared kind of ownership. But there is also a private kind of ownership of culture that is declared in the second paragraph of Article 27: "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author." For this set of rights Humphrey had almost no clear constitutional precedents before him. The most explicit references were in the draft of the Inter-American

21 8

Chapter 6

Juridical Committee which had been submitted by the delegation of Chile. It con­ tained a detailed statement on the "rights to the benefits of science," as well as rights to "the use of whatever means of communication are available," examples of which were "the freedom to use the graphic arts, the theater, the cinema and other agen­ cies for the dissemination of ideas." 211 Placing art before science, Humphrey wrote in his H44 that: "Everyone, has the right to [freely] participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits" (AC.l/3/p. 14). (I explain the insertion of "freely" below.) This kind of crisp language comes from someone who experienced these things firsthand and personally. R. St. J. MacDonald tells us that the Humphreys were deeply involved in the cultural life of Montreal and other places they lived. Humphrey and his wife, Jeanne, entertained numerous intellectuals and artists, "were involved with the art community in Montreal . . . [and] got to know most of the artists in the city." Humphrey helped found the Contemporary Arts Society and served for a time as its vice-president.28 Humphrey's memoirs are full of references to cultural events attended, plays seen, and books read.27 The first sentence of Article 27 reflects this kind of direct involvement in and appreciation of the arts. As a socialist, Humphrey thought that everyone had a right to similar experiences. In the words of a U.S. submis­ sion, "There shall be equal opportunity for all to participate in the . . . cultural life of the community" (36/p. 3). This egalitarianism makes sense once we see the link that exists between every­ one's right to the full development of his or her personality- if we grant that right­ and his or her right to participation in culture. When Amado suggested to the Work­ ing Group of the Second Session that the article be deleted because it overlapped with ones that "had already been adopted," Cassin demurred because the article "con­ tained a new idea, that of participation in cultural life" (SR.9fp. 2). He reported that this article "had been adopted by the Drafting Committee at the request of a consider­ able number of cultural organizations" (p. 3). One was UNESCO, on whose behalf Jacques L. Havet was attending the sessions of the Human Rights Commission. Havet told the representatives that UNESCO felt it "was necessary to assert that all had the same right to participation in culture and thus to affirm the priority of cultural life over materialistic conceptions" (p. 2). At this point the article was accepted by 3 votes to 1, with 2 abstentions (p. 3). The Third Committee made two small but important changes to the text of Article 27's first paragraph.28 Upon the suggestion of the Peruvian delegation the word "freely" was inserted in the first sentence. Its delegate, Jose Encinas, argued that it was not enough for the Declaration to state that everyone has the righ t to participate in the "cultural, artistic and scientific life of the community." It should also state "the right to do so in that complete freedom without which there could be no creation worthy of man" (p. 619). ''An earlier article . . . had dealt with freedom of thought; it seemed pertinent now to recognize freedom of creative thought, in order to protect it from harmful pressures which were only too frequent in recent history" (p. 619). Encinas therefore formally proposed that the word "freely" be inserted in the first sentence.29 This amendment was adopted by a vote of 38 to none, with 2 abstentions. The other change involved a restoration of the original Humphrey text. What ar­ rived at the Third Session of the Commission was everyone's right to participate "in

Social

Securl�

EducAtion, and Culture

Zl9

the benefits that result from scientific discoveries" (95/Art.30). Without any expla­ nation (other than recalling that "the phrase was derived from Bacon" ), Chang, the delegate from China, proposed that the text be changed to say "share in scientific advancement" (SR.70jp. 4). Pavlov, the USSR delegate, said he liked the article be­ cause "the benefits of science were not the property of a chosen few, but the heritage of mankind. He stressed that the task of science was to work for the advancement of peaceful aims and to make human life better" (SR.70 p. 5). Though it deleted the clearer term "benefits," this Chinese proposal was accepted by 8 votes to 3, with 5 ab­ stentions (p. 6). The mistake, to call it that, was caught in the Third Committee. By dropping the word "benefits" from the text, the Third Session had diluted the egalitarian impulse behind the original text. Perez Cisneros, the Cuban delegate to the Third Committee, saw this and wanted to go back to the earlier wording. He noted that "not everyone was sufficiently gifted to play a part in scientific advancement" and proposed that the text say that everyone has the right "to share in the benefits that re­ sult from scientific advancement" (A/C.3/261). This proposal was well received. Cassin agreed that "even if all persons could not play an equal part in scientific progress, they should indisputably be able to participate in the benefits derived from it" (p. 619). Both Chang of China and Baroody of Saudi Arabia stressed everyone's ability for aes­ thetic enjoyment (pp. 627, 629). The rationale was brought back to the original South American impulse when just before the vote Santa Cruz of Chile observed that the Cuban amendment "did no more than restate in broader terms the principles adopted by the Inter-American Juridical Committee." He recalled that his delegation had been "the first to pro­ pose that the declaration should mention the right of every person to participate in the benefits of scientific advancement," which was the "core meaning" of the Cuban amendment (p. 631). I interpret this Chilean plea before the vote not just as an at­ tempt to get credit for introducing the idea, but also to straighten out the rationale for this provision and to make sure that the earlier goal of the amelioration of the human condition was preserved. The Cuban restoration of "and its benefits" was adopted unanimously. So was the entire text of Article 27's first paragraph after these amendments were made (p. 634). This original rationale preserves the connection between the right to the full develop­ ment of the human personality of Articles 22, 26, and 29 and the rights just discussed. To participate in the benefits of science means, among other things, to be able to receive affordable medicine, which is a prerequisite to the full development of one's personality. The second paragraph of Article 27 lands us in the middle of a controversy about international copyright law. This controversy involved a disagreement between nations that looked upon international copyright as just a different form of private property and those that think that this kind of property right has a special feature attached to it that all other kinds of property rights lack. This extra feature is often referred to as an author's or an artist's (or even a scientist's) "moral right" over the use of his or her work. This moral right is said to remain and to linger even after the legal rights to commercialization have been signed away or expired.80 In the late 1940s, when the Universal Declaration was being written, no international consensus had yet been reached and the issue was very much contested. The discussions about Article 27 's

220

Chapter 6

second paragraph reflect these international tensions. The paragraph's presence in the Declaration shows that those delegations that believed that there was something "moral" about someone's "interests" in his or her intellectual property had the votes to make the Declaration say so. An examination of the votes reveals, however, that the majority of positive votes were not necessarily cast on the understanding that this moral interest would last or linger even after the material interests have disappeared. Humphrey had nothing like the second paragraph of Article 27's "right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author" in his article on the right to cul­ tural participation. Cassin, as the delegate from the nation that historically has led the battle for the recognition of moral property rights, added this right as an extra article.91 The intent of the addition was to focus on the extra "moral right." Wrote Cas­ sin: "The authors of all artistic, literary, scientific works and inventors shall retain, in addition to just remuneration for their labour, a moral right on their work andjor dis­ covery which shall not disappear, even after such a work andjor discovery shall have become the common property of mankind" (W.2/Rev.2). Both Roosevelt and Wilson objected because they felt that this right belonged more properly "to the domain of copyrights" (SR.15jp. 5). The First Session of the Drafting Committee decided not to include the right in the Declaration, but to pass on the article with a note saying the matter "should receive consideration for treatment on an international basis" (p. 15). But the French delegation was very persistent in this matter of intellectual property rights.92 That persistence finally paid off in the Third Committee, for which the way was prepared in the Third Session of the Commission. This Third Session met from May 28 through june 18, 1948. Overlapping with that Third Session was the Conference on the Berne International Copyright Conven­ tion, which met from june 5 through june 26, 1948 in Brussels, Belgium, and revised the moral rights clause in the Berne Convention. The French delegation to that Con­ ference proposed and had accepted a change in wording that made for stronger intel­ lectual property rights.ss Though most Latin American nations were not signatories to the Berne Convention, the new language of "honor and reputation" fit well with their own approach to copyright law. This view had led them just that April to include in the American Declaration of the Rights and Duties of Man a copyright provision. Article 1 3 of this Bogota Declaration stated that every person has "the right to take part in the cultural life of the community." It then added: "He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific, or artistic works of which he is the author" (122/p. 4). M aking only three minor stylistic changes the French delegation took over this Bogota article and proposed it to the Third Session as a second paragraph f�r our Article 27, which was then still 26.94 Metha of India and Wilson of the U.K. felt tl;lat no special group should be singled out for attention. But support had started to build. Josaquin Larrain, the delegate of Chile, "strongly supported the French proposal and was gratified that it was based on the Bogota Declaration" (SR.70jp. 6). Fontaina of Uruguay, also "favoured the French proposal and associated himself with the repre­ sentative of Chile." He thought that while it "had made provisions for the rights of other groups [the Declaration] had left the intellectual workers without protection" (p. 7). Speaking as a representative of the United States of America, Roosevelt was op-

Social Security, Education, and Culture

ZZI

posed to the French amendment "both because the Declaration should be kept short and because her delegation was of the opinion that copyright was a problem of inter­ national law" (p. 7). The Third Session rejected the French addition by 6 votes to 5, with 5 abstentions. That vote was reversed in the Third Committee, which gave us the second para­ graph of Article 27. The Third Committee had a much larger membership, which meant that the proponents of the right could count on a much larger Latin Ameri­ can vote. In fact, two delegations from Latin America competed with what so far had been a purely French initiative. Both the Cuban and Mexican delegations proposed that the Bogota text be added as a separate paragraph to the article on participa­ tion in culture (A/C. 3/261, 266) . The French delegation repeated the proposal it had made to the Third Session. Mter some discussion the three delegations proposed this joint amendment as a second paragraph: "Everyone has, likewise, the right to the pro­ tection of his moral and material interests in any inventions or literary, scientific or artistic works of which he is the author." 36 While the Ecuadoran and United States delegations made the point that the right to intellectual property was already dealt with by the article on property rights, other opponents argued that the right to intellectual property was not a human right at all. Corbet of the United Kingdom stated flat out that "copyright was dealt with by special legislation and in international conventions" and that since "it was not a basic human right, the declaration of human rights should be universal in nature and only recognize general principles that were valid for all men" (p. 624). Her Australian counterpart, Watt, also felt that "the indisputable rights of the intellectual worker could not appear beside fundamental rights of a more general nature, such as free­ dom of thought, religious freedom or the right to work" (p. 630). One of the few South American delegations to speak against his colleagues was Santa Cruz of Chile, who argued that the joint amendment "should not be included in the Declaration." 86 The French delegation, and to a lesser extent some its partners, still focused its rationale on the special character of the moral interests under discussion.37 The Latin American delegations sponsored the second paragraph because they saw it more as a step toward the internationalization of copyright law. They had no special interest in the more technical Berne Convention language about rights in intellectual prop­ erty. Nothing in their rationales suggests that they thought that the "moral interests" of Article 27's second paragraph outlasted the "material interests." Campos Ortiz of Mexico defended the rights of the individual as "an intellectual worker, artist, scien­ tist or writer." In answer to those who had said that these rights were already adequately covered in national and international legislation, he responded that "the effectiveness of such protection was at best relative and often non-existent," which is why, he said, "the United Nations should put its moral authority behind protecting all forms of work, manual as well as intellectual." That meant safeguarding "intellectual production on an equal basis with material property" (p. 617) . The Argentine, Venezuelan, Peruvian, Brazilian, and Ecuadoran delegations also spoke up in favor of the second paragraph and none of them mentioned the "moral interests" of scientists, artists, and writers as outlasting the material interests in the fruits of their labor.38 Approaching the same moral right from a more populist perspective, Chang,

zzz

Chllpter 6

the Chinese representative, argued that "the purpose of the joint amendment was not merely to protect creative artists but to safeguard the interests of everyone." For that reason "literary, artistic and scientific works should be made accessible to the people directly in their original form. This could only be done if the moral rights of the creative artist were protected" (628). The Third Committee adopted the second paragraph of Article 27 by 18 votes to 13, with 10 abstentions (635). Since the Com­ munist delegations abstained from voting, the Latin American contingent carried the vote in favor: Panama, Peru, Poland, Uruguay, Venezuela, Argentina, Belgium, Brazil, China, Colombia, Cuba, Dominican Republic, France, Greece, Honduras, Luxem­ bourg, Mexico, and the Netherlands (634). The Bogota influence had made itself felt, this time literally. In section 4 of the next chapter I will finish this discussion of the right to culture with an explanation of why the Declaration does not contain a special article dealing with the rights of members of ethnic or cultural minority groups. 6 . 4 The Distinction Between "Old" and "New" Human Rights

The birth of Article 22 (on the realization of these new rights) and Article 28 (on the realization of all the rights) elicited from the drafters a discussion on the status of the social, economic, and cultural rights. A cursory reading of the Declaration might sug­ gest that the drafters did not think of these "new," nineteenth-century rights as having the same status as the older and more established civil and political rights that hail from the eighteenth century. The argument would be that in Article 22 the drafters made reservations and qualifications that they did not make when they adopted the older eighteenth cen­ tury rights that are located in the first half of the Declaration. Article 22's phrases "as a member of society," "through national effort and international co-operation," and "in accordance with the organization and resources of each State" are all thought to imply this lower ranking, for they make qualifications that were not made with the rights listed before it. Even though the rights listed after Article 22 entered on the ground floor by way of Humphrey's Latin American connection, these qualifications mark them as less than absolute and give them a second-class status within the Dec­ laration. So might the argument go. But this is too quick a reading of the document. The drafters were not unaware of the differences between these two generations of rights; the majority of them saw that difference as confined within a more fundamen­ tal equality and unity of all the rights in their document. After a brief history of the distinction between "old" and "new" rights in the drafting process, I discuss the adop­ tion of Articles 22 and 28, which will bring us to the next section with its exposition on the organic unity of the document and of the rights in it.

A Brief History of the Distinction Right at the start of the drafting process, in April 1946, Henri Laugier, the assistant secretary-general in charge of social ·affairs and John Humphrey's boss, told the dele­ gates to the Nuclear (or organizing) Committee that they would have to show "that the political rights are the first condition of liberty but that today the progress of

Social Security, Education, and Culture

223

scientific and industrial civilization has created economic organizations which are in­ flicting on politically free men intolerable servitude and that, therefore, in the future, the declaration of the rights of man must be extended to the economic and social fields" (E/HR/6/p. 2). As we have seen, Humphrey had no reservations about follow­ ing these instructions. He devoted ten articles, H35 through H44, to these new social, economic, and cultural rights. Until the very end there were delegations who hesitated about the inclusion of these nontraditional rights, but they never had either the ratio­ nale or the votes to turn these more or less private reservations into drafting policy. The delegates from Australia and the United Kingdom thought that it was better to leave these kinds of rights for a later Convention. But Santa Cruz of Chile disagreed and argued that "the social and economic rights should be mentioned not only in the Articles of the Declaration but also in the Preamble, in order to give them adequate importance" (AC.l/SR.9/p. 10). After the chairman "remind[ed] the Drafting Com­ mittee that the Economic and Social Council, the parent body of the Human Rights Commission, had stressed the importance of the inclusion of these rights to be con­ sidered" they were (under the sponsorship of Santa Cruz) read into the record rather quickly and in bulk (SR.l2/p. 8). The Second Session of the Commission had to make a choice about whether to take the Humphrey/Cassin text as basis for its discussions or the United Kingdom pro­ posal (see 1.1). Since the U.K. draft did not include any social, economic and cultural rights that choice involved a decision on the status of these rights. Bogomolov of the USSR spoke against the U.K. convention proposal because it did not include what his delegation thought were some of "simplest and most essential" rights like "the right to work, leisure, education, social security and the inviolability of the human person" (SR.42/p. 12). Charles Dukeston of the U.K. responded to Bogomolov's criticism with the argument that economic and social rights and social security rested primarily on the affirmation of the free­ dom of speech and the right of association. Hence the first essential was to lay the foundations of the elemental freedoms . . . . If the rights and freedoms proclaimed in the present Bill be­ came a reality they would contribute to the gradual establishment of the other freedoms . . . . In no democratic country had freedom developed otherwise. Human rights developed primarily through the recognition of freedom of speech, then passed into law. , . . The world needed free men and not well-fed slaves. Therefore, in developing human rights, it was necessary to begin by proclaiming freedom of speech, freedom of association, freedom of thought, without those fundamental freedoms, human rights could not be developed,S9

Dukeston expressed here the not uncommon view that civil and political rights are far more important than social and economic ones because the former are a prerequisite for the latter, but the latter not for the former. Klekovkin of the UKSSR defended the opposite view that the newer rights were more important than the older ones. He though t that the convention lacked in sin­ cerity. I t dealt with only one aspect of human rights and completely disregarded economic rights such as trade union rights, social insurance, the prevention of unemployment . . . which were the foundation of aU other rights. The Commission had forgotten that those instruments were in­ tended for the great mass of workers, whose views on life had changed considerably since the

World War. . . . The Convention confirmed the truth of the expression he had heard in the United States: "Men are free, but are dying of hunger." The common man was only interested in freedom of speech and freedom of the press when he was protected against poverty; yet the Convention provided no guarantee of material living conditions. (SR.42/p. 16)

A roll-call vote was taken on whether to accept the draft convention as a text for further discussion. Those who did not (yet) accept the equal status of all human rights voted to accept the convention as it had been submitted, that is, without social, eco­ nomic, and cultural rights in it. These delegations were either opposed in principle to this kind of accountability or they thought the time was not ripe. The Second Session adopted the convention by 10 votes to 4, with 4 absences. Voting for the convention were: Belgium, China, Egypt, France, India, Iran, Lebanon, the United Kingdom, the United States and Uruguay; voting against were the BSSR, the UKSSR, the USSR, and Yugoslavia, absent were Australia, Chile, Panama, and the Philippines (42/17). Except for Australia, we do not know how the absent nations would have voted and it may be significant that they were absent instead of present and abstaining. In the Second Drafting Session the Australians came with a bold proposal to in­ clude social and economic rights in the draft covenant. They said that their proposal was designed to include in the Covenant certain legal and economic and social rights which had been recognized in the Draft Declaration but omi tte d from the Draft Covenant." The ratio­ nale for this inclusion was that "Freedom from want, the third of the Four Freedoms, had been widely accepted in the worJd. At the present stage in world history people were e spe c ially inter­ ested In economic and social as well as political rights and it was import ant to include them in order to give a comple te and balanced statement in the Covenant. The Covenant should repre­ sent a guarantee of rights which concerned the common man; it shouid not be drawn up on the basis of the denial of rights under Nazi persecution. (SR.29/p. 2)

The reactions of delegations differed. Sender of the AFL agreed that "public opinion at the present time was primarily interested in economic and social rights" (p. 3). Santa Cruz, the Chilean delegate, also thought the "economic and social rights were especially important in the modern world and could not be omitted from the first Covenant" (p. 4). Wu of China and Cassin of France were sympathetic to the idea, but felt that the timing was off and that it was too late to make such deep changes in the covenant at that stage (p. 6). The USSR delegation, from which we might have exp ected strong support, also was lukewarm. Pavlov said he had "not had time to consider in detail the Australian proposal and would reserve the right to make a state­ ment at the next stage of the examination of the Covenant" (SR.29/p. 8). He could not support the Australian pr oposal because he felt that the relationship between it and Articles 55 and 62 of the United Nations Charter had to be sorted out first (p. 8). Other delegations were more clearly opposed. Malik was of the opinion that "there was . . . an essential difference between governments expressing belief in ideals and between holding themselves as governments internationally responsible for their realization." As he saw it, all the government controls that would be needed to real­ ize these rights would "mean the destruction of free institutions in a free world" (p. 4). "Governments should only see that the material conditions of freedom were maintained" (p. 4). These' seeds of libertarianism do not fit well with Malik's Catholic

Social Security, Education, and Culture

225

credentials. They do fit with his consistent opposition to any state obligations in the Declaration. Roosevelt was of the same opinion. The covenant should be for all states she felt, and "not only for a progressive State like Australia." She believed "it was more advan­ tageous to include a statement of ideals, hopes, and aspirations in the Declaration, which was sort of an educational document, rather than in a Covenant, which should include those provisions which governments could feel responsible for putting into practice." The first covenant, her delegation felt, "should contain only fundamental rights and freedoms" (p. 5). As the sponsor of this one-sided covenant, Wilson reiter­ ated that "there was a distinction between human rights and fundamental freedoms on the one hand, and those things which were necessary for the development of the full life of the individual." It would take too long if the Committee "tried to define everything necessary to the development of a full life, over and above fundamental human rights and freedoms" (p. 6). E. Heyward, the Australian sponsor, pointed out that many of the rights at issue were already recognized by organizations like the ILO and they were "not merely rights necessary for the enjoyment of a full life by the indi­ vidual. They would fall very short of this" (p. 8). The Second Drafting Session rejected the proposal to include the new rights in the covenant by 2 votes for, 3 against, and 3 abstentions. From the comments made in the debates, I construct this tally: Aus­ tralia and Chile voting for; the U.K., the U.S., and Lebanon voting against; and France, China, and the USSR abstaining. The U.S., the U.K., and Lebanon later also raised ob­ jections to the adoption of Article 22. They gave as reasons that this article draws too much attention to the new rights. But they did not repeat what they said here, namely, that these rights are of second rank and perhaps not even "rights" at all. Since the mo­ tives uncovered here probably played a role in the later objections, I have labeled the U.S. and the U.K. position about the distinction between the old and the new rights as a malignant one, it being their view that the new ones are interlopers in the realm of rights and do not deserve the same status as the older established ones. The case of Lebanon is different, as that delegation was genuinely torn and made comments that can be interpreted either way. The majority of the drafters held a more benign view of the distinction as one that was important, but only because the new rights needed to be nurtured more and promoted as being new to the family of rights. The Twin Birth of Articles 22 and 28

At one point during the discussion on the right to work Malik, the Lebanese delegate to the Third Session, observed that "until now the Commission had discussed and examined the rights of the individual as such; the right to life, freedom of thought, freedom to come and go, to marriage, and so on. Now it was engaged in discussing the rights of the individual as a member of society. It was desirable, therefore, to insert somewhere in the Declaration a statement calling attention to the need for establ ish­ ing the kind of economic and social conditions that would guarantee those rights . . . . He preferred to make no specific references to the State's obligation in respect of mea­ sures to combat unemployment" ( SR . 64jp . 17). As the end of this citation shows, the context of Malik's remarks was the discussion of the obligations of the state in con-

226

Chapter 6

nection with everyone's right to work. He felt that the problem under discussion was a general one and not special to the new economic and social rights, let alone to just the right to work. The chairman appointed a subcommittee "to work out a special article concern­ ing the measures to be taken in order to ensure enjoyment of economic and social rights" (SR.65fp. 11). The subcommittee consisted of representatives from France, Lebanon, the U.K., the USSR, and the U.S. This committee produced the following article: "Everyone has the right to a [good] social and international order in which the rights and freedoms set out in this Declaration can be fully realized" (SR.67jp. 2). (I explain the deletion of "good" below.) The subcommittee unanimously adopted this umbrella article, which does not make explicit reference to the duties of states and does not single out the new rights for special attention. It is the forerunner of Article 28 and I shall refer to it by that designation. An exchange between Chang and Malik on where the implementation role of states was best mentioned, prompted Cassin to con­ fess that Article 28 had been adopted unanimously in the subcommittee. However, he now felt free to share with his colleagues the fact that the French delegation had sub­ mitted this alternate text: "Everyone, as a member of society, has the economic, social and cultural rights enumerated below, whose fulfillment should be made possible in every State separately or by international collaboration" (E/CN.4/120) . He made the point that his delegation's text "was more specific and applied to the economic, social and cultural rights which the Commission was examining at present." He formally submitted this text to the Commission for adoption. Both Articles 28 and 22 being on the table, the delegates engaged in a discussion of the comparative merits of each. In keeping with his delegation's stance that the United Nations Charter itself de­ mands equal treatment of both kinds of rights, G. A. jockel, delegate from Australia, said he would vote for Article 28 "on the condition that that text did not exclude Cas­ sin's text, which he felt was more important and of greater scope" because it specifi­ cally 'mentioned the social, economic, and cultural rights (SR.67jp. 5), Taking scope in the other direction, Malik argued that "the first text [28] covered the second [22] , and therefore made i t redundant" (p. 5). "To make special reference to the economic, social and cultural rights would be to favor them in comparison with other rights and freedoms which was inadmissible" (p. 5). He did admit that the French text cor­ responded "more closely to the task entrusted to the Sub-Committee" because "the Commission had taken a formal decision regarding the inclusion of an article which would deal especially with economic, social and cultural rights" (p. 6). Vilfan, the Yugoslav delegate, wanted to insert "made possible by the State" in the Cassin text (p. 7). Luc Steyaert, the Belgian delegate, wanted both texts because of the generality of the first [28] text and [22] because the social, economic and cultural rights were less well known" (p. 7). At this point it was decided to postpone adoption consideration of both of these proposals until later. Article 22 came up first.

Article 22:

The

Right to Have the New Rights Realiz�d

By 10 votes to 6 the Third Session approved the general idea of a second covering article, with the exact wording yet to be determined (SR. 72jp. 5). Roosevelt, incorpo-

Social Security, Education, and Culture

ZZ7

rating suggestions from other delegations, proposed this wording: "Every person, as a member of society, is entitled to the realization of the economic, social and cultural rights enumerated below, through national effort and international co-operation, in accordance with the organization and resources of each State." 40 After this the dele­ gates discussed the addition of the right to social security at the beginning of the article (see 6.2) and adopted the Cuban amendment on these rights being "indis­ pensable for [one's] dignity and the free development of personality" (see 6.3). They adopted the French text as amended in this way by 12 votes with 5 abstentions (p. 10). There are two ways of interpreting 22. A malignant way makes new rights not as important as civil and political ones. The evidence for this would be the fact that the drafters thought it necessary to qualify these new rights in ways they had not qualified the earlier adopted rights. The phrases "as a member of society" and "in accordance with the organization and resources of each State" can be seen as such qualifiers:n Ac­ cording to a benign reading, these newer rights are just as important as the older civil and political ones. They require special attention precisely because they are new and because they require more material involvement on the part of the state. In short, they are equal, but different. As our brief history of this distinction would lead us to expect, the votes of various delegations reflect both positions. I begin with the (on the whole) benign views of Cassin, who was the first to propose Article 22. In the first Drafting Session he argued that states' commitments regarding social and economic rights "could not be the same as for the fundamental rights of the human being. Most States would agree that the liberty of conscience or the right to live should be safeguarded as soon as possible, but few would be in agreement on de­ tailed undertakings regarding social security, social insurance, full employment, and other subjects." 42 This made these rights unsuitable for inclusion in the Convention, but Cassin was not opposed to their inclusion in the Declaration, for which he did think the time was ripe. "It was plain," he told the Third Session of the Commission, that the Commission should follow the example to be found in all constitutions adopted in re­ cent years, and should treat those rights separately from the rights of the individual. Economic and social rights, in order to be fully realized, required material assistance to be furnished by the State, a practical difference which the Declaration could not ignore. He did not agree with the U.K. representative that the insertion of a covering article to precede the articles on economic and social rights would overemphasize the importance of those rights. The Commis­ sion would merely be following the method which it had used in connection with the rights of the individual. 43 (SR.72jp. 4)

That method was to inscribe in the Declaration the main rights then present in the world's constitutions. And Cassin felt, as Humphrey's survey also told him, that the new rights met that criterion. But since they were different in that they required more material layout on the part of the state, he had proposed Article 22 . Malik, the Lebanese delegate, was opposed to the " preferential treatment" which he said Article 22 gave to the social and economic rights and failed to find anywhere in the beginning of the Declaration an article parallel to that [22] proposed by the French representative. While there was a declaratory statement of the rights and freedoms of human beings there was no statement to the effect that society must be so organized as to guarantee those rights and freedoms to the individual. Consequently, the adop-

ZZ8

Chapter 6

tion of the French proposal would mean that e conomic and social rights, the impor tanc e of which none could deny, would be g iven p re fere nt ial treatment over other rights of equal im­ portance . . . . The French proposition, if adopted, would create a bias in favor of economic and social rights. (72/5)

Cassin responded �hat "the covering text [Article 3) which applied to fundamental human righ ts did not contain a guarantee because rights to life and liberty were unconditional. The realization of economic and social rights, on the other hand, in­ volved material assistance and therefore require d a guarantee. There was no intention to place undue emphasis on such rights; the intention was merely to recognize their importance. It was noteworthy that all States which had rewritten their constitutions during the past thirty years had given special and separate attention to economic and social rights" (p. 5). Cassin defended the special mention in Article 22 -rather than in Article 25 of the right to social security and the other social and economic rights because "the welfare of workers had long since ceased to be a purely national concern; the mass unemployment of 1932 showed that action was needed on an international level. The clause referring to international co-operation in the text of the article would satisfy that necessity" (p. 9). Only someone who is very serious about the new rights would want both the rights and the duties to stretch across borders, so that both govern­ ments and individuals help nationals of other states and refugees. This international dimension of human rights implementation was very much on Cassin's mind when he did his rewrites (see 2.4). Reflecting back on the tenth anniversary of the Decla­ ration, Cassin said in a 1958 lecture that it was because they were "in a certain sense indivisible" from the older civil and political rights that the new social, economic, and cultural ones had been included in the Declaration.'" This is an accurate report of what the m�ority at the time thought and of the rationale for the adoption of Article 22. The majority of the drafters held a benign view of the distinction and , just like Cassin himself, believed that the social, economic and cultural rights required more material involvement and needed attention because they were so new. In all of the drafting segments discussed in the previous three chap­ ters there was no consensus that these new rights are somehow less import ant than the older ones and that their violations are not as serious. While some delegations may have held that view, the votes to include these new rights were strong ones, in most cases very strong. For instance; only the United States voted against the article on work-related rights. This benign reading of . Article 22 is suppor ted by the reactions to a USSR-sponsored al ternat ive text. The USSR delegation was worried that Article 22 might lead to a malignant read­ ing of the Declaration as giving the newer rights a lower, second-class status in the realm of rights. For that reason the USSR delegation proposed a more balanced text. Pavlov said that "it would be incorrect to have a covering article stressing the realiza­ tion of economic and social rights unless the other rights mentioned in the Declara­ tion were covered as well." When he "had voted in favor of [the idea of] a covering article, he thought that it would apply to all rights, though particular emphasis would be placed on the realization of economic, social and cultural rights, which historically had been more recently recognized" (SR.72/p. 8). He then rephrased and proposed

Social Security, Education, and Culture

229

for adoption this earlier Yugoslav text: "The State and society shall undertake all nec­ essary measures, including legislation, for ensuring to every person a real possibility of enjoying all the rights listed in this Declaration. In view of the particular signifi­ cance which social, economic and cultural rights have, as listed in article 23 [22] to 30 [27] , (particularly the right to social security) it is recognized desirable to have them implemented both through material national efforts and through international co­ operation, taking into account the social and economic systems and resources of each State" (p. 9). While they voted 5 to 1, with 9 abstentions, to have the social security clause included here, the Third Session rejected this alternate text.45 Recommending this same text to the Third Committee, Pavlov recalled that the idea of a second covering article had been "to emphasize the importance of the eco­ nomic and social rights stated therein. Those rights had not appeared in any of the previous declarations of the rights of man; their inclusion was a result of the social progress achieved in the nineteenth and twentieth centuries" (p. 498). He received the support of other Communist delegations. Jiri Nosek of Czechoslovakia thought that the standard objections to the duties of states were "less justified" in the case of the new rights than they had been when raised in connection with the earlier adop­ tions. ·� purely legal and formal instrument would suffice to insure implementation of the rights proclaimed in the preceding articles. But in order to render the right to social security effective it had to have a proper basis - an economic basis without which there could be no social security properly so called" (p. 505). Demtchenko of the UKSSR, also emphasized the importance of Article 22 as "a link between" the earlier section on "political rights" and the social, economic, and cultural rights that followed it. Both delegations spoke in favor of the USSR-sponsored text, but these comments can just as well be read as support for Article 22, if read in a benign way. There are two clear differences between the USSR-sponsored text and the final product. Our Article 22 is more indirect about the duties of states and it makes its realization point exclusively in terms of the new rights, ignoring that the other rights also need to be implemented. Each of these points was the focus of its own kind of criticism. The malignant objectors did not like the explicit references to the duties of states, for they did not want to be held too clearly to the correlative duties of supply­ ing material assistance. The benign objectors gave as a reason for not supporting the USSR text the fact that they liked the narrower focus of Article 22 better. Cassin said that the presence of Article 22 was an indication that the social rights "were different in character from any rights outlined in earlier declarations of man. They all had in common the fact that national effort and international cooperation were needed for their realization" (p. 499). I take that as a benign comment. Then he added the malignant sounding comment that Article 22 "was not intended as a state­ ment of any right but as an umbrella article" (p. 499). This statement conflicts with the very language of the article (which says that "everyone . is entitled to realization" of the new rights) and he added it probably to win votes for his proposal. The Latin American delegations were very sympathetic to the Soviet position, for they shared the view that if any weighing of the rights was to be done, the new rights were possibly more important because they stood in need of further codifica­ tion. However, this view led them to support Article 22 instead of the Russian text. Perez Cisneros, the Cuban representative, said that "a statement of social rights was .

.

one of the most important points in the Declaration; it should not be weak or vague" (p. 498). His delegation was "firmly resolved to impress the need for giving priority to the ar ticles guaranteeing man's so cial rights upon the members of the Sub-Committee to be set up to arrange the ar ticles" (p. 509). Santa Cruz of Chile found the USSR amendment "too long ," but he had "no quarrel with the ideas it contained ; in particu­ lar, the guarantee of economic, social and cultural rights by the State and so ciety. As thos e rights differed from all other rights in that they required positive action by the State before they could be enjoyed, it was quite proper to impose a definite obligation on the State in that regard" (p. 500). Watt, the Australian delegate , "emphasized the special importance of the articles concerning social, economic and cultural rights. . . . [The older] rights had been rec­ ognized in theory for a l ong time . . . and everybody in the world would expect to find [them] embodied in the Declaration. That was why it seemed justifiable to in­ clude an introductory article before the proclamation of those [newer] rights . The article placed the problem in its true light by emphasizi ng the. need for i nternational co - operation as well as for national action in accordance with Article 56 of the U.N. Charter" (p. 508). In the same vein, Count Carton de Wi art, the Belgian delegate, ob­ served "that all delegates were agreed in desiring to preserve the introductory nature of article 20 [22] . That article introduced new ideas, while the preceding articles re­ vived ideas as expressed in the Declaration of the Rights of Man and of Citizen of 1789 and in the American Bill of Rights" (p. 511). Basically, only the United States delegation used the distinction between old and new rights in a malignant way. Roosevelt explained that Article 22 was a "compro­ mise between views of certain governments which were anxious that the State should give special [ben i gn] recognition to the economic, social and cultural rights of the individual and the view of Governments, such as the U. S. Government, which con­ sidered that the [malignant] obligation of the State shou ld not be sp ecified " (p. 501). She objected to the "obligation devolving qn the State" in the USSR proposal and on the manner in which it "attached special importance to economic, social and cultural rights." The Declaration, she said, "should enunciate the rights of man and not the obligations of States. Furthermore, economic, social and cultural rights, though im­ portant, were not more i mpor tant than political rights" (p. 501). She stressed that to her dele gation the phrases "through national effort and international co-operation" and "in accordance with the organization and resources of each State" were the key ones of the article. Mter thi s exchange of views the Soviet text was again rejected. This time by 27 votes to 8 with 8 abstentions (p. 512), leaving in place the present Article 22. And I s ubmi t that the reasons given for the preference of this text over the proposed Soviet one blocks any interpretation of the Declaration that assigns a lower ranking to the social, economic, and cultural rights discussed in Chapters 4, 5, and 6. Article

28: The Right to a World Ordered by Human Rights

We have just seen that Article 22 was adopted with wide margins of approval . The question now is whether Article 28 is nec essary in addition to this. At the time of its

Social Security, Bducatlon, and Culture

ZJ1

adoption in the Third Session Article 28 read as follows: "Everyone has the right to a good social and international order in which the rights and freedoms set forth in this Declaration can be fully realized" (SR.78jp. 9). This was the article originally adopted as a general covering article in the subcommittee charged with drafting it. As we just saw it got eclipsed by the French proposal of Article 22. Malik, who had been the original sponsor of Article 28, admitted that the ideas of the article were "to some extent expressed in the Preamble [Article 22] that had just been adopted. He never­ theless felt that the Declaration should clearly set forth the right of mankind to have a United Nations, a world organization, as well as a social order, in which the rights and freedoms could be realized." 4& At the level of the Third Committee two deletions were proposed. The Soviet Union proposed that the word "good" be deleted and the Egyptian delegation pro­ posed the deletion of the entire article (A/C.3/303/Rev.l). The second proposal re­ ceived little discussion. Because they doubted that it added anything substantial to the Declaration, the delegations from Ecuador, China, and Saudi Arabia spoke in favor of deleting the article (pp. 639 and 641). Most of the momentum for the article carne from the subcommittee that had adopted it in the Third Session where it had been eclipsed by the text of Article 22. The Soviet amendment to delete the adjective "good" from the article was a carryover from the Third Session. Repeating points he had made there, Pavlov, the USSR delegate, said that the word "good" should be deleted "because even should all the rights and freedoms set out in the declaration be fully realized, there was still no ground to conclude that the resulting social and international order would necessarily be good" (p. 638). Pavlov objected to the use of a "formalized concept of equality." It was, he said, "a far cry from that equality- the equality of the rich and the poor, of capital and labour- to real social justice and a really good social order" (p. 638). "As long as society was divided into exploiters and the exploited, as long as there was pri­ vate ownership of the means of production, the social order could not possibly be a good one," even with all the declared rights in place and honored (p. 638). Malik responded with the observation that the expression "good social and inter­ national order" did not "apply to any particular system, whether capitalist or socialist" (p. 639). Hood of Australia also made that point. "In his opinion [the article without the word 'good'] did not say more than that the rights set forth in the Declaration should be achieved" (p. 640). Several delegations made a point of saying that they agreed with the proposed deletions for textual reasons, but not for the rationale given by Pavlov. Ralph Maybank, a Canadian delegate, also spoke for the delegations from Nor­ way, the United Kingdom, and Peru when he said that "should the rights set forth in the Declaration be achieved the social and international order would be good, whether it carne within the framework of capitalism, communism, feudalism, or any other system" (p. 640). Roosevelt, the U.S. delegate, also had no objections to the deletion: ·�ny order which permitted individuals to achieve the rights and freedoms set out in the Declaration would obviously be a good one and the adoption of the USSR amendment would not mean the endorsement of any particular political social system" (p. 640). On the contrary, the presence of the word "good" invited unneces-

2JZ

Chapter 6

sary speculation as to what "good" might mean in addition to the realization of the human rights. Kayala of Syria agreed that the term "good" was not needed "because any such social and international order would be a good one" (p. 641). The word "good" was deleted by 34 votes to 2, with 2 abstentions. The Third Com­ mittee adopted the whole article by 25 votes to 3, with 8 abstentions (642). Earlier the Third Session had decided that since the terminology of rights occurred twice in the article, the opening phrase "has a right" should be replaced with "is entitled." That Session had adopted the article by 6 votes to 3, with 6 abstentions (SR.78jp. 11). 6.5 The Organic Unity of the Document

This discussion about the relative importance of the old versus the new rights invites us to broaden our investigation and ask how the drafters viewed the interrelationship of all the rights and articles in the Declaration generally. I answer this question in terms of the principle of the organic unity of the text: the drafters wanted the readers of the Declaration to interpret each article in light of all the others. Most of them be­ lieved that the exact place of an article was not crucial to its meaning since it needed to be interpreted in the context of the whole anyway. This organic character of the text applies both to how it grew to be what it now is, as well as to a deeper intercon­ nectedness of all the articles. I begin with a report on the recommendations of the subcommittee that was charged "to examine the totality of the declaration of human rights, i.e., the 29 articles and the preamble, adopted by the Third Committee, solely from the standpoint of arrangement, consistency, uniformity and style and to submit proposals thereon to the Third Committee" (A/C.3f400/Rev.l). Considering the size of the document and the labors that had gone into it, this subcommittee recommended almost no m�or changes. The only recommendation that involved the order of the articles was that the article on leisure time and paid vacations (Article 24) be moved from its place right after the right to an education (Article 26) to a place right after the article on work-related rights (Article 23). It does indeed fit better in this new spot (see 5.5). That there were no further recommenda­ tions to change the order of the articles means that the drafters were satisfied with the order as it had grown to be over two years of work (p. 2). The Cuban delegation was an important exception to this consensus. It was not satisfied with the order and wanted to shape the Declaration more closely on the model of the Bogota Declaration adopted that April by· the nations of Latin America. P�rez Cisneros, the Cuban delegate, believed that "it was necessary to assign a promi­ nent position to those rights which deserved the greatest attention on the part of the reader" (p. 874). On that supposition he argued that the present arrangement "did not take into proper account (1) the right to protection of the family; (2) the right to freedom of thought, conscience and religion; (3) social rights (articles 20 [22] to 2 5 [27]" (A/C.3/400/Rev.l). As it stands in the final product Article 16 (on marriage and the family) is in an awkward position between the right to a nationality (Article 15) and the right to own property (Article 17). Moving it three spaces forward would have made the rights to "found a family" and to have that family be protected "by society and the State" the last one in the set of legal human rights, which is where it used to be when it was

Social Security, Educ•tlon, •nd Culture

ZJJ

still connected to Ar ticle 6 (on legal p ers onality) . Cassin, who defe nded the general order as received, did agree "with the delegates of Cuba, Lebanon and Belgium that the articles dealing with the family might be badly placed" (p. 875) . Perez Cisneros accepted the Lebanese idea of moving what was then Article 14 (now 16) to a place right after Article 10 (now 12), which deals with the legal human right to be protected against "arbitrary interference with [one's] privacy, family, home or corresp ondence " and against attacks upon one's honor and reputation. While family rights and property rights are historically intertwined, we saw that from the point of human rights the real connection is only between family rights and the righ't to property of a personal k ind, that is, the kind of material possessions men­ tioned in connection with the privacy rights in Article 12 and included within the word "alone" in Article 17 (5.2 and 5.3). There is no real connection between the right to "found a family" and rights to nonp ersonal property such as ownership of profit-seek­ ing enterprises (alone or in association with others). But moving Article 16 forward to the end of the list on legal human rights would have isolated Article 17. And that in turn would have made Article 17 a prime candidate for being moved into the section of social, economic, and cultural rights, which is where the article belongs (see Chap­ ter 5). In contrast to the ei ghteen th c en tury view, thes e twentieth c entury drafters no longer looked upon property r igh ts as closely re lated to citizenship. They did not see any connection b etween the ownership of prop erty and Article 21's right to particiM pate in the government of one's cou ntry. So they might as well have made Article 17 part of the list of social, economic, and cultural rights, which is how I have treated it. As it happ ened, the Cuban proposal to move Article 16 forward was never acted upon. It got lost in a much larger debate about the proper place of the social, ecoM nomic, and cu ltural rights in the Declaration. As to the place of religion in the Declaration, there could not be "any doubt," said the Cuban delegate, "but that an even more promi nent place [than that of the social and economic ones] should be assigned to freedom of conscience and religion" (p. 874). He therefore proposed that Article 18 (then 16, on the freedom of con­ -

-

science and religion) be placed right after Article 3 (on life, liberty, and security of person). There was quite a bit of support for this idea, but it became quickly apparent that the move could not be made without some other changes which almost none of the drafters were willing to contemplate,47 The main problem with the p roposal was that most delegations viewed the rights of Article 18 (on th ought conscience, and religion) as closely tied to thos e of Article 19 (on opinion and expression) , 20 (on assembly and association), and 21 (on par­ ticip ation in government). Watt of Australia liked the Cuban proposal, but felt that what are now Articles 18 and 19 "had a natural affinity" and that either both should be moved or neither (p. 876). While historically the freedom to exercise one's religion was one of the first p ubl ic liberties to develop, by the late 1940s that kind of toleration had expanded into a broad range of rights to freedom of thought, express ion, and as­ sembly generally and from there into the idea of universal suffrage and the right to participation of government The Cuban prop osal was unworkable because very few of the drafters were willing to break the natural connection and p rogression that exists between the rights declared in Articles 18 th rough 21. In order to decide whether any move of this kind should be made, the chairman called for a vote on whether these ,

.

2.14

Chapter 6

articles should be treated as a u nit. If they did not form a u nit some of them could be moved, but if the y did, the consensus was that they would stay where they were. The Third Committee vo ted by 16 votes to 7, with 13 absten tions, that these righ ts form a unit and therefore decided not to split them up, as had been propose d (p. 879). We have seen th at the Cuban delegation was of the opinion that the order of the articles as received "did not take proper account" of certain rights . "In particular," said Perez Cisneros, "social rights, which were the achievement of th e twentieth cen­ tury, should in a twentieth century declaration pre c ede legal r igh ts, acquired long ago and repeated in a number of similar documents." The social, economic, and cultural rights should, he said, receive a "place of honour" (p. 8 74). Dur ing the first Cuban attempt to remedy this problem, its proposal to move the last cl ause of the current Article 22 into Article 3, Chang, the Chinese delegate, made some revealing com­ ments about how he viewed the structure of the Declaration. Chang objected to moving Article 22 in to 3 because , he said, ·�rticles 1, 2 and 3 expressed the three main ideas of eighteen th century philosophy; ar ticle 1 expressed the idea of fraternity, article 2 th at of equality, and article 3 that of lib er ty" (p. 154). The idea of liber ty was then further appli ed first to the individual, then to the fami ly and lastly to society. Mter that, "article 20 [22] , like artic le 3, exp ressed a general idea which was explained and developed in the following ar ticles . " He felt that the join t amendment to merge 22 into 3 was "out of joint with that structure" (p. 154). Though not for all the same reasons, the delegates from France, the U.S., Engl and , New Zealand , the Netherlands, and Belgium were simil arly oppose d to an expansion of Article 3 in the way proposed .48 The "struc ture" that stood in the way of this merger was one of a progre ss ive and widening circle of liberty. However, the Latin American delegations had a broader concept of liber ty and understood it along the lines of President Roosevelt's four freedoms, which was the reason they wanted to broaden Ar ticle 3. Sain t-Lot, the Haitian delegate, felt that "the Declaration should take into account new elements which had b een brought into the traditional concept of human rights ." One way to do that would be to incorpo ­ rate into Article 3 President Roosevelt's four freedoms. But Article 3 "contained no mention of the freedom from want or of freedom from fear" (p. 172). His colleague from Cuba, Perez Cisneros, also urged the delegates to keep in mind that "man was no longer living in the eighteenth century. The twentieth century had witnessed the development of a new concept of liberty which it was impor tant to clarify in the dec­ laration" (p. 1 6 4). He rec alled the fact that at the San Francisco Conference, when the UN Charter was written, "there had been agreement among the representatives that the ad option of the words 'fundamental freedoms' was a tribute to President Ro osevelt and his proclamation of the four freedoms." Perez believed that the joint amendment applied to those four fundamental freedoms and that all four of them "should be in­ scribe d on the frontispiece " of the Declaration (p. 164). Azkoul, the Lebanese representative who much preferred Article 28 over 22, di­ rec tly answered Chang's point about the si gnificance of Article 3 as the basis for what followed. He argued that "article 3 could be conceived as the basi s , not only of the nine articles which followed, but of all the articles of th e declaration. Article 3 was fundamental and therefore should be complete . It dealt with human freedom. Since the eigh teenth century, however, the idea of freedom had become much broader. The

Social Security, Education, and Culture

zas

theoretical idea of liberty had evolved into the guarantee of certain rights, and, in particular, of social rights. In modern times the fundamental right was the right of the individual to fully develop his personality, which implied the right to all the factors essential to that development" (p. 168) . Chang also saw the desirability of bringing the social and economic rights forward; "he would insist, however, that the new text should be placed in a separate paragraph [of Article 3] in order to bring out its impor­ tance" (p. 177). He "would vote against the joint amendment because he considered it incorrect to express two sets of ideas in a single paragraph" (p. 177 ). I already reported in the preceding section's discussion of this Cuban attempt that Chang never did formally propose the merger of Article 20 into 3 as a separate paragraph, as he had said he would do. His ambivalence about the joint amendment explains why the vote was so close. It was rejected with a vote of 21 to 20, with 12 abstentions (p. 188). With the exception of the Lebanese vote, the 20 votes for the ex­ pansion were all from Latin American countries and from the Communist members. Given Chang's reasons for voting against and given the Egyptian reason for abstain­ ing- because it preferred a slightly different wording-one might argue that a ma­ jority of the delegations did support the idea of referring to the social, economic, and cultural rights in Article 3.49 These explanations remove any lingering doubt about the drafters' belief in the fundamental unity of all human rights. The adoption of the joint amendment would have removed even the appearance to the contrary. Because the amendment failed to carry, the reader receives a vague hint of a text that is split into two sets of rights, with Article 22 as the point of transition. But the travaux do not support this interpretation. The majority of the drafters did not believe that there are two kinds of human rights. Their principle of the organic unity of the text was grounded in the recognition that the rationales for the members in each alleged set constantly feed on each other and cannot be neatly separated out. The Cuban proposal in the Sub-Committee on Order and Style was a different version of the proposal just discussed. But, since this committee was allowed by its mandate to make only style and not substantive changes, it could not, as had been done in the attempt to change Article 3, rewrite any article. The Cuban delegation therefore proposed that the whole set of "articles 20 [22] to 25 [27] inclusive, deal­ ing with social righ ts, should come immediately after article 4(a) [5]" (p. 874). That would place the social and economic rights after the articles on physical security and just before the group of legal rights. In favor were the delegates from Belgium, Cuba, Ecuador, Poland, and the USSR. Australia, China, France, the U.K., and the U.S. voted against. The Lebanese delegation was the only Sub-Commission member to abstain in this vote. It was indeed in a difficult position, for unlike the five delegations that voted against the move, it had earlier on joined in the attempt to rewrite Article 3 so that it would include everyone's right to the full development of his personality. Evidently, it felt that the present Cuban proposal went too far and came too late. Both the Leban­ ese abstention and the negative U.S. vote may have been influenced by the fact that these delegations were adherents of the principle of organic unity. Chang repeated the points he had made when it had been proposed to rewrite Article 3. He believed that the "order in which the articles appeared in the declara­ tion had stood the test of time; the document possessed an organic unity which should

216

Chapter 6

not be tampered with lightly, at the very end of the Committee's work" (p. 874). There should be no "no break," he said, "in the organic progression from articles on the right to life and the right to liberty to the [last] articles on the protection and enj oy ment of those rights" (p. 877). Carton de Wiar t of Belgium agreed with Chang that "the order was a logical one . . . . Recognizing that the declaration could not, in the nature of things be finally perfect, he was prepared to agree with the Chinese repre ­ . sentative's defense of the Sub-Committee's arrangement" (pp . 874-875). Cassin also laid out what he saw as the logical structure of the Declaration: "The two initial articles stated general principles within the framework of which individual rights were defined. There was a regular progression from individual rights to social rights . Between those two categories came, first a group of articles dealing with physi­ cal protection of the individual, then a group dealing with the relation of man to his fellows and to things-family, residence , frontiers, nationality, and finally property­ then came articles dealing with the great public freedoms, inc luding freedom of reli­ gion, and their external manifestations in such forms as freedom of expression ; and last ar ticles 20 [22] to 26 [27] provided guarantees of social security " (p. 875). In his later writings Cassin referred to this as the "four columns" structure of the Decla­ ration ,B 0 We have no evidence , however, that this view was widely shared by his col­ leagues. For ins tance, his second group is an uneasy mixture where neither the family nor property are well placed and where legal rights are not even given a separate des­ ignation .& • The idea of a logical structure suggests that certain rights have a logical priority over those that follow, but it was precisely that point ofview ( with the possible exception of the right to life itself) which the m� ority of the delegates did not accept. All along the United States had been a proponent of the view that there is no in­ herent ranking of the rights in the Declaration in terms of their importance. There are sets of articles dealing with certain common themes, such as legal rights and work­ related rights, but (with the possible exception of Ar ticle 3) there is no "logical chain" that demands that one set comes before or is a prerequisite for another set. The sets and the individual articles all implicate each other. We have seen numerous instances where Artic les 2 (on nondiscrimination) and 29 (on duties) were used to interpret one of the other articles in the Declaration. In the same vein Romulo of the Philippines suggested (in the Second Session) that Bienenfeld, the representative of the World jewish Congress , use what is now Article 30 to interpret the concept of law used in Article 9 (on arbitrary arrest) (SR . 36jp . 3). This exchange led Malik of Lebanon to draw his colleagues' attention to a United States proposal which read: "In construing the Articles of this Bill of Rights, the several articles shall be regarded in their relation to each other" (p. 5 ) , Nothing was done about this proposal at that moment. However, several me eti ngs later Malik formally introduced the same U.S. propo · sition as an additional article to be included in the Declaration. It was not discuss e d , except that Klekovkin of the UKSSR obj ected to it on the grounds that the Decla­ ration was becom ing too long for "ordin ar y people to understan d it." The delegates should concentrate their efforts on producing "a clear and simple Declaration" in­ stead, he said (SR.41jp. 7). The U. S.-Lebanese proposal was rejected by a close 7 votes to 7, with 2 abstentions. A year later, at the time of the Third Comm ittee discussions on the order of the articles, these two delegations were still of the same opinion , which is one reason ­

Social Security, Education, and Culture

Z37

they did not support the Cuban proposal to reshuffle the deck. Roosevelt, the U.S. delegate, "maintained that all articles in the declaration were of equal importance re­ gardless of their position. The important point was that the rights should be grouped in such a way that they would be intelligible to the person who reads the document. She therefore regretted that the Cuban representative had proposed a change in the order. The declaration should make its impact as a whole; there was no point in at­ tempting to give priority to one or another article" (p. 876). This seems to have been the majority consensus. And what is true of the Sub-Committee - that they "had been unable to agree which rights were fundamental"-was also true of the Third Commit­ tee as a whole (p. 873). Roosevelt's remarks and the votes on the Cuban proposals point in this direction. This means that no consensus existed on there being any kind of fundamen­ tal structure to the Declaration. The document had grown organically and the most the drafters could agree on was that the end product contained certain loose sets of articles. As to the best order within each set and between sets no consensus existed. I shall now give some examples of the kind of organic unity I have in mind. Since the presence of the social, economic, and cultural rights occasioned this probe into the structure of the document, many of my examples will come from the previous three chapters. As to property, that right is stated in Article 17 ( that is, before Article 22), and by its location is part of the older, civil and political rights. But as noted previously the article would have been much better placed with the newer economic rights, all of which were also heavily influenced by the Latin American socialist tradition. Going in the other direction, I noted in sections 4.2 and 4.5 that there is much overlap between the provisions of Article 12 (on privacy) and the incorporation of the right to personal property in the word "alone" of Article 17. That connection would place either Article 12 later or Article 17 earlier. In Chapter 5 I linked the early (Article 4) prohibition against slavery in all of its forms to the later (Article 23) right to work and to free choice of employment. The (new) right to form and join trade unions (discussed in 5.3) was found to have a clear connection with the (old) right to freedom of association in Article 20, especially its second paragraph which its sponsors (but not its supporters) meant as a way to bar closed shop policies. Article 23's right to equal pay for equal work without any dis­ crimination is closely connected to Article 2's prohibition of discrimination on the basis of sex; hence, I discussed its second paragraph in a different place (Chapter 3.5) from the rest of the work-related rights (Chapter 5). The rights to enough remunera­ tion to provide for a life of dignity for oneself and one's family clearly link Article 23's third paragraph to other places in the Declaration where the family is mentioned (Articles 12, 16, and 25). We also uncovered linkages in our exegeses of Articles 25, 26, and 27. The draft­ ers augmented the presumably minimal protection of the right to life in Article 3 with the positive rights to food, clothing, housing, and medical care in Article 25. The same point must be made about the social security benefits listed in Article 25. These were seen as real rights, which means that if-for reasons beyond one's control- one becomes unemployed, sick, or widowed, or bereft of old age benefits, then it is incum­ bent upon the state to see to it that the substance of these things is provided. Be-

218

Ch•pter 6

cause the connection between these rights and the right to life and liberty in Article 3 is so close, the Cuban delegation insisted that the right to the full development of one's personality should be moved to Article 3. That amendment failed by the one vote cast by P. C. Chang of China who wanted to see it done by way of a separate para­ graph. In other words, the maJority of the drafters saw these connections and never doubted the organic unity of all the articles. The call for the protection of mother­ hood and childhood in Article 25, is, as I will explain in the next chapter, very closely related to Article 1 6's third paragraph, which is where this provision used to be. Similar connections are present in the articles on education and participation in the cultural life of the community. It is, for instance, impossible to exercise the rights to freedom of (informed) speech and participation in government without the nuts and bolts of the first paragraph of Article 26 (on education). If slavery in all its forms is forbidden, as it is in Article 4, then freedom from enslavement to an ideology not of one's own choosing is a human right and the provisions of Article 26's second para­ graph readily follow (see 6.3). Similarly, the "prior right" of parents to have a say over the kind of education their children are to receive is intimately bound up with Article 16's demand that the family be protected by the state and society. And this protection naturally extends to participation in culture, which is connected to Article 2's prohi­ bition of discrimination on the basis of race, color, and national origin. The right to participation in the benefits of science is connected to the right to life (Article 3) and medical care (Article 25). Last, as I noted earlier (6.3), some delegations felt that Article 27's (new) right to the "moral and material interests" in one's creative work really belonged in Article 17 (on property), which is placed with the old rights. Many of these connections and linkages depend on the principle that if one has a right to X, and Y is necessary to get X, then one also has a right to Y. Often an old right like freedom of association is needed to implement a new right such as that of form­ ing a trade union, or the old need for physical security is a necessary condition for enjoying the new right to go on a paid vacation. But just as often a new right is needed to realize an old one, as when the new right to an education is essential to the imple­ mentation of the old right to participation in government. In the same way the new right to work is intimately connected with the old right "to found a family." And so on. The drafters meant for us to interpret each artiqe in the Declaration in light of all the others, but especially in light of other articles that touch on the same topic. In short, the organic unity of the document reflects on the part of the drafters a belief in the fundamental unity of all human rights.

Chapter 7 Duties and Communities

At the start of the Third Committee proceedings the delegates decided not to make reference to the duties states have to implement the rights proclaimed in the Decla­ ration. By 47 votes to none, with 1 abstention, they adopted the following Egyptian resolution: "The Third Committee decides that the declaration of human rights shall be limited to the formulation of principles relating to human rights which presuppose the existence of corresponding duties on the part of States and defers the formula­ tion of principles relating to the duties of States for incorporation to an appropriate instrument" ( Third, p. 81). The appropriate instruments that followed were the two international covenants on human rights, one on civil and political rights and one on social, economic, and cultural rights, both of which came into force in 1977. The drafters made two exceptions to this policy of not mentioning the state. In Article 22 they call on states to cooperate in the creation of a world order that will make the enjoyment of the social, economic, and cultural rights a reality (see 6.4). And in Article 16 they call on the state to protect the family (see 7.3). Other than that the Declaration is silent on the duties states have toward individuals. But by itself this decision does not explain the absence of references in the Dec­ laration of the duties individuals have to the states in which they reside. Since Article 29 deals with all sorts of duties one might have expected such a reference here. Yet, the drafters held back and refused to mention the state or the "democratic state" and instead settled for what to them was the far less threatening phrase "democratic society." This kept the state out and pulled the community into the range of an indi­ vidual's duties. But still, of the Declaration's thirty articles, only one addresses any kind of duties. This minimalist treatment of duties bothered the nations of Latin America and they sought to do something about it when the draft document came before the Third Committee. As part of his overall aim to have the Universal Declaration be modeled after the Bogota Declaration, which did have in it a separate chapter dealing with duties, Guy Perez Cisneros, the Cuban delegate, wondered "whether a decision to accept the draft declaration prepared by the Commission on Human Rights as the sole basis for dis­ cussion would preclude the possibility of adding a section concerning duties, which he considered highly desirable" (77). The chairman explained that "the point raised by the Cuban representative would be covered by a later part of the Egyptian pro­ posal, not yet under consideration" (77). This is a reference to another Egyptian reso­ lution which stated: "The Third Committee decides that the declaration of human rights shall deal both with human rights and with duties corresponding thereto"

Z40

·

Chllpter 7

(A/C.3/222). In answer to Perez Cisneros's question Bahgat Badawi Bey, an Egyptian representative, remarked that "any delegation was perfectly entitled to submit appro­ priate proposals when the matter was being discussed article by article" (p. 81). Hernan Santa Cruz, the delegate from Chile, saw that there were two schools of thought on the issue. "The countries of Latin America wanted the declaration to include a list of the duties of the individual; on the other hand, some members, among them professor Cassin, felt that the reference in article 27 [ 29 ] of the draft was adequate" (p. 85). Roosevelt, the U.S. delegate, pointed out that the Commission of Human Rights "had come to the conclusion that it was preferable to list the rights only, while making an explicit reference to the duties of the individual to society. Article 27 [29] dealt with that matter" (p. 85). Cassin, the French delegate, pointed out that the "the question of duties covered an extremely large field, since it included not only duties to the State, but also the individual duties to all the social groups of which he was a part. The [Third Commission] proposal under discussion did mention the duties of the individual explicitly in article 27 [29] . If the Committee were to fol­ low the proposal of the Egyptian representative, however, it would become necessary to draft a declaration of duties corresponding to the declaration of rights. It was obvi­ ously impossible to complete such a task during the current session" (86). Christopher Mayhew of the U.K. also "did not think it would be necessary to follow the precedent established at Bogota and include a list of human duties" (p. 65). The Chairman pointed out that even if this Egyptian call for a list of duties was rejected, delegates could still bring amendments to each article to the floor for con­ sideration. All such a rejection would mean was that the Third Committee would make "no decision of principle concerning duties of the individual before starting to exam­ ine the draft" (p. 86). Henry Carton de Wiart, the Belgian delegate, thought Article 29 (then 27) was "well-worded, for it did not mention exclusively the obligations of the individual to the State. Indeed, man had duties to his family, to his neighbor, and to himself" (p. 87). In spite of these hesitations, P�rez Cisneros reiterated his desire that the "dec­ laration should include a list of obligations of the individual; since his rights could exist only in correlation with his duties. The declaration -¥tould not convey the im­ pression that it was fostering anarchic tendencies" (p. 86), Chang, the delegate from China, was one of the few non-Latin delegates to support this call for a list of duties. He felt that "the aim of the United Nations was not to ensure the selfish gains of the individual but to try and increase man's moral stature. It was [therefore] a necessity to proclaim the duties of the individual, for it was a consciousness of his duties which en­ able d man to reach a high moral standard" (p. 87), "The noble principles recalled by the Chinese representative" gave P�rez Cisneros hope and he agreed to "temporarily withdraw" his proposal, for which he was thanked by the chairman (p. 89), These opening Third Committee discussions show that the absence of references to the state was in no way meant by the drafters to cut people off from their respec­ tive communities of birth and growth. They also show that the majority of the drafters were satisfied that Article 29 was a sufficiently comprehensive statement on the duties a person has to the various communities of which he or she is a part. There simply was not enough time at the end to expand upon Article 29. All that could be done in the Third Committee was to edit it. I report on this process in the first section of this

Duties and Communities

24 1

chapter. Mter that I analyze the rights and duties connected with the protection of the family and of children, whether born in or out of wedlock. Next in the line of nur­ turing communities we usually find a person's religious or educational attachments. I discuss these rights and correlative duties in section 3. In the fourth and final section I explain the greatest defect of the Declaration, which is the omission of a separate article on the rights of members of minority religious, educational, and especially of ethnic or cultural minority groups. 7 . I The Duties and Communities of Article 29

For convenience I have divided the discussion into five sections dealing with somewhat different sets of duties and communities (these do overlap, but I think this overlap is less intrusive than an unstructured discussion). These five sets spread themselves out in concentric circles of communities from the individual and his or her immediate community of birth and growth in Article 29's first paragraph all the way to the world community organized on the basis of respect for human rights in its third, with nu­ merous intermediate groups between these two end points. Duties to Primary Communities of Birth and Growth

The first paragraph of Article 29 has clear roots in both the Humphrey and Cassin texts. The duties to the community go back to the original Humphrey text and the correlative right to the full and free development of one's personality goes back to the Cassin revision of that Humphrey text. These two are connected. As Fernand De­ housse, the Belgian delegate, told the Third Committee, Article 29's first paragraph "quite properly established a sort of contract between the individual and the commu­ nity, involving a fair exchange of benefits" (p. 650). From everyone's right to the free and full development of his or her personality flowed a host of duties on the part of society and of the state to help make that happen (see 6.3). It involved most of the social, economic, and cultural rights, all of which were matched by duties on the part of members of one's community of birth and growth. These duties ranged from the need to provide individuals with food, clothing, housing, health care, education, a job, protection against unemployment, good conditions for work, social security benefits, and participation in culture and the government of one's country. The receipt of these and many other benefits embedded in all the other rights stipulated in the Declara­ tion lies at the foundation of the duties spelled out in Article 29. They are all linked together in a mutuality of reciprocal rights and duties on numerous levels. Article 29 outlines only the bare framework of this system. Humphrey's first article was quite different from the final text: 1 : Every one owes a duty to his State and to the (international society) United Nations. He must accept his just share of responsibility for the performance of such social duties and his share of such common sacrifices as may contribute to the common good (AC.l/3). ARTI CLE

Humphrey skipped the intermediate communities and went straight from the indi­ vidual to the state and the international community. Another important difference is

242

Ch11pter 7

that his text stated that everyone owes a duty to his state. Humphrey could or should have known that this reference to the state would probably create problems, for in the First Session of the Commission the delegates had engaged in a "debate" on the rela­ tionship between the individual and the state or society. That discussion had been a confusing one because the delegates had used the words "state" and "society" inter­ changeably. The draft submitted by the American Federation of Labor had stated that "The State has no good other than the good of its individual members, present and prospec­ tive - its supreme test is the way in which it provides for the full and free development of each individual" (E/CN.4JW.8jp. 3). The individualism of this passage caught the attention of Vladislav Ribnikar, the Yugoslavian representative. While from the Com­ munist perspective there was not a great deal of difference between the state and the society or larger community, for many of the non-Communist ones this was a dis­ tinction to be watched carefully. Ribnikar argued that "new economic conditions in the 20th Century had given birth to a collective Spirit, a consciousness of solidarity. Personal freedom could only be attained through perfect harmony between the indi­ vidual and the community. The social ideal lay in the interests of society and of the indi­ vidual being identical" (SR.8jp. 4). Charles Malik, the representative from Lebanon, helped focus the issue.' He ob­ served that "today men had no need for protection against kings or dictators, but rather against a new form of tyranny of the State over the individual whom it was the duty of the Commission to protect" (SR.9jp. 3). A few meetings later he followed this up with a set of principles which he "urged the Commission to adopt , . . [because they] were in danger of being repudiated" (SR.1 4jp. 3). His first principle was that "the human person is more important than the racial, national, or other groups to which he may belong," and his last one was that "the social group to which the indi­ vidual belongs may like the human person himself be wrong or right; the person alone is the judge" (p. 3). In these responses Malik places the individual first over against the modern state and then also over against the community of his birth and gro"ith. How­ ever, we know from Malik's record that his real concern was with the protection of the individual against possible aggression by the modern state. The Lebanese delegation was one of the strongest defenders of an article protecting the rights of members of minority groups (see 7.4). In a speech to the Second Drafting Session Malik said: The world was faced with a tendency to "statism," or the determination by the state of all re­ l ations and ideas , thus supplanting all other sources of convictions . The state Insisted on the individual's obligations and duties to it. This too was a grave danger, for man was not the slave of the state, and did not exist to serve the state only. This applied also to the relative position of the individual and other groups to which he belonged. There were innumerable other intermediate loyalties which the individual must respect, such as those towards his family, his profession, his friends, and also towards his philosophical laws. The state could not be the exclusive arbiter of truth and beauty. Real freedom sprang from the loyalty of the individual not to the state but to these intermediate forms. These must find their place in the general social picture. (SR.21fp. 6)

This citation shows that we cannot take Malik's principle that an individual can stand in judgment over his or her own community as an anticommunitarian observation. It

Duties and Communities

Z4.J

also shows that his real interest was in the protection of the individual against abuses by the modern state. He had told the First Session of the Commission that "the human person had not been created for the sake of the State, but that the State existed rather for the sake of the human person" (SR.l4jp. 6). Therefore, it comes as no surprise that when Humphrey submitted his text to the First Drafting Session Malik was one of the first delegates to raise objections. He was very critical of Humphrey's opening line: "Everyone owes a duty to his State . . . " and immediately "expressed the opinion that it was odd that such limitations should be placed at the very beginning of a Bill and expressed the opinion that they were not of such a nature as to be included in the Committee's draft" (SR.2/p. 9). "He char­ acterized as 'astounding' the statement in the Secretariat outline: 'Everyone owes a duty to his State' and [alluding to the war experience] pointed out that it might be questioned whether an individual owed such a duty of loyalty regardless of the char­ acteristics of his State." In any case, "he did not feel it proper to begin a Bill of Rights with 'The State.' " If any "loyalty to the State" was demanded, then he would also want the Declaration to spell out "the conception that the State must be ajust State.'' 2 Probably because of the strong and repeated Malik objections Cassin did not in­ clude a single reference to the state in his first four articles (AC.l/W.2/Rev.2). I list all four because they show how strong Cassin's communitarian impulse was: A RTICLE 1: All men are brothers. Being endowed with reason, members of one family, they are free and possess equal dignity and rights.

This is an article on general principles that Cassin's colleagues had agreed should start off the list. It is the predecessor of Article 1 of the Declaration and shows the connection that exists between the communalism and duties of Article 29 and the lan­ guage of the first recital ("all members of the human family" ) and Article 1 ("spirit of brotherhood"). 2 : The object of society is to afford each of its members equal opportunity for the full development of his spirit, mind and body.

ARTI CLE

Since Humphrey put all the social, economic, and cultural rights into the Declaration, he obviously believed that everyone has a right to the free and full development of his personality. But his text nowhere stated that right in so many words. Here Cassin states it and we still have it in Articles 22, 26, and 29. I discuss this right in connection with rights to an education and to participation in the cultural life of the community (7.3). 3: Man is essentially social and has fundamental duties to his fellow-men. The rights of each are therefore limited by the rights of others. (Alternative) As human beings cannot live and develop themselves without the help and support of society, each one owes to society fundamental duties which are: obedience to law, exercise of a useful activity, willing acceptance of obligations and sacrifices demanded for the common good. ARTICLE 4: In the exercise of his rights, every one is limited by the rights of others. ARTICLE

The alternative article is a combination of Articles 2 and 3. All three of these articles are strong communal statements. They state the deep reasons behind the principle of

244

Chapter 7

the correlation of rights and duties, which is that a person is essentially a social being and that rights and duties are both grounded in that same communal soil. Cassin's Article 4 states the result of that deep connection on a more surface level by simply asserting the principle of the correlation of rights and duties, as does the first part of Article 29's second paragraph. With the exception of the alternative article, Cassin does not clearly delineate the different types of communities to which everyone has duties. For instance, he left out Humphrey's duties to the United Nations, which were returned to the article by the Third Committee. Bentham would have been pleased with the call for sacrifices for the common good and contemporary Western and non-Western communitarians are right to be disappointed to see that what might have been kept in unfortunately was not. The Collapse and Late Placement of Article 29

The view that these four articles should be collapsed was immediately voiced in the First Drafting Session. Roosevelt expressed the opinion that the four might be col­ lapsed into one article (SR.12jp. 3). Chang, the Chin.ese delegate, agreed with the brevity sentiment, but "wished, however, to retain the first four words ['All men are brothers'] of Article 1" (p. 4). Cassin demurred, saying it took that many articles to state the separate ideas involved in each article. At the next meeting, Ralph Harry, the representative from Australia, also came out in support of collapsing all four of the 1 Cassin articles into just one. Roosevelt, as chair, asked him to do just that. But when he had done so, the Committee had second thoughts and decided to collapse only the . last three of the Cassin articles, keeping his Article 1 as he had proposed it. The Committee took the last sentence of Harry's article and made it a summary of Cassin's three that it wanted to see collapsed: "These rights are limited only by the equal rights of others. Man also owes duties to society, through which he is enabled to develop his spirit, mind and body in wider freedom" (SR.13jp. 4). This collapsed text was passed on to the Second Session of the Commission as the preferred alternative. In the Working Group of that Second Session, Amado, the Panamanian delegate, pro­ posed the following text: "In the exercise of his rights, everyone is limited by the rights and duties of others and by the just requirements of the democratic State" (SR.2/p. 8). General Romulo, the Philippine delegate, agreed with this text and proposed that it be adopted instead of the three separate Cassin articles introduced above. Cassin defended his three articles as a unit because it "introduced the object of society and the correlative idea of the solidarity of individuals within society" (p. 8). With 3 votes in favor and 3 abstentions, the the

Group adopted this PanamanianjPhilippine text: "In

exercise of his rights everyone is limited by the rights of others and by the just requirements of the democratic State. The individual owes duties to society through which he is enabled to develop his spirit, mind and body in wider freedom" (p. 8). In the full Second Session both Victorica of Uruguay and Charles Dukeston of the United Kingdom proposed texts that did not include the phrase "democratic State." The Chinese representative proposed an alternative that changed the wording but retained the phrase "democratic State." All these suggestions were voted down and (with 9 votes for, 2 against, and 5 abstentions) the approved Panamanian/Philippine text was passed on to the Third Session (SR.34jp. 8).

Duties and Communities

245

Some of these disagreements were carried over into the Third Session where the chairman appointed a subcommittee to see if an agreement could be reached. It con­ sisted of the delegates from Australia, China, France, Lebanon, India, and the United Kingdom and produced the following two-paragraph article: "Everyone has duties to the community which enables him freely to develop his personality" and "In the exer­ cise of his rights, everyone shall be subject only to such limitations as are necessary to secure due recognition and respect for the rights of others and the requirements of general welfare in a democratic society" (p. 111). The Third Session adopted this text by 12 votes to none, with 4 abstentions (SR.52/p. 2). This meant that the initial three articles Cassin had set aside for duties and communal obligations had been reduced to one two-paragraph article. The fateful decision to place this article at the end instead of at the beginning was made soon thereafter in the discussion of the Style Committee report. Islamic scholar Abdullahi Ahmed An-Na'im has made the point that Pen-Chun Chang, as a non-Westerner, did not really express the Confucian tradition he was sup­ posed to represent and which on all accounts was more communitarian than the West­ ern cultural traditions that had shaped Chang's education.3 There is some truth to these charges, for it was Chang who proposed that duties be placed at the end of the Declaration instead of at the beginning. The minutes record that "Mr. Chang (China) proposed making article 2 the penultimate article of the Declaration. An article which dealt with the limitations on the exercise of the rights and freedoms proclaimed in the Declaration should not," he said, "appear at the beginning of the Declaration before those rights and freedoms themselves had been set forth" (SR.77jp. 2). This placement of duties at the end can be - but need not be- taken as an invitation to see the Universal Declaration as a mere offshoot of the eighteenth-century tree of rights, which is precisely what Cassin in his four initial articles had been trying to prevent from happening. The delegates understood the importance of the proposal and the vote was very close. Geoffrey Wilson, the British delegate objected because he felt that the Decla­ ration "should avoid giving the reader the impression that the individual was granted unlimited rights" (p. 3). Alexei Pavlov, his colleague from the USSR, also thought that "the reader should know from the outset that the rights and freedoms set forth in the Declaration were to be eJUoyed within the framework of society" (p. 4). The Lebanese and Belgian delegates agreed with this position. Omar Loufti, the Egyptian represen­ tative, argued that the article on duties was among those "which set forth the general principles, and as such should appear at the beginning of the Declaration" (p. 2). In spite of this opposition, the Chinese proposal carried with a vote of 8 to 7 and I abstention (p. 3). Voting in favor of placing the article on duties at the end of the Dec­ laration were, among others, the delegates from Uruguay, the Philippines, and the United States, as well as the Chinese sponsors. The sponsorship of this demotion of duties was unfortunate because it did not have a strong rationale at all. It is all the more surprising that it should come from a man who throughout the proceedings had been one of the most astute drafters. Chang had been one of the few delegates who supported the Latin American attempt to have the Declaration be much more explicit about duties. He also introduced into the Declaration the Confucian concept of "two-man-mindedness," which became

246

Ch•pter 7

the word "conscience" in Article I (see 8.3). These contributions make it difficult to understand why Chang would want to undercut his own communitarian background by proposing that duties be placed at the end of the document, except that he wanted to curry favor with the United States and that he personally did not feel well. In his diary of the year I948 Hu mphrey has the following entry for December 5: "P. C. Chang was less helpful than usual. His emotional outbursts become more fre ­ quent and he has made some personal enemies. I am told however that he has not been well and he must be disturbed by events in China." 4 Humphrey's entry suggests that Chang had had similar outbursts before, one of which may have occurred on or a� out june 15, when Chang made his motion to move the article on duties to the end of the Declaration. On june I5, I948, the New York Times published side by side a report that the draft for a Chinese-American aid agreement had been returned to Washington by Americans in China who were asking for firmer supervision of aid ex­ penditures in China and a report that on June 14 "communists made daring raids today within a few miles of uneasy Shanghai and Nanking," which was the capital.& Chang may have been pressured by events to vote the way he knew the United States would vote. Be that as it may, the correlation of rights and duties is a fundamental principle and should have been kept with the other two basic announcements, the one in Article I about "all human beings being born free and equal" and the one in Article 2 that prohibits "discrimination of any kind." (Chang was to have another non-Confucian day when he voted against the inclusion of the word "alone" in the first paragraph of Article 29, as discussed below. That happened about a week before Humphrey made the quoted entry.) Chang's proposal to put duties at the end was made in the Style Committee of the Third Session, which brings us to the Third Committee stage, where a very important discussion and vote took place on the occurrence of the word "alone" in Article 29's first paragraph. The Communitarlan Implications of the Word "Alone"

As received from the Third Session of the Commission, the first sentence of Article 29 stated that "everyone has duties to the community which enables him freely to develop his personality" (E/800). Alan Watt, the Australian delegate, proposed the substitute phrase "in which alone the full and free development of his personality is possible" (p. 658). Contoumas, the Greek delegate, expressed his agreement, but Roosevelt and Chang were opposed (p. 659). One wonders about Chang's position in light of his earlier desire to retain the phrase ·�n men are brothers." Unfortunately, it does fit somewhat with his proposal to move duties to the end of the Declaration. The insertion of the word "alone" amounts to the announcement of an organic connection between the individual and the community to which he or she owes duties, not unlike Confucius would have had it. Fernand Dehousse, the Belgian delegate, objected to the Australian amendment because "while there was no doubt that society contributed to the individual's person­ ality, it was not less true that development was conditioned by other factors." He said he wanted to avoid the erroneous interpretation that "the individual could only de­ velop his personality within the framework of society; it was, however, only necessary

Duties and Communities

Z47

to recall the famous book by Daniel Defoe, Robinson Crusoe, to find proof of the con­ trary" (p. 658). If this line of thought had won out, the Declaration would have lifted the individual out of his or her social context and the rights declared would have been those of an abstract and unrealistic individual, the kind that does not exist. And the critics would have had much more of a point in their charge that the Declaration does not apply to those nations where the identities of people are still very much shaped by their kinship ties and where the familial model is the most appropriate one even for the larger social units. Third World nations, many of which are in Mrica, and those in the Far East that still draw from their Confucian roots, would have had legitimate complaints. And so, for that matter, would the Western democracies, for the individu­ alism that came out of the Enlightenment was never meant to separate individuals from their communities of birth and growth. Pavlov, the delegate from the USSR, picked up on this reference and came to the rescue. He thought the Australian amendment was "important in that it stressed the harmonious relations which should exist between an individual and the society in which he lived. The word "alone," which had been criticized by some delegations, seemed to him excellent. It rightly stressed the fact that the individual could not fully develop his personality outside of society. The example of Robinson Crusoe, far from being convincing, had, on the contrary, shown that man could not live and develop his personality without the aid of society. Robinson had, in fact, had at his disposal the products of human industry and culture, namely, the tools and books he had found on the wreck of his ship" (p. 659) . Since the Australian delegation did not wish to insist upon its amendment, the Soviet delegation, which more clearly recognized the impor­ tance of the issue, took up the cause. Pavlov was careful not to cast his rebuttal of the Belgian position in terms of an individual's relation to the state, but couched it instead in terms of the individual's relation to society. In light of the later rejection of his pro­ posed reference to the "democratic state," this shift in tactics was probably crucial. The insertion of the word "alone" was not done blindly. Before it had even been proposed some probing questions had been asked by the Dutch delegate on how his colleagues envisioned the relationship in Article 29's first paragraph between the individual and his community. L. J. C. Beaufort observed that in "choosing the word 'community,' [the Committee had] . . . quite rightly desired to point out that the State was not the only social group concerned." But "the wording of paragraph 1 was not entirely satisfactory" to him. "Did 'the community which enables him . . .' mean a com­ munity which effectively permitted an individual to develop his personality? Was it to be understood that a relationship of cause and effect was established there? He could not accept such an interpretation . . . . An individual had duties towards the commu­ nity independent of the character of that or the other community.'' For instance, "the fact that a State did not grant political rights to a certain category of citizens, though deplorable, was not a sufficient reason for the citizens in question refusing . . . to pay their taxes" (p. 656). For these reasons the delegation of the Netherlands prefered the omission of the second half of the paragraph. Perez Cisneros, the Cuban delegate, was not worried about such complications and felt strongly that "the individual should also be reminded that he was a member of society and that he must affirm his right to be a human being by clearly recogniz­ ing the duties which were corollaries of his rights" (p. 656). The insertion of the word

248

Chapter 7

"alone" carried by 23 votes to 5, with 14 abstentions (p. 660). One of the delegates who voted for the inclusion was F. Corbet of the U.K., who said she wanted the word "alone" in the article because it "stressed the essential fact that the individual could attain the full development of his personality only within the framework of society" (p. 660). This word "alone" may well be the most important single word in the entire docu­ ment, for it helps us answer the charge that the rights set forth in the Declaration create egotistic individuals who are not closely tied to their respective communities. Alan Gewirth answers this charge explicitly in his book Tlw Community of Rights, which is "an attempt to give philosophical elucidation and specification of some of the main economic and social rights set forth in the Universal Declaration of Human Rights.'' e Indeed, we have seen in the preceding three chapters that these kinds of rights in particular bring out into the open the solidarity and mutuality that is part of the possession of every human right. Says Gewirth: "The concept of human rights thus entails a mutualist and egalitarian universality: each human must respect the rights of all the others while having his rights respected by all others, so that there must be a mutual sharing of the benefits of rights and the burdens of duties . . . . By the effective recognition of the mutuality entailed by human rights, the society becomes a commu­ nity. So the antithesis between rights and community is bridged" (p. 6). The insertion of the term "alone" into Article 29 was meant to underscore this communitarian di­ mension of human rights possession. Duties to Individuals In Other Communities

The first sentence of Article 29's second paragraph takes a while before it finally mentions "the rights and freedoms of others," yet that is the original core of the para­ graph. We have already seen that core in the first part of Humphrey's Article 2: "In the exercise of his rights everyone is limited by the rights of others and by the just requirements of the State and the United Nations.'' Cassin also had it crisply stated in his Article 4: "In the exercise of his rights, everyone is limited by the rights of others." This is the basic legal and philosophical principle of the correlation of rights and duties which plays a fundamental role in all parts of Article 29. Leaving the United Nations reference out for the moment, this principle was almost unanimously ap­ proved for incorporation in the Declaration, except that the drafters did not want to give it the first spot. Before he wrote his first draft Humphrey knew that several delegates to the First Session had expressed the wish that this principle be incorporated in the Declaration. "Everyone of these rights," said William Hodgson of Australia, "has a correspond­ ing duty" (AC.l/3/Add.l/p. 5). C. H. Wu, the Chinese delegate, also thought that the drafting of a declaration was a question of "establishing the rights of the human being and at same time demanding his acceptance of the corresponding obligations" (p. 5). The British delegate, Lord Dukeston, thought it "was of no use" to seek, for instance, to "define personal freedom entirely detached from the obligation of those individu­ als either to the State or to voluntary organizations" (p. 6). Two of the drafts on Humphrey's desk contained a statement of this principle of the correlation of rights and duties. Article 19 of the Chilean proposal stated that "rights and duties are correlative; and [that] the duty to respect the rights of others

Duties and Communities

249

operates at all times as a restriction upon the arbitrary exercise of rights" (p. 12). However, Humphrey took most of the wording from a Panamanian draft proposal, ex­ cept that he dropped from that text the adjective "democratic" and added to it the idea of having duties toward the United Nations. In addition several constitutions in Humphrey's survey had similar provisions (p. 12). With all of this input it was a foregone conclusion that the principle of the cor­ relation of rights and duties would be incorporated in the Declaration. As Belarmino Austregesilio de Athayde, the Brazilian delegate, told the Third Committee: "It was impossible to draw up a declaration of rights without proclaiming the duties implicit in the concept of freedom which made it possible to set up a peaceful and democratic society. Article 27 [29] was of great importance because without such a provision all freedom might lead to anarchy and tyranny" (p. 646). Beaufort of the Netherlands ob­ served that "the debate on Article 27 [29] had shown that the rights of the individual were not absolute. It was necessary to define the restrictions demanded by respect for the rights of other individuals and of different social groups" (p. 656). The second paragraph does just that. Duties and the General Welfare of a Democratic Society

The "the just requirements of morality [and] public order" were added to the sec­ ond paragraph of Article 29 in the Style Committee of the Third Session. That Style Committee had received from the Third Session two kinds of limitations: the rights of others and the requirements of the general welfare in a democratic society. The French language, however, does not have a good equivalent for the English term "gen eral welfare," which is why in the French text two other terms - /a morale and l'ordre public-had been added to the expression bien-etre genera� which is the uneasy equiva­ lent for "general welfare." Ordonneau, the French delegate, explained that this was done "so as to cover everything that was contained in the English idea of general welfare" (SR.74jp. 12). To balance out these two texts, Loufti, the Egyptian represen­ tative, proposed that the terms "morality and public order" be added to the English text. This proposal was adopted and a brief discussion followed about the desirability of the phrase "public order." "Mr. Hood, the Australian delegate, preferred the word order without qualifica­ tion, since the expression 'public order' generally conjured up the idea of arbitrary measures" (p. 12). Roberto Fontaina, the delegate from Uruguay, was worried about the possible abuse of that provision, as "so many crimes had been committed in the name of public order." That the text spoke of public order in a "democratic society" "did not solve the difficulty," he said, "since there were many different ideas of demo­ cratic society." He urged the adoption of limitations for the sake of the "the security for all," which was not open to misinterpretation, which was rejected ( SR.74jp. 15). Karim Azkoul, the Lebanese delegate, felt the same way. Ordonneau responded by assuring his colleagues that "in the French the idea of public order was in no way associated with political theories; it had a purely administrative significance, and cor­ responded to public morality peace and security" (p. 14). Pavlov, the USSR delegate, observed that "it was the laws of States that fixed the limits for the exercise of human rights and freedoms." He therefore wanted to add to ­

250

Chapter 7

the text the phrase "and in accordance with the just requirements of the democratic State" (p. 14). Replying to Pavlov, Pierre O rdonneau "pointed out that freedom was not exercised only within the framework of the State, but also, for example, within that of municipalities. The French delegation had preferred the expre ssi on 'democratic society' because t hat also covered communal groups" (p. 15). The USSR proposal was rejected by 11 votes to 4, with 1 abstention. Not daunted by this setback the Soviet delegation brought up the same amendment again in the Third Committee, where it was again rej ecte d . The drafters were so set against having references to the state in their document that they even refuse d to put one in at the very place where it would have been most natural to do so, namely, in the article where limitations were be ing

discussed. In the Third Committee the New Z ealand delegation proposed an amendment to have the items of " moral ity and public order" deleted from the text (A/C.3/267 ). This would have put the entire rationale for limitations on the phrase "democratic society." Many delegates argu ed against this deletion because they like d the transcen­ dent charac ter of morality as a separate standard over systems of domestic law and over the calculations of the general welfare. And as we have seen, there was no con­ sensus on what the word "democracy" stood for (see 2 . 4). To delete these two items, argued Pablo Campos Ortiz, the Mexican delegate, would make the New Zealand position essentially the same as the one taken up by the USSR delegation "in that the effect of the amendment would be to permit the State to impose such lim itations as it p lease d upon the rights and freedoms of the individual. . . , The requirements of morality, public order and the general welfare were recognized by all nations; it was the concept of democracy that was still inadequately defined and unknown to juris­ pruden ce " (p. 650). Hearing these arguments the New Zealand delegation decided to withdraw its amen dment (p. 66 0) . An amendment from the Uruguayan delegation presented the drafters with a difficult dilemma (AjC. 3/268). It was proposed to add to the limitations of Article 29's second paragraph the phrase "prescribed by law solely for the purpose of secur­ ing." Its sponsor, Justino Jimenez de Arechaga, defended the insertion on grounds of the need for the Declaration to assert the rule of Jaw. He pointed out that "the li mi ta tions set by the public authorities could only be so set in accordance with pre­ established standards, i.e. in accordance with provisions legally enacted. Thus human beings would have the guarantee that they would be governed according to rules and not according to the whim of their rulers" (p. 654). His colleague from Venezuela, Ed­ uardo Plaza, supported this insertion "because representatives who had introduced legal safeguards in earlier articles had frequently been told that the subject would be covered by Ar tic le 27 [29] ." 7 Those who were opposed to the insertion of the phrase "prescribed by law solely for the purpose of securing" were of the opinion that the scope of the phrase was too broad. Chang, the delegate from China, objected because as proposed the provision would also cover "the conce pts of morality and respect of the rights of others, which surely could not and should not be prescribed by law" (p. 651). Azkoul of Lebanon was opposed because he wished "to prevent suppression of individual rights by arbitrary decrees" and because "some justifiable limitations "might not rest on written laws" (p. 651). Cassin was opposed to the insertion for the same re asons (p. 6 53 ). Roose-

Duties and Communities

ZSI

velt, the U.S. delegate, was opposed because "there often was a difference of opinion regarding what was strictly legal and what was just and she did not want to exclude moral force from article 27 [29]" (p. 644). The phrase was adopted into the final prod­ uct by a roll-call vote of 22 for, 8 against and 11 abstentions (p. 660). I mention one more proposal that did not elicit much discussion. It will prepare the reader for the later rejection by the delegations of Latin America of a separate article on the rights of members of minority groups (see 7.4). The Chilean delegation proposed that two more items be added to the list of limitation rationales: "national sovereignty" and "solidarity." 8 Santa Cruz, the Chilean delegate, told his colleagues that this amendment "introduced a new concept made necessary by modern con­ ditions." He meant that sometimes citizens of one country who had immigrated to another country acted on orders of their own country against the state to which they had gone. This amendment to Article 27 "would permit States to combat subversive groups which attacked them from within. Similarly, the mention of national sover­ eignty would help them resist external aggression in times of war" (p. 652). It was gen­ erally felt that these needs were met by the other rationales already adopted. The item "solidarity" was rejected by 17 votes to 7, with 19 abstentions, and the item "national sovereignty" was rejected by 17 votes to 17, with 7 abstentions (p. 661). Duties to Uphold the Purposes and Principles of the United Nations

In his very first article on duties Humphrey had said that "Every one owes a duty to his State and to the (international society) United Nations." Cassin made changes in both of these duties. He replaced the duty to one's state with a duty to one's community and society and that became the standard context for Article 29. And without explanation he dropped the duty to the international society and to the United Nations, which was not mentioned again until the Third Committee. At that stage two amendments to re­ store this provision were made. The Egyptian delegation introduced the following as a third paragraph for the article: "These rights can in no case be exercised contrary to the principles and purposes of the United Nations" (AfC.3f267). And the French delegation proposed that the second paragraph end with the phrase "and to serve the purposes and principles of the United Nations" (A/C.3f345). Cassin explained that the French addition "was intended to make clear that the individual belonged to the international community as well as to his own national society and that the interests of that organized international community were the same as his own" (p. 643). Cassin added the observation that "it seemed appropriate to add a reference to the purposes and principles of the United Nations" in "a gen­ eral article dealing with the limitations on human rights and freedoms" (p. 643). This is an enormous limitation because it means all members of the human race are part of a vast network of moral Leibnizian monads, everyone of which is related to and re­ flected in every other one. Almost all those who addressed the issue spoke in favor of expanding the circle of duties to these outermost perimeters. Roosevelt thought that while the Egyptian amendment had "the merit of intro­ ducing a reference to the purposes and principles of the United Nations," it "would in her opinion create confusion." In any case, she preferred the language of the French text (p. 644). Contoumas of Greece and de Athayde of Brazil also liked the French text

252

Chapter 7

best, the latter because it "reflected the interests of all mankind" (pp. 649 and 647). Azkoul , the Lebanese delegate, also supported these amendments and observed that his own delegation had submitted an amendment about the purposes and principles of the United Nations to be added to Article 28 [what was then 30] ,9 Dehousse, the Belgian representative, supp orted these efforts and thought the ideas they contained were important enough to warrant a separate paragraph, but he preferred the French wording of "purposes " before "principles . " ·�ttempts had been made at various other times," he said, "to insert that mention in earlier articles; article 27 [29] appeared the be the best place for it" (p. 650). Cassin said he would accept the Belgian suggestion of a separate paragraph that used the wording ("purposes" before " p rinciples" ) of the French text.10 One of the very few objections to these UN references came from Corbet of the United Kingdom. She was opposed to them because the "purposes and principles of the United Nations as stated in the Charter applied largely to the conduct of States and not of individuals." 11 The fact that by 34 votes to 2, with 6 abstentions, the Third Com­ mittee adopted the third paragraph of Article 29 indicates that the vast majority of the drafters did not agree with this interpretation of the UN Charter (658). The majority of the drafters believed that by proffering the notion of human rights the document itself had opened the door that gave the individual a status in international law and affairs. 7 . 2 Protecting the Family, Motherhood, and Childhood

We have seen that Article 29 calls on persons to do the duties they have to "the com­ munity in which alone the free and full development of . . . [their] personality is possible." And we also saw that the article in effect addresses itself to any number of communities that contribute to a person's development, in the context of all of which a person has duties to perform. In normal circumstances the family, however defined, is a person's primary community of growth and development. It is therefore appro­ priate to follow our exposition of the meanings in Article 29 with one of how and why the drafters declared the need for special protection for the family, motherhood, and childhood. Not cou nt ing the first recital's reference to the "human family," the Universal Declaration contains three explicit statements and one implicit one about the family. First, the third paragraph of Article 16 tells us that "the family is the natural and fun­ damental group unit of society and is entitled to protection by society and the State." Second, Article 23's third paragraph says that everyone who works has the right to enough remuneration to ensure "for himself and his family an ex istence worthy of human dignity." Third, in the first paragraph of Article 25 we read that everyone has a right to a standard of l iving that is "adequate for the health and well-being of himself and of his family." 12 Fourth, that same article's second paragraph implies protection of the family when it states that "motherhood and childhood are entitled to speci al care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection." For most people the family is their primary community of birth and growth, and these four references show just how very keen the drafters were on protecting this p articular community. I have already given an account of Article 23's

Duties and Communities

253

third paragraph (see 5.5) and 25's first paragraph (see 6.1 and 6.2). The third para­ graphs of Articles 16 and 25 will be the topic of the present discussion. From the start the drafters, with the active support of the women's lobby, wanted to keep the issues of the equal treatment of the sexes separated from the need for spe­ cial protection for the family and for children. In Humphrey's first draft the right to contract marriage was separated from the need to protect the family. H13 stated that "every one has the right to contract marriage in accordance with the laws of the State." Cassin took over that article, but robbed it of its independent status and blended it in with his article on the right to a legal personality (W.2/Rev.2). Instead of adopting the combined Cassin article formally, the Drafting Session appended a note to Article 15 (on legal personality) stating that it was awaiting word from the Commission on the Status of Women as to the best way to word this provision (21/p. 76). In H40 Humphrey had declared that "every one has the right to such public help as may be necessary to make it possible for him to support his family" (AC.l/3/p. 6/14). Cassin made two additions that singled out the family unit for special protec­ tion. To the provisions on good working conditions he added the stipulation that a worker's compensation "shall give a decent standard of living to the worker and his family" (W.2/Rev.1). And to the just cited H40 he added the following: "Mothers and children have the right to special regard, care and resources" (W.2/Rev.2). Cassin's call for the protection of mothers and children was supported by France's 1946 constitution, which "guarantee[d) to all, notably to the child, to the mother and to the aged workers protection for health, material assistance, rest and leisure." ts He also found much support for the provision in the Latin American constitutional tradi­ tion that protected the family as children's primary community of birth and growth. Article 10 of the draft submitted by Chile (and drafted by the Inter-American juridical Committee) summarized that tradition well. It stated that "in their mutual relations parents have a primary right of control over their children during minority, and [that] they have a primary responsibility to maintain and support them." It went on to say that it "is the duty of the State to assist parents in the maintenance of adequate stan­ dards of child welfare within the family circle, and to promote as far as possible the ownership of individual homes as a means of fostering better family relations." Should parents fail in these obligations, "the State must itself provide for their protection and support" (E/CN.4/2). Santa Cruz, the delegate from Chile, sponsored the two Cassin additions about the family (AC.1/11/p. 45) . The call for the protection o f mothers and children was passed on to the next stage as the second paragraph of what was then Article 34. This means that the First Drafting Session created a split between Article 15 (now 16) which dealt with marriage rights and Article 34 (now 25) which dealt with the protection of the family and of children. The Working Group of the Second Session affirmed this split. When that Working Group met Manasi Stepanenko, the Byelorussian represen­ tative, expressed disagreement with the split between marriage rights and the protec­ tion of the family. He proposed that "the question of marriage and the family be dealt with in a special article to be worded as follows: 'Marriage and the family shall be protected by the State and regulated by law, on the basis of equal rights for men and women, without distinction as to race, religion or origin. Mothers and children are

Z54

Chapter 7

entitled to special protection and assistance by the State' " (SR.6jp. 2). The middle sec­ tion of this proposal, dealing with the equal rights as to marriage, immediately took all the drafters' attention and led to the adoption of a separate Article 15A: "Men and women shall have the same freedom to contract marriage in accordance with the law" (57/p. 10) . The two Communist delegates disagreed with this emphasis on marriage rights and it led Alexandre Bogomolov, the USSR representative, to observe that "in marriage in the twentieth century the free will of the two parties was no longer the essential question. The question of marriage should be examined from the angle of the protection which the State must give the home, and the main emphasis should be placed on the protection of children" (p. 6). Since the middle clause had been turned into a separate sentence on equal mar­ riage rights for men and women, that left the first part on the protection of the family to be adopted separately also. Cassin suggested that the phrase "and by society" be added to that family protection clause, "it being understood. that all kinds of societies were meant, including churches" (p. 4) . Amended in this way, the Working Group adopted by 3 votes to 1, with 2 abstentions, the first Byelorussian clause as the second sentence of the newly minted Article 15A: "Marriage and the family shall be protected by the State and society" (p. 7). These two sentences are the core of Article 16. The Byelorussian initiative on the protection of the family stayed at the center of Article 16's third paragraph, but Malik, the Lebanese delegate, gave it quite a controversial drafting history. The Byelorussian call for the protection of mothers and children was a duplica­ tion of a clause the Drafting Committee had already accepted in its Article 84, which is now 25. The intention behind introducing it again was to link up the concepts of marriage, family, motherhood, and childhood all in one article. The Working Group did not go along with that combination and therefore accepted the last part of the Byelorussian proposal only "in principle," leaving its place to be decided. Bodil Beg­ trup, Danish delegate and representative of the Commission on the Status of Women, stated that "she would prefer to see mothers' rights and the protection of children mentioned in two separate paragraphs. " Even then, she felt that the amended end­ ing would fit better "in the provisions relating to social security" than in the article on marriage (SR.6jp. 2). Roosevelt agreed with that. Since the very same provision was already contained in what was then Article 34 that is how it went to the Second Session. Thus, the last sentence of the original Byelorussian proposal became the sec­ ond paragraph of what is now Article 25. From this point on these two paragraphs, 16(3) on the protection of the family and 25(2) on the protection of motherhood and childhood, had their own separate drafting histories. Article

1 6 (3): The Protection of the Family

In the Second Session of the Commission Charles Malik of Lebanon proposed that the second sentence of the marriage article, which called for the protection of the family be replaced by two very metaphysical sentences: "The family deriving from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law and as such shall be pro­ tected by the State and Society" (SR.37jp. 11). His rationale was as follows:

Duties and Communities

ZSS

He maintained that the word "family" was mentioned for the first and only time in the Decla­

ration. He maintained that society was not composed of individuals, but of groups, of which the family was the first and most important unit; in the family circle the fundamental human freedoms and rights were originally nur ture d. It therefore deserved greater p rominence . . , . Regarding the second sentence of his amendment, he said that he had used the word "Creator" because he believed that the family did not create itself. That word might give rise to objec­ tions, but he would very much like to have it retained. He also contended that the family was endowed with inalienable rights rights which had not been conferred upon it by the caprice of men, and he cited the use of the phrase "endowed by nature" [at that time still] in Article 1 as a precedent for the wording.l4 ,

The only person to speak against this amendment was Bogomolov of the USSR. He did not accept Malik's definition of the "family." "Various forms of marriage and family life existed in the world," he said, "each form corresponding to the special eco­ nomic conditions of the people concerned. Different religions had different ideas re­ garding the position of woman in the family; some religions allowed polygamous fami­ lies and some did not accord an equal status to men and women. He also reminded the Representatives that many people did not believe in God, and that the Declara­ tion was meant for mankind as a whole, whether believers or unbelievers" (SR.37jp. 12). Dehousse, the Belgian representative, requested that the Lebanese proposal be voted on in two parts. This was done. The first sentence (which included the phrase "natural and fundamental group unit") carried by 9 votes to 5, with 3 abstentions, while the second one (which had in it the words "Creator" and "inalienable") was re­ jected by 9 votes to 6, with 3 abstentions. The Second Session took away the article's attachment (as 15A to 15) to the right to a legal personality and forwarded it as Article 13, now 16, to the Second Session of the Drafting Committee. At this point the marriage-family artide had three sentences, the first and the third dealing with the family and the middle one with marriage rights: "The family deriving from marriage is the natural and fundamental unit of society. Men and women shall have the same freedom to contract marriage in accordance with law. . . . Marriage and the family shall be protected by the State and Society" (E/600). The Drafting Committee dropped the first sentence, expanded the second into two and kept the third sentence. Both the United States and the United Kingdom representa­ tives suggested that the whole article be dropped because its contents were covered by other provisions in the Declaration, presumably the rights to association and social security. Both Cassin and Malik objected and repeated much of the rationale Malik had given in the Second Session. Cassin "did not think it was possible to disregard human groups and to consider each person only as an individual" (SR.38jp. 8). Malik, too, "thought that this omission would be exceedingly regrettable. The family was the cradle of all human rights and liberties. It was in the family that everyone learned to know his rights and duties and it would be inexplicable if everything were mentioned except the family's right to existence" (p. 8). This sentiment assured that the article on marriage would also have some family protection in it, but it did not settle the wording. Instead of defending what was there already, Malik again proposed his (already rejected) addition stating that the family "is endowed by the Creator with inalienable rights antecedent to all positive law and as such [shall be protected by the State and Society] ." He said that the word "Creator" should not be objectionable because it did

256

Chapter 7

not have to mean "God" and in some philosophies referred to "Nature." "There was no theological implication, " he said. "The point on which he wished to insist was the fundamental and inalienable importance of the family " (p. 8). Pavlov, the USSR rep­ resentative, �greed with Malik on the fundamental issue of giving the fa m ily special protection, but he saw no need to " bring any philos ophical theories into the Decla­ ration" (p. 10). This L ebanese proposal to e xpand the last sentence as indicated was rejected by 6 votes to 1, with 1 abstention. Possibly because Malik had not left well enough alone, his colleagues went a step further and decided to also delete the sen­ tence about the family being "the natural and fundamental group unit of society." The vote was a very close one and had to be taken twice. The sentence failed by 4 votes to 3 with 1 abstention, leaving only the call of the last sentence for the prote c tion of marriage and the fam ily by the state and society (p. 11). In the Third Session of the Commission Malik succeeded in ge tting his first sen­ tence reinstated as the preferred text over a much shorter U.K.- India proposal, which simply stated that men and women were "entitled to equal rights as to marriage" (99/p. 4). He pleaded for the reinstatement of the words "the natural and fundamental group unit of s o ciety," which he said "were the most essential part of his amendment" (SR.58/p. 11). He had reason for optimism, because the French, Belgian, and U. S. delegations all had made proposal s that contained these words.111 Since the U.K.-India text left out all pro tection and simply focused on the right to contract marriage, the first Lebanese sentence seemed acceptable once again. Fontaina , the delegate from Uruguay, mentioned that the word " natural " might be deleted "since the essential point was to state that the family was the fundamental group unit of society and that it was the cell around which the State was formed; the way in which the family was constituted was of secondary importance" (p. 13). The Uruguay prop o sal would have protected the right to found a fam ily on the part of those whose sexual inclination is not heterosexual and still have done justice to the anthropological data which tell us that over the long haul the monogamous, heterosexual marriage is the best device for a society's continued existence.16 To support his case Malik had been appealing to the 1948 Bogota Declaration, which had been adopted by twenty-one states at the Ninth International Conference of American States one month earlier. But that document does not contain any of Malik's controversial terminology. Its Article 6 simply states: "Every person has the rights to establish a family, the basic element of society, and to receiv e protection therefor" (see E/CN. 4/122/p. 3). The fact that he added the words "natural" and "Cre­ ator" himself suggests that Malik was indeed thinking of a natural law approach to human rights. His use of the phrase "antecedent to all p ositive law" in the earliest for­ mulation of the amendment points in the same direction. Loufti, the delegate from Egyp t, proposed that the phrase "deriving from mar­ riage" after the word "family " be deleted from the family protection clause Malik was proposing (p. 12). He was supported in this by Joaquin Larrain, his colleague from Chile. Malik demurred, but (by 10 votes to 1, with 4 abstentions) it was done anyway because his colleagues wanted to protect illegitimate children. As amended in this way, the Third Sessio n adopted A rti cle 1 6 's third paragraph by a vote of 8 to 1 with 6 abstentions (SR.62/p. 12). It was not questioned again. In all the commotion the phrase "by society and the State" which had been a more or less permanent part of

Duties and Communities

257

the protection clause was dropped in the Third Session and resurrected in the Third Committee as part of a Soviet amendment (E/800). Article

25(2) : The Protection of Motherhood and Child hood

Some of the constitutions available to the Commission were quite explicit about the needs of pregnant women and children. The French constitution called for special protection to be given to "the child, to the mother and to all the aged workers." 17 Article 157 of the Brazilian constitution asserted the right "of an expectant mother to rest before and after childbirth with no prejudice to her job or wage." A similar provision existed in the Nicaraguan and Panamanian constitutions. The former stated that "Maternity has the right of assistance from the State" and the latter that "Mater­ nity in the working class is to be protected. The woman in a state of pregnancy may not be separated from her employment for this reason." The Belgian, Cuban, and USSR constitutions also contained these rights. Various nongovernmental organiza­ tions submitted their own drafts of a declaration to the Commission. The draft of the American Federation of Labor sought a guarantee against "the employment of child labor" (W.Sjp. 20). Naturally, this special protection of women had to be balanced against the equally important campaign for the equality of the sexes.18 And it can lead to special rights to maternity leaves and support.l9 There was therefore ample precedent for a paragraph demanding the protection of motherhood and childhood, especially in the context of an article on the rights to social security, which is where Cassin first made the addition: "Mothers and chil­ dren have the right to special regard, care and resources." When the Cassin addition came up for discussion in the Working Group of the Second Session Roosevelt sug­ gested that the paragraph read: "Mothers have the right to special provisions, care and welfare. Children are similarly entitled to special provisions" (SR.Sjp. 11). Beg­ trup, Danish delegate and the representative of the Commission on the Status of Women, "welcomed the separation of the provisions concerning mothers from those concerning children. She proposed that the word 'Mothers' be replaced by the word 'Motherhood,' in order to cover the prenatal state" (p. 12). Whereupon, Roosevelt, the chairman, proposed that the vote be taken on this text: "Motherhood shall be granted special care and assistance. Children are similarly entitled to special care and assis­ tance." This was adopted by 3 votes to 0 with 3 abstentions (p. 1 3) . This is close to what we have. However, a drafting subcommittee in the Third Session undid some of the changes the Commission on the Status of Women had wanted. It proposed and got accepted the following short version of Article 25's second paragraph: "Mother and child have the right to special care and assistance." 20 The Third Committee restored the earlier language and added the reference to children born out of wedlock. At the time of the discussions in the Third Committee, the version that was slated for adoption read that "mother and child have the right to special care and assis­ tance." Several countries made amendments, some of which were very explicit about the equal rights of illegitimate children. The Yugoslav delegation wanted the Declara­ tion to assert that "illegitimate children are equal to legitimate children and have the same right to social protection" (AjC.3/233). The proposal that led to the present text came from the Norwegian delegation. It stated that "children born out of wedlock are

equal in rights to children born in marriage and shall eqjoy the same social protec­ tion" (A/C.S/344). Mohammed Habib, the Indian delegate, welcomed the Norwegian amendment "in the firm conviction that the sins of the parents should not be visited upon the children" (p. 578). At about the time the Commission asserted the equal rights of legitimate and illegitimate children, its members had their awareness of children's rights raised by Ludwik Rajchman, the chairman of the United Nations International Children's Emer­ gency Fund (UNICEF). Speaking twelve days before the Declaration was adopted, he reported to the Third Committee that "during the twelve preceding months, UNICEF had rendered assistance to twelve war devastated European countries with a total population of 191 million, of whom 64,600,000 were children under eighteen years of age and 4,800,000 were pregnant or nursing women" (p. 796). He went on to say that only 6 percent of those eligible for aid had received it and that the "infant mortality rate had [consequently] reached an abnormally high level in those countries" (p. 796). Also at this time, the Third Committee received a progress report on the activities of the United Nations Appeal for Children ( UNAC), which was a campaign conducted by the office of the Secretary-General. The campaign was hugely successful. By Novem­ ber 15. more than $30 million had been collected (A/C.S/387/p. 107). It is clear that the Third Committee did not want to tie the rights of children to any kind of narrow definition of the family, in which they might get entrapped, or which might leave some children unprotected. The abstract language of "mother­ hood" and "childhood" does not allow for such intertwining. Each is separately "en­ titled to special care and assistance." For instance, all children have the right to the enjoyment of "the same social protection" whether "born in or out of wedlock." They have their human rights by virtue of their own humanity and not by virtue of the family they happen to be born into or not born into. As Article 1 of the Declaration puts it, '�ll human beings are born free and equal in dignity and rights." To which Article 2 adds the prohibition of all discrimination including that based on "social origin" and all other circumstances of "birth." The irrelevance of all those external factors will be underscored when I explain in the next chapter (8.2) that the word "birth" in Article 1 has a moral connotation that attaches itself to the biological/physical event of our births, regardless of circumstances of time and place. The same idea is captured by the use of the word "inherent" in the first-recital of the Preamble. 7 .J The Rights of Religious and Educational Communities

In the first section of this chapter I surrounded the individual with a series of con­ centric circles on which I located communities that contribute to the free and full development of the human person. By making those contributions these concentric communities are doing the duties that are activated by the human rights of their mem­ bers. This leads to a vast system of mutuality of rights and duties. Since all those in­ volved in contributing to the development of a particular person themselves also have human rights, each of the recipients of this help has a great number of duties as well. The duties of these recipients are activated by the human rights of those who have helped or are helping, directly or indirectly. In the preceding section I took the family as an individual's primary community of growth and development and showed that

Duties and Communities

259

the drafters of the Declaration were especially solicitous of that particular community because it is "the cradle of human rights" and the place where most individuals first learn about the reciprocity of rights and duties. In terms of the development of the human personality we must surely rank religious and educational communities next after the family. This section focuses on those kinds of communities and the rights the Declaration says its members have, which the state has the duty to protect. To help us with this task I suggest that we make a distinction between two ways in which a government or state can be involved in the delivery of the human good to its people, a thick way and a thin way. The human good in the thick way is constitutive of the meaning of life and typically involves religious, linguistic, or cultural practices that define the groups that feed and shape a person's identity. A government delivers the human good in a thick sense if it sees itself as being responsible for the delivery and maintenance of a specific cultural, religious, or linguistic tradition through which its people are infused with meaning for their lives. The Greek polis, some medieval forms of government, all organic theories of the state (Nazi Germany included) were aimed at producing the human good for their people in this thick way. By contrast, a government that is only interested in producing the human good for its people in a thin way will merely want to set up a fair (legal) framework within which its people can, singly or in groups, pursue their own notions of the thick human good, as long as the limits of security and public order mentioned in Article 29 are not violated. This sec­ tion will show that when it comes to religion and education the Universal Declaration takes a remarkably thin approach to the delivery of the human good. This thin ap­ proach applies equally to members of both minority and majority groups. However, it goes without saying that in practice members of minority religious and ethnic groups find themselves reflecting on and needing to invoke these rights more frequently. Article 1 8 : The Rights of Members of Religious Communities

The thin approach to the delivery of the human good is evident in Article 18 of the Declaration, for it is governed by the underlying idea that a plurality of religious and secular ideologies should be able to live peacefully under the security umbrella of a single state. As far as the drafters were concerned the state does not have the task of delivering the good of religion to its people other than providing the framework within which each person or group is free to practice a given religion. For the late 1940s this thin approach was very progressive, for even the good (by standards of the Declaration) constitutions of that era took at best a mixed approach. That approach was a thick one in that many of them made allowances for a majority religion or for one sponsored by the state, but the best ones were also thin in that they gave members of minority religious groups total freedom to practice their own religion within this framework of an official, dominant, or preferred religion.21 Because it does not share this mixed and therefore ambiguous perspective and is thin without qualification the Universal Declaration was in matters of religion way ahead of its time. In the granting of rights to practice a religion, the Declaration does not regard majority or minority status as a relevant factor. A person who belongs to a dominant religion has no religious rights that a member of a minority religion does not have. The document is neutral with respect to matters of religion, just as it is on issues of

260

Chapter 7

gender. Instead of presuming there to be a state-sponsored religion, Article 18 says that every person, of whatever religious or secular persuasion has "the right to free­ dom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in pub­ lic or private, to manifest his religion or belief in teaching, practice, worship and observance." All this article does is set up the framework within which each person is free to pursue the thick human good of religion in his or her own way, alone or with others of like mind and heart. It was in order to create such a framework for pluralism that in the First Ses­ sion of the Drafting Committee the delegates preferred a rather long and detailed British proposal over Humph rey 's much shorter one. That short one simply stated that "There shall be freedom of conscience and belief and of private and public worship" (AC.l/3). The longer British proposal included everyone's right "to change his belief," to "practice either alone or in community with other persons of like mind, any form of religious worship and observance" and "to give and receive any form of religious teaching and to endeavor to persuade other persons of full age and sound mind of the truth of his beliefs, and in the case of minors the parents or guardians shall be free to determine what religious teaching he shall receive" (AC.l/3/Add. 3). This article set the precedent for all the details we have in the final product. Malik captured the spirit behind these details when he urged that "the Committee recognize the fundamen­ tal right of differing fundamental human convictions, as in religion, to exist in the same national entity. The fact that a single nation is obligated by international law, to recognize the diversity of fundamental points of view on ultimate matters should, he believed, be considered an essential and fundamental right" (SR.Bjp. 13). Malik therefore suggested that the first paragraph of the article read: "Individual freedom of thought and conscience to hold or change beliefs is an absolute and sacred right" (SR.l3jp. 19). This first sentence was adopted by the Committee, included in the Cassin rewrites , and from there sent to the Second Session with a second para­ graph stating that "the practice of a private and public worship, religious observances, and the manifestations of differing convictions, can be subject only to such limita­ tions as are necessary to protect public order, morals and the rights and freedoms of others" (21/p. 77). Geoffrey Wilson, the U.K. delegate, wanted the right "to give and receive every form of religi ous teaching" stressed more Shan it was in the Cassin re­ writes or in the version adopted by the Committee (SR.l3jp. 20). A note to that effect was appended to the Committee's report. This right to teach others found its way back into the Declaration in the Second Session of the Commission. Under sp onsorship of Carlos Romulo of the Philippines, the Second Session adopted this second paragraph: "Ever y person has the right either alone or in community with others of like mind and in public or private to manifest his beliefs in worship, observance, teaching and practic e " (SR.37jp . 15). In these ways the very structure of Article 18 is one of plurali sm and openness to different perspectives. Against this background, and because the article stresses reli­ gious rights so much, it comes almost as a shock that the article does not explicitly state that pe op le have a right not to join a religious commu nity and not to have any be­ liefs related thereto. Bogomolov, the delegate from the USSR, raised this issue in the Working Group of the Second Session. He argued that "in countries where the church

Duties and Communities

Z61

was separate from the State, religious teaching was a private matter. Furthermore, such an article should grant freedom of conscience not only for the practice of reli­ gion, but also for anti-religious propaganda" (SR.6jp. 7). Roosevelt responded that "it had been understood in the Drafting Committee that the first paragraph of article 20 [18] covered full freedom of conscience for believers as well as atheists" (p. 11). That is true, but, given the way Article 18 is written, an explicit statement to this effect would have removed any lingering doubts about the matter. Emile Saint-Lot of Haiti made the same point during the much later Third Committee debates. In "the name of the great mass of free-thinkers," he observed that the drafters of this article had made an attempt "to proclaim not only freedom of belief, but also the right of the individual to change his belief. There was therefore ground for astonishment that its authors had not thought of making it sti11 clearer by affirming the right not to believe" (p. 399). This right to be an atheist and all that that entails is, of course, part of Article IS's right to "freedom of thought," which at first was not placed first. Its present place­ ment before "conscience and religion" is therefore significant since it embraces the other two, while they do not embrace it, not religion in any case. Also, the very pres­ ence of the freedom of thought raises an important issue, especially for members of minority groups. At one point in the Third Session Malik, probably as a matter of oversight, had left the item "thought" out of the article's first sentence. Pavlov pointed that out and Malik agreed to put it back in. As a way of getting the item readmitted, Cassin rhetorically raised the question as to why anyone should want or need to have the human right to freedom of thought. "It might be thought," he asked, "why free­ dom of inner thought should have to be protected even before it was expressed." Are people not always free to think what they want, and don't the limitations only arise when they want to express what they think? Cassin answered that "the opposite of inner freedom of thought was the outward obligation to profess a belief which was not held. Freedom of thought thus required to be formally protected in view of the fact that it was possible to attack it indirectly" (SR.60jp. 10). Behind this seemingly innocuous right lies the profound right not to be compelled to profess a belief or ideology which one does not hold. This is an enor­ mous protection for members of minority groups, for there are numerous situations and nations where they are forced to profess a religion or ideology they do not hold in order to obtain or keep a job, acquire a marriage license, be able to vote or to change domiciles. Cassin later suggested that since "thought" had this deep metaphysical sig­ nificance it should be listed first, which was done. Some constitutions in the late 1940s protected their citizens against violations of this right. Thus Article 8 of the Portuguese constitution said that "no one shall be compelled to answer questions concerning the religion he professes unless for statisti­ cal inquiry prescribed by law." 22 Article 4_9 of the Swiss constitution said that "freedom of faith and conscience shall be inviolable. No one shall be compelled to take part in any religious society or in any religious instruction, or to undertake any religious act." Similarly, the Spanish constitution stated that "no one may be compelled to make offi­ cial declaration of his religious views." In Chapter 1 's section on the eight abstentions we saw that after much struggle the Third Committee voted to keep the right to change one's religious convictions in the Declaration. This was done over the strong objections of Muslim de le g ations an d

262

Chapter 7

led Saudi Arabia to abstain in the final vote on the De claration. The discussion of that right involved problems of proselytism and the behavior of missionaries in foreign countries. These problems in turn led some delegations to think that people have a right to be protected agains t fanaticism, especially if the fanatics are in the m�ority. Accordingly, the Swedish delegation submitted to the Th ird Committee the following rationale and amendment: "In order to protect individuals who have religious be liefs different from the officially acknowledged religion , or who have no religious belief whatever, against manifestations of religious fanaticism, it is proposed that the follow­ ing words be added to the end of this artic le after ' . . . worship and observance': 'pro­ vided that this does not interfere u nd u ly with the personal libe r ty of a nybo dy else' " (AjC.3/252). This amendment was not dis cusse d much, but its proposal did draw out I more of the meaning of Article 18. Alexander Contoumas, the Greek representative, also was worried about "the unfair practices of proselytizing" and said he "understood that the representative of Sweden shared his appre hensions to a certain extent. But he felt that the danger of such unfair practices was a threat, n ot only to the minority groups of a given country, as Lindstrom had indicated, but also to the religious majority. While admitte d ly every person should be free to accept or reject the religious propaganda to which he was subje c ted , he felt that an end shoul d be p ut to such unfair competition in the sphere of religion" (p. 394). Dehousse, the Belgian delegate, in qu ire d about the exact i mplic ation of the amendment pre s ented by the delegatio n of Sweden, wh ich he said "seemed vague both in conception and in form. What, precisely, was, in the field of religion , the meaning of the phrase 'interfere un duly with the personal liberty of anybody else'? In professing or propagating a faith, one could, to a certain extent, interfere with the freedom of others by seeking to impose an unfamiliar idea upon them. But proselytism was not limited to any one faith or religious group. If it was an evil, it was necessarily an evil from which all sides had to suffer. " He could not acc ept the amend ment "as long as its exact intentions were not clear" (p. 395). Aquino of the Philippines "share d the anxiety of the Swedish delegation to ensure effe ctive protection for the individual from the manifestations of rel igious fanaticism. It was obvious that so long as attempts at religious p ro selytism remained within the limits of public order, freedom of though t was not threatened: quite on the contrary, the free exchange of religious ideas was one of the healthiest signs of freedom and democracy. But when religious action left the realm of pure thought , it might constitute a threat from which human society must be protected. H is d elegation th ought , however, that the basic text contained all the guarantees desirable" (p. 396). Carlos Garcia Bauer, a del e gate from Guatemala, als o though t that the Swedish amendment "was superfluous" because "article [29] . . . gave all the necessary guarantees in that resp ect" (p. 402). Ulla Lindstrom , the Swedish delegate, sough t to answer these re d undancy objec­ tions, saying th at "similar observations , . . had been made in connexion with other articles and that, in some cases, it had been decided that it was necessary to reiter­ ate principles that had already been stated," which is why she wished to maintain her amendment (p. 403). It was rejected by 2 7 vo tes to 10, with 7 abstentions. As one last point on the matter "of religion I remind re aders that "religio n" is on ·

Duties and Communities

Z65

the list of nondiscrimination items in Article 2. It is difficult to overestimate the impor­ tance of its presence on that list. It means that in the implementation of all the articles in the Declaration discrimination of "any kind" on the basis of religious affiliation or thought is strictly prohibited. The only qualification is the one in Article 29 about "the rights and freedoms of others and of meeting the just requirements of morality, public order, and the general welfare in a democratic society." These limits hold for everyone, members of majority and minority groupings alike. They have all of the rights in the Declaration and they may not be barred from the enjoyment of such rights as to food, life, a fair trial, physical security, ajob, and all the others listed. In short, what Article 18 does for everyone's right to practice his or her own minority religion, Article 2 does for all the other areas of a life lived as a member of a religious minority group. Take, for example, Article 21's right to take part in the government of one's country. Both the prohibition in Article 2 and the detailed contents of Article 18 say that this participation is to be an equal one. The Declaration rejects every connec­ tion between religion and politics. It does not allow for a state-supported religion, not even for a tacitly dominant one. There is no presumption in the Declaration that the morality of human rights requires any kind of religious foundation. I explain in the first section of the next chapter that the drafters went out of their way to avoid having the Declaration make a reference to God or to man's divine origin. Most groups and nations that see an intimate connection between religion and the machinery of the state do so because they think that religion is needed to provide the moral cement that holds a nation together. The Universal Declaration rejects this connection and gives everyone total freedom of religion, including the right not to have one. It places the religious convictions and expressions of all persons on the same equally distant footage from the seats of political power. Article 2 6 (3) : The Prior Educational Rights of Parents

Article 26 of the Declaration has three paragraphs. The first one is about the scope of everyone's right to an education, which it says is to be free and compulsory in the early years and available to all on the basis of merit in the later years. The second paragraph deals with the content of that education, which it states should be "directed at the full development of the human personality" and done in the spirit of the United Nations. The first two paragraphs are important and I discussed them in section 3 of the pre­ ceding chapter. All I shall say about them now is that they do not conflict with what I claim is the thin involvement on the part of the state implicit in the third paragraph, which is the topic for the remainder of this section. Since all parents are hereby given the right to set up their own kind of educational institution, that right also belongs to parents who happen or want to be members of linguistic, religious, or ethnic minority groups. The third paragraph sets aside ultimate questions about the human good in education as the prerogative of parents. It states: "parents have a prior right to choose the kind of education that shall be given to their children." In his first draft Humphrey had two articles that dealt with education rights. H21 stated that "Everyone has the right to establish educational institutions in conformity with conditions laid down by the law" (AC.l/3). Its inclusion in the Declaration was

264

Chapter 7

sponsored by Chang of China (SR.4jp. 7). In a real sense this article is the forerunner of the third paragraph with its priority parental right. Humphrey's second article on education was H36, which roughly covered Article 26's first two paragraphs (AC.l/3). When Cassin rewrote the Humphrey draft he ignored H21 and its right to set up an educational establishment of one's liking. I do not think that this was an over­ sight, as Cassin's views were more state-centered. This deletion was not rectified until the third paragraph of the article was added in the Third Committee, the penultimate drafting stage. Attempts at reinstatement of this right and rebuffs of those attempts make up the drafting history of this paragraph. Possibly noting the gap created by the deletion of Humphrey's Article 21, Roose­ velt proposed to add to the Cassin rewrite the words "without exclusion of private educational facilities or institutions" (SR.l4jp. 9). She was supported in this by Charles Malik, the representative of Lebanon. But Cassin was opposed to the addition. He thought that "private institutions should not be mentioned specificaUy but that a com­ mentary be added to line 1 which would leave nations free to establish educational systems in accord with their respective systems." Koretsky, the Soviet delegate, also "was not in favor of the additional provision relating to private institutions" (p. 10), Wilson, the U.K. representative, felt that his proposed wording ("Primary education is obligatory for all children and adequate facilities free of charge shall be provided by the State") also left the establishment of private institutions an open question. Roosevelt, as chair, asked Harry, the Australian delegate, to redraft the article on the basis of what various members had said. Harry did that in such a way that he tipped the text in the direction of a state-centered system. His first sentence said that "Every­ one has the right to education at the expense of the State or community in which he resides" (SR.l5/p. 1). This state-centered slant led Roosevelt to ask "whether or not it was the consensus of opinion that any reference to private educational facilities and institutions should be omitted. Speaking as a representative of the United States she declared herself in favor of including a clause to this effect." Apparently speaking for most of his colleagues, Santa Cruz, the Chilean representative, "expressed his satisfac­ tion with the new draft." 28 (Later on the United States was to totally reverse its stand on this issue.) In the Working Group of the Second Session Bogomolov, the USSR representa­ tive, stated that the article "should define more clearly the part played by the State in all grades of education. . . . In many countries," he said, "including his own, the church was separated from the State, whose responsibiliti�s were therefore limited to education of a non-religious and non-sectarian character. This duty should, however, be clearly defined by the Article, so that education would be conducted on democratic lines and directed in the spirit of struggle against fascism and the horrors of war" (SR.Bjp. 4). Because Roosevelt "liked to see a reservation made as a commentary safe­ guarding the right of private education" the Working Group adopted the following commentary with a vote of 4 to 1, with 1 abstention: "In such countries as desire it, the right of private education will be respected and religious education shall be permitted in the schools" (p. 6). Both the Second Session of the Commission and the Second Session of the Drafting Committee adopted the article with this note attached.14 In the Third Session of the Commission the choice was between a very brief India-U.K.-sponsored article ("Everyone has the right to an education") and one with

Duties and Communities

265

most of the details in the final version (99jp. 8). Manuel de Jezus Quijano, a delegate from the Philippines, thought it was necessary to include all the details about how the state was to implement the right to an education since the Declaration was designed to "establish the rights of the individual" and not the obligations of states (SR.67jp. 10). In a complete reversal of its previous position, the United States also submitted a very short article that left the question of private schools wide open: "Everyone is en­ titled to the right to free fundamental education and to equal access on the basis of merit to higher education." 2& One problem with such a short article is that it says next to nothing about the con­ tent of education. For that reason, Malik of Lebanon "stressed the need to exclude the possibility of situations in which dictators had the power to prevent parents from edu­ cating their children as they wished. Control of education could not be left entirely to the discretion of the State; parents should be allowed the freedom to determine the spirit in which they wished their children to be brought up . . . . The Commission was duty bound to guard against the possibility that the education of future generations could be poisoned by doctrines opposed to the letter and the spir it of the Declara­ tion" (SR.67jp. 15). Catherine Schaefer, the representative of the International Union of Catholic Women's Leagues, "observed that the 2 articles [on education and culture] failed to mention the fundamental right and responsibility incumbent upon parents to educate �heir children as they saw fit. If that right were not stated in the Declara­ tion, there might well be a recurrence of situations such as that which prevailed in Germany under Hitler" (p. 16). The introduction into the debate of the Nazi poisoning of pupils' minds alerted the delegates to the danger of unqualified state control of the educational process. Because of that fear some delegations were not at all sure that the word "compulsory" should be used in the first paragraph, for that word might open the door to totalitar­ ian practices. Pierre Lebar, the representative of UNESCO, tried to calm these fears with the observation that the phrase "free and compulsory education" had become traditional in all countries. He pointed out that "compulsory did not mean that the State exercised a monopoly over education, nor did it infringe on the rights of par­ ents to choose the schooling facilities they wished to offer their children" (SR.60jp. 8). In the end, the deletion of the word "compulsory" was rejected by 8 votes to 7. Mter the vote, Malik remarked that his delegation had voted against the inclusion of the word "compulsory" "lest it be interpreted as making it imperative for ch ild ren to be sent to schools designed by the State. Now that the word had been approved the Lebanese amendment was all the more necessary" (SR.68jp. 9). That amendment gave two choices for an addition: "Parents have the primary right to determine the educa­ tion of their children" or "This does not exclude the right of parents to determine the education of their children." These additions, he said, were designed to "guarantee the right of the family to determine the education of its children, but not to prevent such education" (p. 9). Schaefer "appealed to the Commission to adopt the first of the two versions submitted by the Lebanese representative" (p. 9). Still in total reversal of its previous position on this issue, the United States de­ clared itself opposed to the Malik amendment. Roosevelt said, "The obligation of the State to provide free and compulsory education meant that children had to attend school, but not necessarily the school provided by the State . . . . The choice of school

266

Chapter 7

was left open to the parents." She urged the Commission not to get into the ques­ tion of what the state should provide to nonpublic schools (p. 10). Malik thanked the U. S. and UKSSR d elegates for their explanation that the Commission's text did not deprive parents of the r ight to choose the school to be attended by their children. That bei ng the case, he sai d he did not see why any delegation would object to the Lebanese amendment wh ich s imply wanted "to safeguard that right by stati ng it ex­ plicitly" (p. 10). He was supported by Lebeau, the Belgian representative. But Fontaina of Uruguay and Metha of India "thought it repetitive," while Klekovkin, the UKSSR delegate, wanted to see the addition in a different place in the article. The Lebanese amendment was rejected by 10 votes to 3, with 1 abstention (p. 11). This transferred the battle over A rti cle 26's third paragraph to the Third Com­ mittee drafting stage. The Third Committee received three amendments on this issue. The Lebanese amendment was the same as the one quoted above: "Parents have a pri­ ority right to choose the kind of education that shall be given to their children" (A/C.3/ 2 60). The Dutch delegation wanted to add: "The primary respons ibility for the education of the child rests with the family. Parents have the right to determine the kind of education their children should receive" (A.JC.3f263). This article was not as concise as the Lebanese one, which is why the other was adopted .26 Denmark proposed: ·�n persons belonging to a racial, national, religious or lingu istic minority have the right to establish their own schools and receive teaching in the language of their choice" (AJC.3f250). This amendment was the Danish way of maki ng good on a promissory note that that delegation had handed out in an earlier discussion in the Sixth Committee when it had voted against an article on cultural ge nocide because the Genocide Convention was not the right place for it, whereas the Universal Decla­ ration was,27 This Danish amendment was withdrawn shortly after it was propose d and resubmitted later when the Third Committee came to discuss the adoption of a sepa­ rate article dealing with the rights of members of minor ity groups. Beaufort, the Dutch delegate, gave a long opening statement on behalf of the Dutch and (by extens ion ) the Lebanese amendments: He pointed out that it was logical that the family should be given primary responsibility for edu­ cation because it was in the family that the child first learned the methods of living within the community. . . . The rights of children were sacred because the child itself could not demand their implementation; parents were the most natural persons to do so . . . . Parents would be unable to bear the primary responsibility unless they were able to choose the kind of education their children should have. Nazi Germany, where Hitler Youth deprived parents of control of their children and provided an experience which should never be permitted to recur. (p. 582)

The Dutch amendmen t was not adopted, but its leaner Lebanese cousin was by 17 vote s to 13, with 7 abstentions (p. 605). The roll call shows the following dele­ gations voting for the Lebanese text: Argentina, Au s tralia, Belgium, Brazil, Chile, Colombia, Cuba, Denmark, India, Lebanon, Luxembourg, the Netherlands, Pakistan, New Zealand, Paraguay, the Philippines, and Sweden. Voting against were Afghan i­ stan, the BSSR, Ecuador, France, Mexico, Poland, the UKSSR, the USSR, the U. K. , the U.S., Uruguay, Venezuela and Yugoslavia. Present but abstai ning were Canada, China, Czechoslovakia, the Dominican Republic, Honduras, Peru, and 1\ukey. A few

Duties and communities

Z67

moments later the whole education article was adopted by 34 votes to none, with 2 ab­ stentions. Most of those voting in favor of the amendment had been impressed by the argu­ ment that recent Nazi abuses of the power of the state had to be thwarted. Shaista Ikramullah of Pakistan thought it "was essential to guarantee freedom to choose edu­ cation, a principle flagrantly violated by the Nazis . . . . The argument that parents might refuse to give their children an education was not pertinent because the article gave them only the right to choose the kind of education they wished, but not the right to withhold education from their children" (p. 584). Carton de Wiart, the Bel­ gian delegate, said that the Danish, Dutch, and Lebanese amendments, all of which made the same essential point, contained a very interesting idea. In effect the family had prior rights over the State, which it would be useful to recognize in one way or an other in a statement of principle such as article 23 [26] . The Netherlands representative had expressed the horror which the Nazi-occupied countries still felt at the thought that the State could compel children to be deformed morally and intellectually by the doctrine of the party in power. . . . It would in fact be an error not to retain the rights of the family in an article of such importance, especially as it could not be as­ sumed that the rights and duties of the State in the field of education had been disregarded by so doing. (p. 594)

Benigno Aquino, the Philippine representative, said he "would vote for the Lebanese amendment, which without giving excessive authority to the parents gave them the right to decide the type of education which they wished their children to receive. That provision would provide protection against the risk of undue interven­ tion by the State in the sphere of education" (p. 593) . Just before the vote Azkoul, the Lebanese delegate, sought to win over some of the doubters by making the point that his third paragraph would serve as a balance to the power that was given to the state in the first paragraph. "It was important to proclaim the rights of parents. By stating that education was compulsory, the state would be authorized to force parents to send their children to school. Were the parents not entitled, on the other hand, to select the school to which they would send their children and the type of education they intended to give them? The Lebanese amendment," he said, "was intended to simply assert that right" (p. 598). That is precisely what the Communist delegations objected to; they did not share the Dutch/Lebanese mistrust of the power of the state. Mter Pavlov, the USSR dele­ gate, told his usual success story about life in the Soviet Union, he went after the heart of the Dutch/Lebanese effort. Unlike some other delegates, he "could see no reason to omit the word 'compulsory.' A child had an absolute right to education, in­ dependently of the wishes of its parents. Education should be compulsory because a child could not claim the right as it had no strength to defend it" (p. 598). Leonid Kaminsky, his colleague from the BSSR, also stressed the importance of this article. He interpreted the proposed priority right of parents as a restriction to which he was opposed because "the culture and intellectual development of all peoples were in fact based on education." 28 And therefore children's rights should not be left primarily in the hands of parents.

Z68

Ch11pter

7

Three North Atlantic nations voted with the Communist opposition to the third paragraph. Corbet of the U.K. said "she opposed the Lebanese and Netherlands amendment; the basic text did not exclude parents from the right to choose their chil­ dren's education. Also, a specific mention of the rights and duties of the family was inappropriate in a declaration of universal rights," to which Beaufort took strong ex­ ception." 29 After the vote Corbet added the even weaker explanation that the United Kingdom had voted against paragraph three "not because she had any objection in principle, but the English text did not seem sufficiently clear. She would have pre­ ferred the expression 'prior right' to that of 'priority right' which appeared in the present English text" (p. 606). We do indeed have this minor adjustment in the final product. In his statement on these amendments Cassin gave with his right hand what he took back with his left and his vote. He thought the amendments raised "a delicate problem" and said that French legislation "coincided" with the positions taken in them. His delegation "would vote for the amendments were it not that it feared, as did the UK representative, to impose a one-sided viewpoint on nations which thought differently. Mr. Cassin pointed out that there was nothing in paragraph 1 that threat­ ened the freedom and rights of parents" (p. 586). Toward the end of the discussion and near the voting point Cassin introduced a last minute proposal, which he said covered all the points except that the only principle which he had not taken into account was that upon which the Netherlands and Lebanese amendments were based. That did not mean that he attributed no importance to it. He had, however, been struck by the fact that countries such as France, the United States and the United Kingdom, which recognized that parents had the right to freely choose the kind of education they wished their children to have, had not proposed that that p rinciple be Inserted in article 23[26] . The matter was indeed a very delicate one which could not be decided hastily It would be preferable not to raise it. Thus leaving every country free to maintain its own tradi­ tions. (p. 586) .

Instead of insisting on the mention of private educational institutions, as she had done at the start, Roosevelt now argued that the text in no way opposed the existence of private schools. . A number of delegations were anxious that the right of parents to govern the education of their children should be explicitly mentioned. Though most systems of education took that right into account, it was difficult, she felt, to state the right explicitly, since It was also necessary to take the interests of the children and of the State into account. The amendments suggested were designed to avert situ ations such as prevailed in Nazi countries where education, which was e nt irely u nder state control, tendei:l to atrophy children's intellec tual faculties. No object could be of more legitimate con­ cern, but the provisions of article 23[26] were drafted with a p recision which left no opening for misunderstanding. Moreover, if article 23[26] made specific mention of the right of parents to control the education of their children it might be interpreted as giving them the right to super­ vise school curricula, which clearly might have undesirable consequences. On that ground the US delegation would vote agains t the amendment submitted." (p. 600) .

.

This was a remarkable about-face for a delegation that had repeatedly insisted that private institutions be mentioned explicitly. The argument that the third paragraph would lead parents to meddle in the cur-

Duties and Communities

269

riculum did not really deserve a response, but Beaufort gave one anyway. "The Nether­ lands amendment was not in any way aimed," he said, "at enabling parents to inter­ vene in drawing up school syllabi." Roosevelt's more general point about there being no need to state the rights of parents because they were implicit was better aimed. To that Beaufort's response was that "the inalienable right of parents" to choose the education of their children should be explicitly mentioned because "during the last war it had been violated, with dreadful consequences" (p. 598). Roosevelt's point that the Nazi experience was an exception and that the De�laration should not be aimed at those exceptions would, if generalized, void the entire project of meaning. Because these are weak answers for voting against the Lebanese amendment we are entitled to suspect that either worries about money or about minority cultural rights played a role in the shift of the U.S. position. I do not think it was money.30 7.4 The Omission of a Special Minority Rights Article

The ethnic analogue for Articles 18 (on religion) and 26 (on education) is Article 27 of the Declaration, which deals with participation in culture. This article was exten­ sively discussed in the preceding chapter (6.3) and we return to it only in order to discuss the protection of members of ethnic or cultural minority groups. In terms of the thick and thin terminology explained at the start of the preceding section, it would seem that in Article 27 the drafters took the thick approach to the delivery of the human good. While in the articles on religion and education the drafters showed great understanding for members of minority groups, Article 27 does not exhibit a similar appreciation of the diversity of cultural traditions. The double use of the definite article "the" in the first paragraph is ground for suspicions: "Everyone has the right freely to participate in the cultural life of the com­ munity, to e�oy the arts and to share in scientific advancement and its benefits." The article does not say, as it might have, that everyone has a right "to participate in the cultural life of his or her community." This pluralistic wording would have allowed for the possibility and the likelihood that being a citizen of a certain state and participat­ ing in the cultural life of one's community are for some people not one and the same thing. Instead, Article 27 seems to assume that "the community" one participates in and with which one identifies culturally is the dominant one of the nation-state. The�e is no hint here of multiculturalism or pluralism. As phrased, the article blurs a line communitarians like to see drawn between the state as a political entity and the nation or community as a cultural unit.81 With this kind of division of labor between the task of the state and the benefits of community, Articles 15 and 21 of the Declaration should and do deal with citizenship and partici­ pation in government- that is, politics- and Article 27 should- but does not- deal with the right of everyone to participate in the cultural life of his or her ethnic or cultural community or nation. For some citizens this cultural life is that of the domi­ nant group, nation, or community within the state, which means that their culture is probably the one that informs the policies of the government. For others this cultural life is the life of a religious, ethnic, or linguistic minority, whose members are loyal citizens of the state, but who do not find their identities fed by the dominant culture that informs state structures.52 The problem with Article 27 is that it does not seem to

270

Chapter 7

acknowledge that there is a difference between these two ways of relating to the ma­ chinery of the modern state. The question of what constitutes a "minority group" had first come up in the First Session of the Commission when it established the Sub-Commission for the Pre­ vention of Discrimination and the Protection of Minorities. In his report on that issue, Humphrey defined the term "minorities" as referring to "groups within a coun­ try that differ from the dominant group in their culture, religion or language, and which usually desire to maintain and foster their cultural, linguistic, and religious identity" (W.5jp. 2). He pointed out that the expression "protection of minorities " would normally "include both protection from discrimination and protection against assimilation" (p. 3). He also pointed out that there were "historical precedents for the protection of minorities against assimilation, both in national and international law. States like Belgium, Canada, Finland, South Mrica, Switzerland, and the Union of Soviet Socialist Republics ha[d] established constitutional guarantees for the protec­ tion of linguistic and religious minorities" (p. 2). We saw in the preceding section how much Articles 18 (on religion) and 2 (on nondiscrimination) cover. There is not a single right stated or implied in the Dec­ laration which is granted to members of majority religious groups that is withheld from members of minority religious groups. In other words, the addition of a sepa­ rate article protecting the rights of members of religious minority groups would have made very little difference for members of these groups. They already have whatever rights such an article could have given them. The real interest in the adoption of a minority rights article lies in the other two defining characteristics Humphrey men­ tioned, ethnicity and language. While the minority rights article (to be discussed) speaks of cultural, religious, and linguistic differences, the drafters' real interest and real reason for rejecting that separate article had to do with ethnicity and language. A good lobby might have made the vote go the other way. In the First Session several delegates-some of whom were later to turn against the article -made positive comments about the need to protect members of minority groups. Metha, the delegate from India, made reference to "the case of Indians, Chi­ nese, japanese and other peoples scattered in the world," all of whom needed to be defended "against the danger of assimilation" (AC.lfAdd.lfp. 380). William Hodgson of Australia rhetorically asked what was meant by the phrase "Human Rights" and then answered: "we refer to, or we have in mind minorities" (p. 380). Romulo of the Philippines was of the opinion that "the bill of rights, should take into account . . . the rights of minority groups within the state" (p. 380). With this support ringing in his ears, Humphrey prep are d his first draft. The very large m�ority of constitutions in the late 1940s contained no special article dealing with the rights of members of minority groups, the clearest exceptions being those of China and Czechoslovakia.55 And only four of the dozen or so drafts Humphrey had collected contained any kind of provision protecting minority rights: Wilfred Parsons's draft, the draft of the American Association for the United Nations, the one by the Institut de Droit International, and the one proposed by Lauterpacht.54 Humphrey borrowed most of his ideas for articles from the proposals the United Nations had received from certain Latin American delegations (see 4.1). It is therefore signifi­ cant to note that none of these drafts contained an article on minority rights and

Duties and Communities

271

that Humphrey went to the Lauterpacht draft for inspiration.35 He quoted Lauter­ pacht's article in his report to the Commission and-with two minor changes -used it as Article 46 in the draft he submitted to the First Session of the Drafting Commit­ tee (AC.1/3). This LauterpachtjHumphrey article is substantially what was adopted by the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. I quote it below. In his rationale for the adoption of H46 Humphrey quoted Lauterpacht's obser­ vation that "the abandonment of the present [League of Nations] system of protection of minorities, without an alternative and compensating international arrangement, would mean a disservice to the minorities, to the cause of international protection of human rights and international peace and progress" (W. l6fp. 7). Having witnessed the horrors of "ethnic cleansing" ourselves, we can readily grasp the American President Wilson's comment of May 1919 that "nothing was more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to minorities." 36 When the global powers redrew the map of Europe and thereby created certain religious, ethnic, and linguistic minorities, the American president was one of the key supporters of the League's minority treaties. All in all, seventeen countries were affected in fourteen treaties.s7 But this League system failed because it had an inadequate machinery of implementation and-as a last straw- because Hitler used it as a pretext to invade Poland. In reaction to these failures the United Nations Charter totally ignored the "prob­ lem" of minority peoples and (as we saw in Chapter 3) focused on the more general principle of nondiscrimination instead.38 It was Lauterpacht's and Humphrey's hope that perhaps the Universal Declaration could correct this blindness of the Charter and universalize the individual League treaties. The LauterpachtfHumphrey article received a positive reception in the First Ses­ sion of the Drafting Committee. The "inclusion of the substance of Article 46 was sponsored by Dr. Malik (Lebanon)" (SR.4fp. 10). There was no discussion. In his first rewrite of the Humphrey draft Cassin did not include H46, but in his second rewrite he did include it. At that time he told his colleagues that he considered his Article 39 (H46) "one of the most important Articles as the prevention of discrimination should be emphasized in the Declaration" (SR.15fp. 6). He had made three substan­ tive changes to the article, which he did not explain, and suggested that it be "referred for further study to the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities" (p. 6). Santa Cruz, the delegate from Chile, probably spoke for other Latin American delegations when he remarked that "many countries of America had been created by immigration . . . and that the form and substance of this Article called for the most careful consideration" (p. 6). But he did not call for an outright rejection. Wilson of the U.K. also was not sure about the language of the article. He believed that "when the time was ripe, something along the lines of the draft Article should be included in the Declaration." Even so, he did not want to refer the article to the new Sub­ Commission "as it would then carry the endorsement of the Drafting Committee" (p. 6). "The Chairman thought that a footnote might be attached to the Article saying that this was a draft based on the Secretariat draft" (p. 6). Malik, who had sponsored the article, "did not object to referring this Article to the Sub-Commission for further

Z7Z

Chapter 7

study, but [he] insisted that the idea should be inc luded in the Declaration" (p. 6). No formal vote was taken and the article ended up in the Sub-Commission on the Pre ­ vention of Discrimination and the Protection of Minorities. This Sub-Commission had on it delegates from Australia, B elgium, China, Ecua­ dor, France , Haiti, India, Iran, Sweden, the USSR, the U.K ., and the U.S. These dele­ gates made very few changes in what was al re ady a good ar ticle. They added the word "s ecur ity" after the word "order" and restored the ph ras e "in the Press and other pub­ lic ass e mbly, " which Cassin had removed and the Drafting Committee had also left out. By 6 votes to 4, wi th 2 abstentions the Sub-Commission adopte d this bas ic ally Lau terpachtjHumph rey text: "In states inhabited by a substantial number of p ersons of a race, language, or rel igi on other than those of the maj o r ity of the popu lation, per­ sons belonging to such ethnic , linguistic, o r re ligious minorities shall have the r igh t , as far as compatible with p ubl i c order and s ecuri ty to establish and maintain schools and cultural or re ligious institutions and to use their own language in the Press, in public as se mbly and before the courts and other authorities of the State" (E/CN.4j52/p. 9). The Working Group of the Second Session received this ar ti cle toget her with a strong statement about what the Sub-Commission understood the ph rase "prote cti on of mi­ norities" to mean.39 The Second Session passed the ar ticle on to its Worki ng Group on the Declaration.40 This Worki ng Group had the foll owing members: chairman, Roosevelt (U.S.), rapporteur, Cassin (France), Stepanenko (BSSR), Amado (Panama), Romulo (Philip­ pi nes) , Bogomolov (USSR), and Hepp el (U.K.), who attended as an observer (5 7jp . 1). Given that the two Communist members and the one Philipp ine dele gate were strong supporters of a minority r igh ts article, that Cassin had said it was one of the most i mportant articles in the Declaration, and that the sole Latin Ame r ic an voice was a muted one, we might have expec ted this Worki ng Group to adopt the Lau­ terp acht/Humph rey text it had receive d .41 The United States delegation was the sole strong opponent. Roosevelt stated that alth ough there were different ethnic and lin­ guistic groups in her country, "in the United States, there was no minority problem" (SR. 9jp . 17). Her delegation had submitted a draft declaration in which this article was omitted and its provisions housed und er the righ ts of other ar ticles, like the one on nondiscrimination and Article 2 7's r igh t to particip ate in the cul tural life of the community.42 The other de legate s suggeste d change s, but all of them approved of the article in concept. Cassin said that his country "had always be en an immigration country . . . [but that his] dele gation would vote for th e whole of Article 36, provi ded the word 'persons' was replaced by 'citizens of the countr y' " ( SR. 9jp. 19). This was accepted. Stepanen ko of th e BSSR complicated the discussion when he argued for the re­ instatement of p ubl ic funding of minority schools by li nki ng it to the "territorial au­ tonomy" of t.he groups involved.45 He in effect merged the wide r p roble m of min o rity groups with the narrower one of federalism, for not all minorities see t h ems e lves as nations claiming a territory (SR.9fp. 19). Bogomolov, his c olleague from the USSR, si milarly went off focus with his observation that "the Charter spoke of the obl igation to promote the develop ment of the peoples of non s elf- gove rning terri torie s towards independence" (p. 20). To both of these points Cassin resp onde d that there "were certain cou ntrie s where diffe ren t p eoples , Christians, Mohamme dans and Jews, had

Duties and Communities

Z73

lived side by side for centuries; as in North Mrica, for instance, and where such a [territorial] text would be inapplicable. There were some non self-governing or trust territories where, no doubt, a problem of self-government existed, but there was no minorities problem" (p. 20). Whether that last claim was true or not lies beyond our focus on the Declaration, but Cassin's main point was on target. He saw correctly that the LauterpachtjHumphrey text had stayed clear of both the federalism and colonial­ ism problems, which is why he was able to support it and why, had he been consistent, the article probably would have made it into the final product. Listening to this discussion and being worried about having articles in the Dec­ laration that were not "applicable to all States," Roosevelt proposed to delete "the whole of the text" (SR.9jp. 19). This was voted down and the "text of Article 36 was therefore retained." Mter this she put the Byelorussian amendment about funding to the vote. This too lost and the chairman "called for a vote on the text of Article 36, as proposed by the Sub-Commission on Minorities, in which the word 'persons' was replaced by the words 'citizens of the country' " (p. 20). At this point one can feel his­ tory slip through the fingers of one hesitant man. As I explained, the amended article would surely have been adopted by the Working Group. It had survived several tough tests and the members of the Working Group knew that they were free to offer other amendments at later drafting stages. Nothing was chiseled in stone. In spite of all this, "Professor Cassin (France) withdrew his amendment, since he considered that the text of this Article was not yet final and should therefore be held over" (p. 21). There are two interpretations of what this Cassin withdrawal meant. By ruling that it meant that the minority rights article had not been voted upon (since Cassin withdrew his amendment at the last moment) Roosevelt in effect ignored the earlier votes on her proposal to have the whole text deleted. Since her own proposal to delete it had been voted down, it is not unreasonable to suggest that that meant that the article was included. In fact, the minutes of the meeting indicate that the article was "retained." All the Cassin withdrawal should have meant was that the article would be passed on without the benefit of the French amendment that replaced "persons" with "citizens of the country." A chairman from a delegation more friendly toward the cause of minority rights might well have ruled this way. As it happened, the Cassin withdrawal was interpreted as meaning that the article was placed in limbo again and "held over." Both the amended Sub-Commission text and its Byelorussian substitute were annexed to the report that was sent to the Second Session. The Second Session did not discuss the article but "left it aside" since it had not been voted upon (SR. 40jp. 16). As was the case with three other articles the Work­ ing Group left in limbo, from now on its prospects depended very much on whether a certain delegation took a special interest in the rights at issue, which both the USSR and the Lebanese delegations did. The timing of these rehabilitation attempts overlapped with the 1948 United Nations debates that led to the adoption of the International Genocide Convention. Counting both the genocide discussions and the discussion on a minority rights article for the Declaration, these issues were discussed no fewer than seven times between December 1947, when the Second Session of the Commission ended, and Decem­ ber 1948, when both the Genocide Convention and the Universal Declaration were adopted.« Toward the end of its deliberations the Third Session of the Human Rights

274

Chapter 7

Commission received the report of the United Nations Ad Hoc Genocide Committee which included a draft of the Convention. This draft included an Article 3 that defined and prohibited cultural genocide.45 It is my contention that the negative mood in the Third Session of the Commission toward a minority rights article for the Declaration was caused by the worries that had been stirred up by these other discussions. Some of the delegations to the Human Rights Commission had shifted their positions away from support for a minority rights plank. Only the Lebanese delegation, which had supported Article 3 of the Genocide Convention, joined the Communist delegations in supporting a minority rights article for the Declaration. The strongest opponents came from the Americas." Roosevelt said that "provisions relating to rights of minorities had no place in a declaration of human rights" and that other articles covered what needed to be covered. By way of explanation she "pointed to the decision taken at the Lima Con­ ference in 1938 and reiterated in Chapultepec, that minority questions did not exist on the American continent" (SR.73jp. 5). Both China (an abstainer on Article 3) and India and the United Kingdom (opponents of Article 3) proposed that the minority rights article be deleted from the Declaration. Metha, the Indian delegate, agreed with the prevailing rationale. She "opposed the article as unnecessary," because "members of minority groups were protected as human beings by other articles of the Declara­ tion." 47 The Belgian delegate added the warning that Hitler had used the presence of German minorities in other countries as a pretense to meddle (SR. 7 3jp. 6). The Indian and Belgian delegations later reversed themselves and (again) became sup­ porters of the minority rights article. But that would be too little too late. A.j. D. Hood, the Australian delegate, said that the ideas of the Sub-Commission's article "went beyond the scope of the declaration" because it confirmed "rights upon groups as such." "While he did not question the wisdom of the policy of free develop­ ment of diversified groups in other ctmntries, [he] . . . pointed out that Australia had adopted the principle that assimilation of all groups was in the best interest of all in the long run" (p. 10). The representatives of Uruguay and France also spoke against inclusion. The French vote, like that of the U.K., represents a reversal taken from the support given to the LauterpachtfHumphrey article in the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. Mter this change all three of these nations never wavered in their opposition to the minority rights article. Both the USSR and the Lebanese delegations sponsored amendments to include the provision. The USSR delegation proposed: "Everyone has the right to his ethnic, national culture, regardless of whether he belongs to a minority or m�ority of the population. " Th roughou t all the discussions on the pro tec ti on of minorities there was no delegation more unwavering and consistent in its support than the Leban­ ese one. It sponsored the following text for inclusion: "Cultural groups shall not be denied the right to free development." Malik pointed out that the principle of as­ similation so successfully used in the West "did not appear to be applicable to many countries of Eastern Europe and Asia, such as India. Somewhere in the Declaration protection of distinct ethnic groups in multinational states should be mentioned," he said (SR. 7 3/p. 8).46 He received immediate support from Joza Vilfan, the represen­ tative from Yugoslavia, who said that his country "might be described as one state, with two scripts, three religions, four languages, five nationalities, six republics and

Duties and Communities

275

many ethnic groups" (SR. 7 3jp. 8). Responding to the earlier observation by the Bel­ gian delegate that Hitler had used the League treaties on minorities as a pretense for invasions, Vilfan countered that " the abuse of a right in no way detracted from the in­ herent value of the right," and that t he B elgian experience of "two distinct national groups" was a good lesson of how things could and should be done.49 The Third Session rejected both the USSR and the Lebanese proposals.50 The whole of the Sub-Commission's article was deleted with a vote of 10 to 6 (SR.74jp. 5). The word "delete" may be too strong, for it was a vote against reinstating some­ thing which many saw as already having been rejected. The burden of p roof had shifted away.51 Since the Third Session had voted not to include an article on minority rights, any hope for the article would have had to come in the form of proposals for addi­ tional articles made to the Third Committee. Three such were made. The Soviet Union resubmitted its version of the minority rights article as a substitute for "article 31 of the Geneva text rejected by the Commission." That Article 31 was the Lauter­ pacht/Humphrey one that had been "put aside" in the Second and Third Sessions of the Commission. The only real difference between the two was that the Soviet version included the cultural rights of m�orities, as well as of minorities. It read as follows: '�ll persons, irrespective of whether they belong to the racial, national, or religious m ajo rity of the population, have the right to their own ethnic or national culture, to establish their own schools and receive teaching in their native tongue, and to use that tongue in the Press, at public meetings , in the courts and in other official premises" (E/800). This being the fall of 1948, Stalin and Tito were no longer on friendly terms, which is probably why the delegation from Yugoslavia submitted its own proposals in­ stead of backing the amendment of the Soviet Union, which was the usual Communist procedure. The Yugoslav delegation proposed that three additional articles be added to the Declaration. The first article, called ·�." was perceived by the other delegatio ns to be addressed to the problem of federalism and for that reason rejected as inappropriate for inclusion in the Declaration.52 The second Yugoslav article, called "B," dealt with minority rights proper. It was not that far removed from the Lauterpacht/Humphrey original, except that it did not mention religious minority members explicitly. It read: ·�ny national minority, as an ethnical community, has the right to the full devel­ opment of its ethnical culture and to the free use of its language. It is entitled to have these righ ts protected by the State." I discuss below why this article was never voted upon. The third Yugoslav article, called "C.'' wante d to make " th e righ ts proclaimed in the Declaration also apply to any person belonging to the population of 'Iiust and Non-Self-Governing Territories." Mter the issue of minority rights had been decided against, the Third Committee voted to ad op t the article 16 to 1 4, with 7 abstentions (p. 346}.118 The Third Committee came to discuss C only after it had already decided not to vote on B and to send B and its competitors back to the Sub-Commission on the Prevention of Discrimi nation and the Protection of M i norities I b elieve that the order in which these two votes took place had an enormous influence on the shape of the Declaration. The Third Committee discussions on B and its competitors got mixed up in the problem of the colonies ( s ee 3.2), a problem at which article C was aimed. .

It is highly likely that if C had been adopted before B was discussed that the discus­ sion on B would have been far less acrimonious than it was. In that case some kind of minority rights article might well have been brought to the vote. The votes for adop­ tion were there, if only an effective lobbying effort had recruited them for the cause. Unfortunately, that lobby did not materialize. The third choice for the resurrection of the minority rights article was the amend­ ment proposed by the Danish delegation that had been put aside in the discussion on education: ·�n persons belonging to a racial, national, religious or linguistic minority have the right to establish their own schools and receive training in the language of their own choice." 84 This amendment was the redemption of a promissory note the Danish delegation had made earlier when the Sixth Committee of the General Assem­ bly had rejected Article 3 of the Genocide Convention. Several North Atlantic nations had voted against Article 3, giving the rationale that the place for this kind of pro­ vision was the Declaration.1111 Denmark was the only one that followed through on its promise ( Third, pp. 206-207 ) . Unlike their European colleagues the American delegations came from conti­ nents that had been spared Hitler's ethnic cleansings. They felt more free to vote and argue against a minority rights article in the Declaration, for they had made no promises to the effect that the right place to protect the cultural rights of minori­ ties was the Universal Declaration and not the Genocide Convention. Their argument was that immigrant groups might want to avail themselves of the rights spelled out in such an article and so threaten the unity of their countries and their respective poli­ cies of amalgamation. Austregesilo de Athayde, the delegate from Brazil, argued that "if foreigners were able to use their mother tongue in the schools, before the courts and in various other circumstances, immigrants would have no interest in learning Portuguese and in becoming assimilated as rapidly as possible into the Brazilian popu­ lation" (p. 7 21). Similar remarks were made by Santa Cruz, the Chilean delegate, by Jimenez de Arechaga, the delegate from Uruguay, and by Ralph Maybank, the Cana­ dian representative.11& At this point the Communist delegations committed a tactic al error. Instead of making common cause with Yugoslavia and Denmark and together with them sub­ mitting a joint amendment, which is what was usually done when amendments over­ lapped in substance but differed in wording, they attacked the colonial powers and sought to win over Latin American votes. Rather thari attacking �hese metropolitan powers about their colonial records they should have sought to make them live up to the promissory notes they had handed out when they had voted against an article on cultural genocide for the Genocide Convention on the grounds that the Declaration was a better place for such an article. The strategy the Communists did follow-that of attacking colonialism- did not help redeem these promissory notes. It placed the metropolitan delegates on the defensive and made them reluctant to take the Com­ munist side on this crucial issue of making special mention Qf the rights for members of minority groups. Besides the Danish vote, at least one other Western European delegation did not need to be told to vote its conscience. The Belgian delegate, Dehou11se, sought to addres s the North and South American criticisms with the ob11ervation that "the problem of minorities was distinct from that of immigration. The immigrant went to

Duties and Communities

277

establish himself in a foreign country and it was natural that he should submit to the laws of the country that received him; minorities, on the other hand, were histori­ cally constituted groups settled in one or more determined territories" (p. 725). The words "historically constituted" were crucial, and if they had been added to a reintro­ duced Sub-Commission text, that might have helped clarify the issues in the debate. The Sub-Commission's article would then have read like this: "In States [historically inhabited] by a substantial number of persons of a race, language, or religion other than those of the majority of the population, persons belonging to such [historic] ethnic, linguistic, or religious minorities shall have the right, as far as compatible with public order and security to establish and maintain schools and cultural or religious institutions and to use their own language in the Press, in public assembly and before the courts and other authorities of the state." Dehousse was supported by Menon, the delegate from India, who pointed out that "in her own province school examinations could be taken in four different languages" (p. 727). However, none of the amendments before the Third Committee incorporated the distinction Dehousse had drawn between historic and nonhistoric minority groups. And the three delegations that had proposed amendments did not synchronize their efforts to produce an update of the original Lauterpacht/Humphrey text. The rheto­ ric of the Cold War and its tensions prevented that from happening. Watt, the Australian delegate to the Third Committee, ignoring earlier sugges­ tions for improvement of the article by one of his own country's experts, observed that "Australia shared the point of view of the Latin American countries; it desired the dispersal of groups rather than the formation of minorities . . . [and it] would not be able to admit as a fundamental right the use before a tribunal of any language other than the national language." 57 In his response to Watt, Kaminsky, the Byelorussian delegate, went against the custom of the Committee and openly criticized the behav­ ior of other states. By doing that he probably lost some valuable votes of delegations that might have voted their consciences but did not want to be told to do so. Kamin­ sky said that the "individual's right to his own language and culture was one of the most important human rights" and that "it was impossible to ignore the fact that . . . Australia had carried out a policy of forceful elimination of its aboriginal groups and that the North American Indian had almost ceased to exist in the United States." He then went on to say that "in colonial territories too there were no signs that indige­ nous culture was being developed and encouraged. . . . Ninety percent of the people living in the British colonies were illiterate, for the development of culture and the colonial yoke were mutually exclusive" (p. 728). His point was reinforced by Abdul Kayaly, the Syrian delegate, who claimed that "in Mrica, the indigenous populations were still prohibited from using their own lan­ guages in primary and secondary schools, and were not even allowed to establish universities. That being so," he said, "it was the duty of the Committee to vote in favor of the individual's right to use his own language and have his own schools." He then added the proviso "that the individual would also be helped toward assimilation. There could be no question of granting the minority the right to interfere in national �ffairs" (p. 729). Ernest Davies, the delegate from the United Kingdom, retorted that the BSSR representative's "conception of the policies of the British empire . . . was rather out of

278

Chapter 7

date. There had been considerable progress in the colonies toward self-determination. No evidence had been pro duced that the use of Native tongues was being restricted in any British colony. . . . The United Kingdom delegation took the view that the dec­ laration already fully protected the rights of all minorities" (p. 731). Demchenko of the UKSSR reminded his British colleague of "a petition by Natives of Tanganyika complaining that a proposed law affecting their interests and ostensibly supported by them had not even been translated into their Native tongue . . . . [O]n the whole Natives were p revente d from using their language and developing their own culture. It was enough to cite the followi ng figures: on the Gold Coast 90,000 out of a popu­ lation of 3,500,000 Natives attended schools; in Kenya, the Government spent 500 times as much on each European child as on each Mrican child" (p. 732). Attacks like these, however much truth they contained, caused the colonial pow­ ers to stiffen their backs and withhold their votes. This is not to say that there was not also a fear that after the threat of Germanization they were now faced with the threat of Sovietization. The proponents of the article p robably made a tactical error by choos­ ing the examples they di d Examples from Eastern Eu rope and the Soviet Union or just from the Hitler experience would have made the point in a less pai nful manner. Demchenko ended his speech with the statement that "he opposed the Haitian draft resolution, which sought to evade a vital issue" (p. 732). He was referring to a Haitian draft resolution which had been submitted to the Third Committee the day that these discussions on the minority rights article began (p. 735). That resolution stated: .

The General Assembly, (1) Considering that the United Nations cannot remain Indifferent to the fate of minorities;

(2) Considering that it is difficult to adopt a uniform solution of this complex and delicate question, which has special aspects in each State In which it arises, [without endangering the national unity of the Member States and without creating a new source or cause of aggravation of the discriminations outlawed both by the United Nations Charter and by the present Decla­ ration;) 58 and (3) Considering the universal character of the declaration of human rights; ( 4) Decides not to deal [in a specific provision) 119 with the question of minorities in the text of the present·declaration; and to make a thorough study of the problem of minorities (AfC.3f373) (5) Requests •

.

.

.

.

.

This Haitian proposal was submitted long after the three amendments for the inclu­ s i on of a mi nority rights article had been received on time an d in good order. Never­ theless, Malik, who was in the chair, judged that this Ha it ian p rop os al dealt with a question of pro cedure and not of substance and th e refore would need to be voted upon before the three amendments. If this p rop osal passed, there would be no need to vote on any of the propos e d articles. That would mean th a t the nations who had g i ven promissory notes in the genocide debates would not be called upon to make g o o d on those notes. The avoidance of th is kind of a bind may well have been one of the motivations be h i nd the Haitian proposal. Indeed, the bracketed par t of paragraph 2 sugge s t s that Haiti served the i n tere s ts of a ss i m il a ti on i s t countries rather than its own , for just a week l ater it vo ted for a USSR amendment to insert a cultu ral geno cide article i n to the

Duties and Communities

279

Genocide Convention (p. 848). That Convention demanded far more than an article in the Declaration would. The proposal was voted on in parts, but only after strenuous objections had been raised by the Soviet Union, which wanted its proposed article voted up or down. Pav­ lov first made the point that "the USSR article and the Haitian draft resolution were not mutually exclusive" because the Haitian motion dealt with just minorities, whereas the Soviet article also included members of the m3Jority cultural tradition (p. 733). He then said that "the Committee should not evade the issue but should have the moral courage to vote either in favor or against the USSR article, which dealt with a most important question. As that vote was being circumvented, he formally moved that the Committee should vote on whether or not to vote on the USSR article, which had been submitted in due time and in full accordance with the rules of procedure. He pointed out that that was a procedural motion which called for immediate action." The chair­ man "stated that the motion was not acceptable." 60 Whereupon Pavlov responded that this was the first time that a properly presented article was not voted upon and "he protested, in the name of the USSR delegation, against such discrimination, and urged that his article should be either accepted or rejected." 81 The chairman ruled that the Haitian motion would take precedence, a ruling Pavlov promptly appealed and lost. As a last attempt, Demchenko of the UKSSR moved for the adjournment of the meeting, which was also rejected. Finally, the Committee was ready to vote on the five parts of the Haitian proposal. For us the key part of the motion is paragraph 4 .62 At first this paragraph did not include the part I bracketed. The paragraph makes the General Assembly "decide not to deal [in a specific provision] with the question of minorities in the text of the present declaration of human rights" (p. 734). It is significant that the bracketed part was inserted just before the vote was taken. Mter all the work that had been done on the question of the rights of members of minority groups over two years of draft­ ing, this was important to many delegates. The clause implies that while there may be no separate article on the rights of members of minority groups in the Declaration, that does not mean that these rights find no protection in the document. On the con­ trary, Articles 18 (on religion) and 26 (on education) are very protective of minority rights. And the list of nondiscrimination items of Article 2 had as its very purpose to carry the protection of nondiscrimination beyond the short statement in the United Nations Charter and to include within its scope the protection of the rights of mem­ bers of all kinds of minority groups (see 3.3 and 3.4). To test this sentiment, let us see how many votes a hypothetical lobby might have collected if one or several of the minority articles had been brought to a vote. The vote on the adoption of paragraph 4 -with the bracketed phrase included-gives us a start. It was adopted with 22 votes for, 9 against, and 10 abstentions. If we discount Uruguay and Argentina as probably leaning against, we can count Denmark, Mexico, Norway, Peru, Sweden, Syria, Thrkey, and Yemen, the eight abstentions that are left, as weak supporters of a separate minority rights article. Otherwise they would have voted for the paragraph. To these eight abstainers or weak supporters we should, of course, add the strong support of the nine delegations that vote against paragraph 4, for they must have felt that the Declaration should have dealt directly, that is, in a

280

Chapter 7

specific article, with the issue of minority rights. They were the BSSR, Czechoslovakia, India, Lebanon, Poland, the UKSSR, the USSR, Yugoslavia, and Belgium. That adds up to 17 votes in favor of a minority rights article. Any minority rights article needed a simple m�ority to be adopted. Within a week of this vote, China, Haiti, and the Philippines supported and voted for the Soviet Union in its attempt to get a cultural genocide article reinstated in the Genocide Convention (p. 847). That later support for an even tougher measure -a convention being more demanding than a "mere" declaration -suggests that in this earlier Third Committee vote these three nations (for whatever reasons) did not vote their deeper convictions. Counting them in the "for" column gives us 20 votes for the article and 19 against. We should certainly count in the support of the delegations of Pakistan and Venezuela, which were absent that day. Pakistan backed the later Soviet genocide proposal in the General Assembly and Venezuela proposed its own cultural genocide article. Their presence would have made for 22 votes in favor of the article. Others who were absent and either supported the later USSR effort or abstained then were Saudi Arabia (backer), Liberia (backer), Egypt (abstainer), Burma (abstainer), Union of South Mrica (abstainer). lf we counted the backers as supporters for the same pro­ vision in the Declaration and the abstainers as holding the same course, we would get 24 votes for, 19 against, and 5 abstentions. Since the Middle Eastern delegations had been strong supporters of an article on cultural genocide, it is not far-fetched to sup­ pose that the Egyptian delegation, if it had been present, might not have abstained and have voted for a minority rights provision in the Declaration. That would make the final tally 25 for, 19 against, and 4 abstentions. Counting these unreal and uncast votes was not an exercise in futility. A good lobby-as in the case of women's rights - could have brought out the vote for a mi­ nority rights article in the Declaration. What was done on behalf of the article was not well organized, and it was too little too late.

Chapter 8 Article 1 , the Prea m ble, and the Enlightenment

Even a casual reader of the Universal Declaration will see that there is a similarity of language between this 1948 United Nations document and the classical declarations of the eighteenth century. This similarity is especially strong toward the beginning of the document. The first recital of the 1948 Preamble speaks of "inherent dignity" and of "equal and inalienable rights," both of which phrases recall Enlightenment ways of thinking. The Virginia Declaration of Rights of 1776 says that "all men are by nature free and independent, and have certain inherent rights," while the American Decla­ ration of Independence asserts that it is "self-evident that all men are created equal" and "endowed by their creator with certain unaUenable rights." The French Declara­ tion of 1789 uses the same kind of language, speaking of its rights as "natural, im­ prescriptible, and inalienable." In fact, the first sentence of Article 1 of the Universal Declaration is a virtual rewrite of the first article of this French Declaration. The 1789 French sentence says that all "men are born, and always continue, free and equal in respect of their r ights ," while the 1948 United Nations sentence says that "all human beings are born free and equal in dignity and rights." 1 These opening linguistic similarities create the presumption that the drafters of the Universal Declaration had an Enlightenment view of human or natural rights as somehow located in human beings simply by virtue of their own humanity and for no other extraneous reason, such as social conventions, acts of governments, or decisions of parliaments or courts. Just before final passage, the French representative, Rene Cassin confirmed this suspic io n when he told the General Assembly that "in common with the 1789 Declaration, [the Universal Declaration] was founded upon the great principles of liberty, equality, and fraternity" (p. 865). During the Third Committee debates Pe ng- chun Chang, the Chinese delegate, thanked Cassin for having "so ably exposed French doctrines of the eighteenth-century" (p. 114). Chang himself also used Enlightenment terminology when it helped him make his point. Addressing the Third Committee, he argued that the r ight to freedom of thought and religion was one of "the most important principles in the Declaration" because "from the eigh­ teenth century, when the idea of human rights was born in Western Europe, freedom of thought had figured among the essential human freedoms" (p. 397). Other delegates also freely used similar terms. In the Third Committee Anze Matienzo, the delegate from Bolivia, argued that the right to a nationality was "an un­ alienable human right" and he later referred to all of the rights in the Declaration as

282

Chapter 8

being "inherent" (pp. 35 and 111). In the same forum the Egyptian delegation sub­ mitted an amendment which described all of the rights in the Declaration as being "inherent attributes" of the human person (AjC.3/264). Enrique Armand Ugon, the representative from Uruguay, told the General Assembly that "the inherent rights and freedoms of the human being" were being enshrined in the Declaration (p. 887). Even Communist delegates sometimes misspoke themselves, as happened in a Yugoslav proposal which lobbied for the practice of "establishing, as rights inherent in the human person, the principle of freedom of trade union association" (31/p. 35). At the very start of the proceedings the Indian delegation submitted its version of an international bill, which began by "Recognizing the fact that the United Nations has been established for the specific purpose of enthroning the natural rights of man" (lljp. 1). These citations strengthen the presumption, created by the text, that there is some kind of connection between the Universal Declaration and Enlightenment ways of thinking about morality. I use this chapter to explore both similarities and the dif­ ference between them. While it is true that the natural rights philosophies of the eighteenth century presumed to have found a sound basis for a morality that was universal and at the same time secular, the secularism involved was often of a rather mixed kind where Nature and Reason- the two secular components of the triad-were still kept in close proximity to the God from which they flowed. Thinkers like Paine, Locke, Rousseau, and Jefferson regularly and interchangeably appeal to God, Nature, or Reason as the source of value,2 Since these thinkers did not keep the members of this triad sepa­ rated, one gets the impression that for them value trickles down from the Creator-God to His Nature and Reason, which is why- contrary to our own linguistic habits- these two secular members of the triad are also often capitalized in the writings of this era. This single, natural, divine, and transcendent source of value informs the great declarations of that era. Thomas Jefferson and the other American founding fathers said that both "the laws of Nature and of Nature's God" entitled them to declare their country independent. They appealed to "the Supreme Judge of the world" and relied on "the protection of divine Providence" for a good outcome of the revolution. When the French drew up their own more secular declaration a few years later, they, too, juxtaposed God and Nature. Mter three times referring to the rights they list as "natu­ ral rights," they nevertheless declare them "in the presence of the Supreme Being and with the hope of his blessing and favor." 9 One of the advantages of looking at human rights as natural rights given to us by either N ature or Nature's God is that it makes it fairly easy to see them as universal and hence possessed by all people. There being one God who stamps all of His crea­ tures with the dignity of His image, human rights, which explain what is involved in that dignity, will belong to all people everywhere. A list or a system of human rights is the structure of that respect and the channel through which that divine love flows. Even when that God, as often happened in the Enlightenment, is made interchange­ able with Nature or Reason, the argument remains roughly the same. The origin of value is "simply" transferred from the deity to an equally transcendent Nature or Rea­ son, both of which are thought of as divine or sublime. Since all people were thought to equally partake of this Nature or Reason, they were all thought to have an equal

Article 1, Preamble, and the Enlightenment

ZBJ

measure of the rights that spell out the details of this participation. It is a well-known fact that in eighteenth-century practice many of the natural or human rights were denied to Indians, blacks, women, people who did not own property, and scores of others in what were then considered faraway lands. My point here is that the Enlight­ enment theory-ignoring its practice for the moment-can readily account for the universality of human rights. In the first two sections of this chapter I show that most of the drafters of the Uni­ versal Declaration did not share this Enlightenment belief in a single, transcendent source of value. In the section entitled ·� Bargain about God and Nature" I explain that the drafters severed all connections between God and nature and voted for a thoroughgoing secular document, one in which no value is allowed to trickle down from above. In a bargain to avoid any reference to God in the Declaration the draft­ ers deleted a reference to nature that had been part of Article I until almost the end. Thus, instead of the Enlightenment God-and-Nature we were given a Declaration with a reference to neither one nor the other. But this does not mean that the Declaration is not grounded in Enlightenment ways of thinking about morality. In the second section I give an exegesis of three key Enlightenment words that occur in the first recital of the Preamble and in Article I. The m�ority of the drafters felt they could bargain away the reference to nature in Article I only because the words "inalienable," "inherent," and "born" still an­ chored the rights they were proclaiming in human nature, unadorned and not capi­ talized. Since the drafters did not expressly use either the word "nature" or the phrase "human nature" as the foundation of the rights in the Declaration the label and title of "human rights" fits the text and the debates much better than the classical designa­ tion of "natural rights." The new phrase makes all the same points without any of the extra metaphysical baggage that has come to be attached to natural rights talk. One consequence of this demotion of Nature is that we should not approach even these key Enlightenment terms (inalienable, inherent, born) within the frame­ work of the Western rationalist tradition. The drafters of the Declaration came from a great variety of ideological and philosophical backgrounds and-while the majority saw the rights as grounded in human nature - they did not think that the rights in the Declaration were attached to any particular characteristic or set of characteristics. To support this contention I give in section 3 an exegesis of the phrase "reason and conscience" of Article I. Most of the drafters did not view these two items as ( ontologi­ cal) foundation stones for the possession of human rights. Instead, they saw these two human capacities as (epistemic) vehicles by which we can come to know that people have human rights. The knowledge thus gained, says Article I, should make us act toward one another "in a spirit of brotherhood." Each of these major differences (the secularism and nonessentialism) shows us that the drafters of the I948 document did not blindly follow Enlightenment prece­ dent, but staked out their own independent course. This means that any criticism of the Enlightenment project, as then conceived, does not automatically doom the Universal Declaration. Critics who interpret the Declaration's opening Enlightenment phrases in an essentialist, rationalist, or deist fashion take too narrow an approach to the document. In the Introduction I mentioned the fact that Alasdair Macintyre seems to have made this mistake.4

Z84

Chapter 8

In section 4 I make the point that-given this view of inherent rights - it was in­ consistent for the drafters not to include the rights to petition and rebellion in the Declaration as rights. The drafters realized this was so, but let it go and instead in­ cluded one of these "r ights " in the third recital of the Preamble as a warning. In section 5 I discuss the overall structure of the Preamble as a pragmatic one in which the rights are proclaimed as a means toward achieving world peace and friendly rela­ tions among states. However, the first and second recitals of the Preamble place limits on these kinds of calculations for world peace and the welfare of mankind because in these recitals human rights are treated as ends in themselves. The lesson is that human rights cannot serve as means to anything unless they are first thought of as ends in themselves, which is how the drafters thought of them most of the time. I end this chapter with an analysis of the operative paragraph and with an exposition of the purpose of the Declaration as an educational tool. a. 1 A Bargain About God and Nature

In my discussion of Article 16's paragraph on the protection of the family as "the natural and fundamental group unit of society" I reported that Charles Malik, the rep­ resentative of Lebanon, tried to have the Declaration make overt reference to God. In the Second Session he prop osed that the article say: "The family der ivi ng from marriage is the natural and fundamental group unit of society. It is endowed by the Creator with inalienable rights antecedent to all positive law. . . . " 8 This could be i n­ terpreted as a deistic proposal, where God is made the guarantor of natural law, which judges all man-made law. The law of nature is viewed as normative because it is seen as God's Nature, capitalized. The Commission accepted and let stand the first Malik sentence with the reference to the family as the "natural and fundamental group unit of society," but it rejected the second sentence in a vote of 9 to 6, with 3 abstentions (SR. 37jp. 12). Th e opposition was led by Alexandre Bogomolov of the USSR , who poi nte d out that "many people did not believe in God and that the Declaration was meant for mankind as a whole, whether believers or unbelievers" (p. 12). By accepting the first Malik se nte nc e and rej ecti ng the s econd , the Commission severed the con­ nectio n between God and nature on which the Lebanese amendment was based. If nature was to be a s ource of value, it would have to stand on its own. During the drafting process Article 1 of the Declaration came full circle, for it does not now and did not in its earliest versions tie human r igh ts to religion.6 However, between these two end p o in ts Article 1 did for a while contain a reference to nature as a possible substitute for God. The reference was introduced in the Second Session when the delegations of France and of the Philippines were asked by the chair to come up with a joint text for Article 1. Before that point Article 1 had simply said that all men are "endowed with reason and co n science " (p. 21). Neither of the amendments these two delegations had submitted contained the phrase "by nature," but their joint prop osal stated that all men are "endowed by nature with reason and co nsc ie nc e " (SR.9jp. 21). In a later interview Malik told Philippe De L a Chap elle that General Ro­ mulo had introduced t his phrase and had meant it as a refe rence to Christian natural law the ory. The records confirm neither of these two claim s directly, bu t in the next se ction I will report on a later vote on the phrase "reason and conscience" in which

Article I, Pre11mble, and the Enlightenment

285

the Philippine delegation was the only one to openly support Malik's reading of this phrase.7 In spite of the obvious metaphysical implications of this "by nature" phrase, its insertion did not arouse any suspicion until the meetings of the Third Committee in the fall of 1948, where it was deleted in a bargain to avoid a reference to God. The Third Committee had received two amendments that sought to introduce a reference to God in the Declaration. The Brazilian delegation proposed to start the second sentence of Article 1 as follows: " Created in the image and likeness of God, they are endowed with reason and conscience . . ." (AJC.3J243). And the Dutch delegation proposed this first recital draft: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, based on man's divine origin and immortal destiny, is the foundation of freedomjustice and peace in the world" (AJC.3J219). These attempts led to intense debates, but neither of the amend­ ments was ever voted upon. Both of the sponsoring delegations alleged that the majority of the world's people believed in God or in a Supreme Being and would therefore be pleased to see human rights so grounded. Belarmino Austregesilo de Athayde, the Brazilian delegate, said that "his amendment represented the religious sentiments of the Brazilian people [and he] felt sure that the reference to man's being created in the image of God would be welcomed by an overwhelming majority of the peoples of the world" (p. 91). The Dutch representative supported his proposal with the observation that the "majority of the world's population . . . still believed in the existence of a supreme Being" (p. 755). Two other Latin American delegations expressed support for the Brazilian propo­ sition. Corominas, the Argentine delegate, argued that belief in a Supreme Being was something that "all men held in common" (p. 109). Eduardo Anze Matienzo, the dele­ gate from Bolivia, also accepted the point that belief in a Supreme Being was "the common factor in mankind, [and] the most realistic basis for human understanding" (p. 112). An important philosophical point such as that raised by these amendments should not be settled by the power of the majority vote, and it was not. Both amend­ ments were withdrawn when the depth of the opposition became apparent to their respective sponsors. Most of these objectors came from nations that in the late 1940s were still actively being shaped by one or several of the world's m�or religious tradi­ tions. If this majority had wanted to do so, it could have joined the sponsors, decided this issue by voting on the matter, and so have imposed a religious reference on thei r objecting Communist colleagues. They did not want to do this, however. Many of these so-called religious delegations felt that this was not the kind of issue to be decided by the power of the vote. Just as crucial is the fact that most of the religious traditions involved in the drafting allowed for independent access to the basic truths of morality and hence for a secular declaration. This holds for the mainstream Christian-Protestant as well as Catholic -Jewish, Buddhist, Gandhi-like Hi ndu , and Muslim religions.8 The ex­ ception at that time -which today would be much more widespread -was the Saudi Arabian abstention (discussed in 1 . 4) , which was inspired by a fundamentalist Muslim theology.9 The drafters considered this fundamentalist perspective and found it to be in conflict with the goal of universality. Some opponents argued the opposite of what the sponsors of the amendments

Z86

Chapter 8

had said. They claimed that the majority of the world's peoples were not religious. Thus, Ernest Davies, the U.K. representative, thought that a reference to God "might arouse the opposition of delegations representing more than half the world's popu­ lations" (p. 777). Others simply made the point that not all peoples were religious, which was enough to threaten universal acceptability of the Declaration. Salomon Grumbach, one of the French delegates, thought the Declaration should be accept­ able "to as many governments as possible" (p. 767). His colleague from Ecuador, Carrera Andrade, felt that it should be for "all peoples of all faiths" (p. IOO). The Brazilians withdrew their amendment when the promise was made that the Romulo phrase "by nature," which at the time of the Third Committee was still part of Ar ticle I, would also be taken out. Part of the reason for the Brazilian amendment was indeed the fact that the Romulo phrase "by nature" was still part of Article I. The Brazilian amendment left out the phrase "by nature" and asked that the second sen­ tence of Article I instead start as follows: "Created in the image and likeness of God they are endowed with reason and conscience." In other words, according to the Bra­ zilians it was God and not nature to which man owed his reason and conscience. Said de Athayde: "The rights set forth in the declaration existed because of an abstract [divine] force and not as a result of any materialistic concept [of nature]" (p. 766). By substituting "created in the image of God" for the phrase "by nature," the Bra­ zilians brought out in the open a tension which had been present since the Second Session, when "by nature" had been added. When the phrase "by nature" was first introduced in the Working Group of the Second Session, Bogomolov of the USSR pointed out that the text of Article I contained two proposals: "the first [by which he must have meant the 'endowed by nature' phrase] derived from the French materialist philosophers of the nineteenth century; the second proposal [by which he must have meant the duty to act 'towards one another like brothers') was of deistic origin, a pro­ posal taken from the Gospels ." 10 Bogomolov saw a conflict between God and nature, as he understood it. The Brazilian amendment in the Third Committee fed on this kind of antagonism between God (spirit) and nature (matter). Chang reminded his colleagues that China "represented a large segment of hu­ manity," and that its "population had ideals and traditions different from that of the Christian West. Those ideals included good manners, decorum, propriety, and con­ sideration for others. Yet . . . the Chinese representative would refrain from proposing that mention of them should be made in the declaration. He hoped that his col­ leagues would show equal consideration and withdraw some of the amendments to article I which raised metaphysical problems. For Western civilization, too, the time for religious intolerance was over" (p. 98). Chang urged that the phrase "by nature" be deleted "in the hope that the Brazilian delegation would be willing to withdraw its amendment and so spare the members of the Committee the task of deciding by vote on a principle which was in fact beyond the capacity of human judgment." Evidently, Chang was eager to avoid a vote on the question of God, which was why he supported the Belgian proposal to delete "by nature." Chang argued "that the basic text of article I," with the addition of the Belgian and Lebanese amendments, "would be acceptable to the Committee if it were under­ stood on the basis of eighteenth century philosophy " (p. 113). A moment later he

Article I, Preamble, and the Enlightenment

Z87

urged the Committee not to "debate the question of the nature of man again but . . . [to] build on the work of the eighteenth century philosophers" (p. 114). Chang ex­ plained to the Brazilians that the eighteenth-century thinkers "had realized that al­ though man was largely animal, there was part of him which distinguished him from animals. That part was the real man and was good, and that part should therefore be given greater importance. There was no contradiction between the eighteenth-century idea of the goodness of man's essential nature and the idea of a soul given to man by God, for the concept of God laid particular stress upon the human, as opposed to the animal part of man's nature" (p. 114). Here we see that the motivation behind Chang's support for the deletion of the phrase "by nature" was that in some quarters that phrase was understood as underscoring a materialistic rather than a spiritual or even humanistic conception of human nature.11 He suggested that "if the words 'by nature' were deleted [and the Brazilian amendment withdrawn] , those who believed in God could still find in the strong opening assertion of the article the idea of God, and at the same time others with different concepts [of human nature] would be able to accept the text" (p. 114). The Belgian delegate, Henry Carton de Wiart, was the first to suggest a trade­ off between the two phrases. He sensed correctly that some delegations viewed the references to God and to nature as opposites.12 To the delegates who objected to the inclusion of a reference to God he pointed out that the phrase "by nature" could also "lead to philosophical discussion." Since the Brazilian proposal was "of a particularly delicate character" his delegation therefore proposed to delete the phrase "by nature" (p. 96). Seeing the opposition and in the knowledge that there would be another chance when the Dutch amendment to the Preamble came up for discussion, the Brazilian delegation withdrew its proposal, which set the stage for the deletion of the phrase "by nature" from Article 1. The Chilean delegate, Hernan Santa Cruz, expressed the sentiment of many when he argued that "because of the withdrawal of the Brazilian amendment the words 'by nature' should certainly be deleted . . . and no mention should be made of the origin of man's reason and conscience." 15 The vote was 26 to 4, with 9 abstentions. So as not to burden the Declaration with an exclusive or narrow interpretation of human nature - either as too much matter or too much spirit- the delegates decided to drop both references. Cassin's later recollection supports this reading. He wrote that the present phraseology of Article 1 "allowed the Committee to take no position on the nature of man and of society and to avoid metaphysical controversies, notably the conflicting doctrines of spiritualists, rationalists, and ma­ terialists regarding the origin of the rights of man." 14 After the vote on the phrase "by nature," Azkoul, the Lebanese delegate, "drew at­ tention to his amendment to the French text of article 1 and to the fact that there was a difference between par la nature and par leur nature." 16 The Lebanese amendment to change "by nature" to "by their nature" was based on Malik's earlier recollection that "the intention of the Commission on Human Rights had not been to imply that man was endowed with reason and conscience by an entity beyond himself" (p. 97). This Lebanese position captured the difference between the deism of earlier declarations, in which Nature (capitalized) was looked upon as a source of (trickle-down) value and

288

Chapter 8

the grounding of human rights in human nature, without any implication of transcen­ dence. Though this position can be said to represent what most drafters believed, this amendment was also rejected, by a vote of 16 to 6, with 8 abstentions (p. 123). The withdrawal of the Brazilian amendment and the removal of the phrase "by nature" set the stage for the later discussion and withdrawal of the Dutch proposal to insert in the first recital of the Preamble the claim that recognition of human rights is "based on man's divine origin and immortal destiny" (AjC.3j219). The Dutch dele­ gate, L. j. C. Beaufort, began with the observation that "for those who were agnostics or atheists, the Netherlands amendment was merely devoid of any meaning, but it could not harm them or offend their conscience, since they adhered to the formula ignoramus et ignoramibus [we are ignorant and we shall be ignorant] . On the other hand, if the amendment were adopted it would give satisfaction to the majority of the world's population, which generally speaking, still believed in the existence of a supreme Being" (p. 755). To say that those who did not want a reference to the deity lived by the above-cited Latin maxim was an affront not just to atheists and agnostics, but also to those theists who accepted the independence of morality from religion. The point that in 1948 most people were (still) believers had already been questioned as unprovable or not true, As had his colleague from Brazil, Beaufort opposed God (spirit) and nature (mat­ ter). He defended the Dutch proposal as "required for practical reasons, because the rights of man had to be protected in countries where the omnipotence of the State had precedence over the rights of individuals" (p. 755) . The Communist delegates cor­ rectly felt themselves addressed and responded in force. Bogomolov reminded Beau­ fort that "the dispute on the divine origin of man had been fought out in Paris as long ago as 1789 when the Declaration of the Rights of Man and of the Citizen had included no reference to the divine origin." 16 The Polish delegate, Fryderika Kalinowska, said the Dutch amendment "failed to take into account the fact that the Declaration was a United Nations document which could not properly deal with metaphysical ques­ tions." 17 The Communist delegations had a clear view of what they wanted, namely, a secular document that had no anchor in any kind of religious tradition, no matter how vaguely stated. But they were not the only ones who objected. Several theistically inclined friends of the Dutch also objected, though they were more circumspect in their approach. Carton de Wiart, who headed the neighboring Belgian delegation, admitted that he "was personally inclined to favor [the Dutch amendment] because it provided the idea of equality of man with perhaps the only possible ultimate argument and would thus strengthen the D eclaration" (p. 760}. However, he went on to say, though , that the Dutch proposal "raised a very delicate philosophical problem; and in any case it would be inconceivable for the Committee to try to solve that question by a vote" (p. 761). In other words, he wished out loud that his Dutch friends would withdraw their amendment. Alan Watt, the Australian representative, stated that his delegation "would be prepared to accept the Dutch amendment," provided that "the opinion of the delegations which were opposed to its adoption" were "taken note of," as if that could be done fairly (p. 7 68) Santa Cruz explained that Chile, "where the bulk of the nation was sincerely Catholic, had no mention of providence in its constitution, out .

Article I, Preamble, and the Enlightenment

Z89

of respect for the convictions of an important minority" (p. 774). He wanted to carry this tolerance for the minority point of view over to the international arena, which is why "Chile could not support the Netherlands amendment" (p. 774). Grumbach also felt that "it would be wrong to take a decision by majority or minority vote on the insertion of a reference of man's origin . . . . There would . . . be no point in voting on the Netherlands amendment, as agreement was impossible" (p. 767). He thought "it was necessary for the declaration to be acceptable to as many Governments as possible so that there might be the most favorable circumstances of its implementation" (p. 768). I already cited the comment by Davies, the U.K. represen­ tative, to the effect that delegations representing "more than half of the world's popu­ lations" would object to a religious reference. He felt that if "the declaration was to be of universal character the views of those delegations should be respected" (p. 777). Beaufort's response was rather unyielding, for he said that he "did not share the opinion that controversial questions should be eliminated in order to attain unanimity. Was agreement really impossible between those who believed that human rights were inalienable and those who affirmed that man was only a means and that the State was an end in itself?" (p. 776). Beaufort was still speaking only to the Communist dele­ gations and ignoring the fact that several of his theistically inclined friends and allies had also spoken up against his position. He was still thinking in terms of the opposi­ tion of matter and spirit, saying that "bitter experience in the recent past had shown the danger of allowing the monstrous materialistic conception of man as a mere tool in the service of the State" (p. 776). What made him yield ground and withdraw his amendment was not the fact that it could not be proven that human rights are based on "man's divine origin," nor that references to the deity were even for a theist unnecessary (as they apparently were not in the case of Chile, Belgium, England, and Australia), but that he did not have the votes. Having listened to his colleagues object, Beaufort realized that his "amendment had not met with the approval of the majority of the committee" and he said that he "would not press for a vote on it" (p. 777). Withdrawn it was. And so it happened that Article 1 of the Universal Declaration makes no refer­ ence to either God or nature, capitalized or not. This does not mean, however, that the drafters saw no connection between human rights and human nature. The exege­ sis of the next two sections will show that they thought otherwise. It is clear from this segment of drafting history that the Universal DeClaration is a secular document by intent. This outright secularism is a more honest stance than the ambiguous trickle­ down theory of the classical period. And for that very reason certain fundamentalist or evangelical groups are uncomfortable with or even antagonistic toward the docu­ ment. As these critics see it, human rights can only live in the house of religion.18 But this is precisely what the majority of the drafters rejected when they refused to be drawn into the theological disputes rais ed by the Brazilian and Dutch amendments. In the next two sections I show what kind of philosophical beliefs the majority of the drafters did hold. While some religious groups are uncomfortable with this independent access to the fundamental truths of morality, Cassin was almost surely correct when in a later essay he explained the success of the Declaration in finding worldwide acceptance as

zto

Ch11pter a

in no small measure due to the fact that it is a secular document,l9 As Thomas Paine put it, "Government in a well-constituted republic requires no belief from man be­ yond what his reason can give . " 20 a . z "Inherent," "Inalienable," and "Born"

We just saw that most of the drafters had no problem bargaining away a reference to nature in order to avoid having to vote on the question of God. One reason for this willingness may have been the fact that the Declaration contained other words and phrases that indicated that people have these rights by virtue of their humanity and not from any other external causes, like acts of governments, courts, legislatures, or international assemblies. In this section I give a brief drafting history of these other words. The words "inherent," "inalienable," and "born" in the first recital and in Article 1 ma:ke the same point as did the phrase "by [their] nature" that was traded away. Together the drafting fragments comprising these three words add up to what I shall call the inherence view of human rights. This is the view that human rights in­ here in people as such; people have these moral rights because of their membership in the human family, not because of any external force or agency. That this inherence view is not to be taken as a repudiation of the belief that people have these rights "by [their] nature" can be seen from the Latin American votes cast in the trade-off debate of the previous section. Many of these Latin delega­ tions did not really want to support the Brazilian and Dutch delegations in their efforts to place the Declaration on religious footing. To avoid an outright confrontation these Latin delegations supported the trade-off and the resultant withdrawal of the phrase "by nature." But this withdrawal does not mean that for this bloc of delegations there was no connection between human nature and human rights. On the contrary, twenty­ one of them (plus the U. S.) had voted that April for the American Declaration of the Rights and Duties of Man. That document speaks of the "essential rights of man" and of "the fundamental attributes of the individual" (122). And its first recital reads just like Article 1 of the Universal Declaration·, except that it says that people are "by nature endowed with reason and conscience. , . . " If the phrase "by nature" was not objection­ able in April in Bogota, then it still must have been acceptable in Paris that fall, unless, of course, its deletion could forestall an embarrassing vote on the question of God. The Uruguayan delegation is a good case in point. Even though its delegate, Jus­ tino Jimenez de Arechaga, voted to delete "by nature" from the Universal Declaration, he did think that human "rights were derived from the nature of man and not from the acts of states" (p. 101). The doctrine of inherence acknowledges the absence in the Declaration of the words "natural rights" and "human nature." But at the same time it holds on to the fact that the drafters did see some sort of connection between human nature and human rights. The discussions on the word "born" in the first sentence of Article 1 bear this out. That sentence says: ·�n human beings are born free and equal in dignity and rights." The word "born" reminds us of Rousseau's Social Contract, the first chapter of which he begins with the sentence "Man is born free, yet everywhere he is in chains." 21 Article l's first sentence was molded after the 1789 French declaration which says that "men

Article I, Preamble, and the Enlightenment

Z91

are born, and always continue, free and equal in respect of their rights." Given these connections, it is no surprise that this sentence resulted from a joint French and Phil­ ippine proposal. The chairman of the Working Group of the Second Session asked these two delegations to come up with a joint proposal. That is when the word "born" entered the text. By 3 votes to 2 the Working Group adopted as Article 1 : ·�n men are born free and equal in dignity and rights. They are endowed by nature with reason and conscience and should act towards one another like brothers" (SR.9fp. 22). Other than the changes discussed in Chapter 3 and the deletion of "by nature" discussed above, this is very close to the final product.22 The word "born" in the first sentence was not questioned until it reached the Third Committee where both the Lebanese and Chinese delegations proposed that it be deleted (A/C.3f235 and 326). Since both of these delegations accepted the inherence view of human rights, these amendments do not mean that their sponsors wanted the Declaration to be philosophically totally open. Even then, after vigorous debate the word "born" was kept in with a sizable majority of 20 votes to 12, with 5 abstentions (p. 124). For what follows it may be helpful if the reader would keep in mind different kinds of births. Some delegations used the word "birth" to refer to physical births as flesh and blood creatures, while others used it to refer to a double birth, a physical birth that is accompanied by a moral birth into the human family of rights and duties. Most drafters used the word "born" in this dual capacity, stressing the moral rider over the historical event. When appropriate I shall inject the adjective "physical" or "moral" into the discussion or citation. To complicate things even further, in the case of the Communist position I have also a few times inserted the adjective "legal." During the debate, representatives of several South American Catholic countries objected to the phrase "are born," because it did not go back to the beginning of a per­ son's life. Plaza of Venezuela told the Committee that the constitution of his country "guaranteed the protection of the child from its conception until its development had been completed" (p. 111/1 22). Pedro de Alba, his colleague from Mexico, agreed with the "observation that a human being's right to freedom and equality began from the moment of his conception and continued after his [physical] birth" (p. 121). During the vote, Chang pointed out that if the words "are born" were deleted "the question of whether human rights began at birth or at conception would not arise" (p. 1 24). Clearly, different views about the morality of abortion played a role in the vote. The rationale for the deletion of the word "born" given by Karim Azkoul, the Lebanese representative, was that "there should be no implication that people, though born [morally] equal, might lose that equality for any reason" (p. 98). While Azkoul worried that the word "born" suggests that perhaps people's freedom and dignity could at some future point be taken away, other delegations worried that that had al­ ready happened in numerous instances and that the word sounded unrealistic against th e background of evident gross inequalities. Pavlov, the delegate from the USSR, thought that "the theory that all men are [legally] born free and equal represented a somewhat shaky basis for the declaration . . . [for] it was obvious that in the days offeu­ dalism men had not been born free and equal." Therefore, "he laid emphasis on the fact that equality of rights before the law was determined not by the fact of birth but by the social structure of the state which had to promulgate laws to ensure that [legal]

Z9Z

Chapter 8

equality" (p. 110). Historically speaking, Pavlov was no doubt correct. In feudal times people were not equal before the law and they are often not now. For that to be the case, there would have to be, among other things, a total absence of discrimination. But Pavlov's colleagues did not mean the phrase "born free and equal" in a legal way. That would have involved them in measures of implementation which they had a consistent policy of avoiding. They had in mind a moral equality or an equal posses­ sion of human rights and their attendant duties. They saw this moral birth as a rider to the physical births people have. And although they did not say when this moral rider attached itself to the physical process - a question that did interest some of the Latin delegations concerned about abortion rights- the large m�ority of the drafters thought that such a moral birth did take place when a new human being was born into the human family. As a Marxist Pavlov was not very ready to support the idea of a moral birth and the transcendence and universal moral equality that that implies. But in the debates he did inadvertently advocate this position when he supported an Iraqi amendment that "all men should be free and equal in dignity and worth, and should be entitled to similar treatment and equal opportunities" (AjC.3/237). This language of "should be" was what other drafters had in mind when they thought of a moral birth from which this "should be" would automatically follow. If people are morally born with equal dignity then it follows that they should be treated equally. Pavlov expressed his sup­ port after A. Abadi, the Iraqi delegate, had said that he "agreed with the statement made by the Chinese representative . . . concerning the ethical content of Article 1" and after he had recommended his country's proposed text on the grounds that "it placed the whole article on an ethical plane" (p. 100). The Iraqi objection was not to the idea of inherent rights, but to what that dele­ gation saw as the incorrect historical facts suggested by the phrase "are born," which it interpreted in a physical, not a moral, sense. Abadi felt that "the authors of the article had apparently been carried away by its emotional content; it was reminiscent of Rousseau and of the French Revolution; it was lacking both in clarity and originality" (p. 100). He wanted to know whether the Committee wanted the article to be "a state­ ment of rights or of fact. If the former, it should be in the imperative; if the latter, its place was elsewhere than in the body of the declaration." The Iraqi delegation agreed with the Communists that people are often born into unequal circumstances, which is why it wanted to keep the article totally "on an ethical plane." In the ensuing discussion it was repeatedly pointed out that Article 1 should say that although people often are not born into equal circumstances they do have a deeper moral equality and that (depending on how one reads it) the word "should" failed to capture that deeper level. Bagadi, the Egyptian delegate, thought, for in­ stance, that "the Iraq amendment weakened [Article] 1 . . [which] should set forth man's inherent right to freedom and equality" (p. 118). The Egyptian delegation had proposed a recital for the Preamble which asserted that "the fundamental rights of man are not derived from his status as a national of a particular State, but constitute inherent attributes of his person" (A/C. 3/264). This is precisely what the supporters of the phrase "born equal in dignity and [moral] rights" meant. Abadi saw the basic point being made and withdrew his amendment. But he did so reluctantly, for he still felt that "are born" should be changed to "should be," "are," .

Article I, Preamble, and the Enlightenment

Z93

or "have the right to be" (p. 122). Without a demand for state action, which the Iraqi delegation did not make, all three of these alternatives point to a pre-positive inter­ pretation of Article 1 and to the rights declared as inherent in the people that have them. Pavlov, the Soviet delegate, may have intentionally missed this ethical emphasis of the Iraqi amendment. He might have been reading the term "ought" with a legal connotation, but he did not say that that was his reading. All the others took the word "ought" in its moral sense. Most delegates understood that the claim that people "are born free and equal in dignity and rights" was in no way meant to deny that gross inequalities existed every­ where. On the contrary, against the background of those inequalities they wanted to assert the rights that were inherent in the human person. For them, the word "born" did just that. Adbul Kayaly, the delegate from Syria, for instance, wanted to retain the word "born" "as it would exclude the idea of hereditary slavery." 28 Defending the first sentence of Article 1, Grumbach of France said it "meant that the right to freedom and equality was inherent from the moment of birth." The drafters of the French bill of 1789 also had known that there were inequalities everywhere, but they had "wanted to affirm their belief in man's inherent right to equality and freedom" (p. 116). This sentiment prevailed in the vote. It is interesting to note that the delegations of Lebanon and China, which pro­ posed the deletion of the word "born" in the Third Committee, were both strong sup­ porters of the idea of inherence. In a later discussion of the article on asylum, Azkoul called this right "part of the birthright of man" and one of those that was "inherent in the human person" (p. 335). And- right after the Committee had voted to retain the word "born" - Chang proposed to add to it the words "and remain," making the sen­ tence look even more like its French counterpart of 1789.24 If the motivation for the proposal to delete the word "born" had been to get away from the eighteenth-century implication of inherence, Azkoul would never have made the above observation and Chang would never have made his proposal, which was rejected by a vote of 23 to 14, with 4 abstentions (p. 124). The word "born" was left standing by itself as an intentional reminder of the eighteenth-century approach to human rights as rights inherent in human nature, however that being or nature is construed. There is a connection between the word "born" of Article 1 and the words "inher­ ent" and "inalienable" of the first recital of the Preamble. In that recital the drafters tell us that all members of the human family have "inherent dignity." We have this in­ herent dignity because we are born with "equal and inalienable" rights. That means no person and no political or social body or organ gave them to us. And if these persons or organs did not give these moral rights to us, then they also cannot take them away from us, or, in Judith Jarvis Thomson's words, "make us cease to have them," which is what the word "inalienable" means.26 Though key Enlightenment terms like "inalienable" and "inherent" had been used sporadically in the debates, the first recital itself was not introduced into the text of the Declaration until quite late in the drafting process. A committee on the Preamble composed of the officers of the Human Rights Commission first proposed them to the Third Session in May and June of 1948. The officers were Eleanor Roose­ velt of the United States (chairperson), P. C. Chang of China (vice-chair) , Rene Cassin of France (vice-chair), and Charles Malik of Lebanon (rapporteur, or executive sec-

294

Chapter 8

retary) (138) . All four of their delegations were (in various degrees) supporters of the inherence view of human rights and it should not surprise us that they came up with the recital they did. More surprising is the fact that these phrases were never seriously questioned, not even in the Third Committee, which went over everything with a fine comb. Even the usually alert Communist delegations forgot to vote against or to ab­ stain, for in the Third Committee this recital was adopted "unanimously." 2e The doctrine of inherence that I ascribe to the drafters conflicts with Tore Lind­ holm's interpretation of Article 1 of the Declaration. Lindholm is of the opinion that the Universal Declaration does not explicitly or implicitly support the view that "human rights are entitlements that people have simply by virtue of being humans." 27 But this is precisely what the doctrine of simple inherence asserts. Lindholm's denial of the connection between human nature and human rights goes against what is in the text and all through the supporting archival material.28 As he sees it, the drafters presented future generations with an almost metaphysically clean slate to write on as they see fit. Says he: "Christians, Muslims, atheists, Buddhists, Marxists, liberals, and so on, may from their own normative heartland come up with full-fledged justifica­ tory doctrines of globally binding human rights, none of which need be compatible with any of the others, if only each of them provides the proper kind of support to the principle of inhn'ent freedom and equal dignity for every human being." 20 Lindholm's own use of the word "inherent" and the other linguistic similarities with the Enlight­ enment that I have been discussing place limits on which ideologies can with integrity subscribe to the Universal Declaration. The doctrine of simple inherence will, for in­ stance, prevent certain contextualist and communitarian thinkers from embracing the Declaration from their "own normative heartland." Also, as I pointed out, the outright secularism of the Declaration makes cer­ tain fundamentalist groups uncomfortable. The m�ority of the drafters expressed no interest in finding out the alleged metaphysical foundations of the inherent rights discussed in this section. They were content to just find them where theists say God placed them, in the human person. The majority of the drafters saw no need to go beyond what they considered to be the obvious and self-evident moral facts about in­ herent rights. In any case, the real clash with fundamentalism comes in the realm of knowing. While a typical fundamentalist thinks that our reasoning capacities and our consciences are corrupted and therefore not good guides to truth, most of the draft­ ers felt that-unless there is some special case of blockage -we can all come to know that people have inherent dignity and moral rights by our natural and unaided epi­ stemic equipment. No priests, clergy, or any kind of sacred texts are needed to come to an understanding of the inherent rights enshrined in the Declaration. I discuss this universal epistemic condition in the next section. Lindholm knows, of course, that this inherence view is the most natural way to read the opening phrases of the Declaration. He suggests, however, that "defenders of a natural rights interpretation of the UDHR might retort that any moral or legal doctrine of pre-state or pre-positively valid human rights is a natural rights doctrine by definition. While this is perhaps not myopic cultural chauvinism, it is," he says, "a much watered down version of the genuine thing, according to which natural rights may be seen to be conclusions of an argument the premises of which propound per­ tinent aspects of , , , human nature." 80 By not working with essences and deductive

Article t, Preamble, and the Enlightenment

Z95

arguments the doctrine of simple inherence that I ascribe to the drafters is indeed a "watered down version" of what supposedly is the "real" thing. But what is left is still very potent philosophical stuff. The drafters shared with their Enlightenment predecessors the crucial claim that (positive) law is not, as Thomson puts it, "a necessary condition for having [moral] claims. There are claims that we in our world are assigned by law but that we would have even if there had been no law to assign them to us." 51 The Universal Declaration contains a good number of these moral rights. People have moral rights which con­ strain the behavior of others and those rights are inherent in them in that they are not the result of extraneous acts of governments, legislatures, courts, or even social con­ ventions. The drafters believed that people start life already possessing certain moral rights, the right to life being just one of them. There exists a whole realm of these kinds of extralegal rights, the deep structure of which Thomson explores in her book The Realm rif Rights, and the surface contours of which the drafters trace in their Dec­ laration. The nontraditional or nonrationalist (and therefore minimalist) definition of in­ herent rights as pre-state or pre-positive ones should not blind us to this crucial dis­ tinction between legal and moral rights. The drafters understood this distinction and worked with it. The pressures of time and of the Cold War prevented a covenant from being completed and adopted in 1948 (see 1.3). The great majority of the drafters saw that as a setback, but instead of giving up on the idea of a bill of rights altogether, they went ahead and proclaimed a bill of just moral rights, in the hope that the legal machinery of implementation would soon follow. Their speeches make it quite clear that they felt no compunction about proclaiming a list of only moral rights. In fact, the International Institute of Law had encouraged them to do just that.32 Roosevelt had all along believed that "the declaration would not be legally bind­ ing upon governments," which is one reason her country wanted a mere declaration. But she pleaded with the Third Committee that this lack of legal force "made it all the more necessary so to phrase the preamble that it would exercise upon them the great­ est possible force of moral suasion" (p. 762/32). Frede Castberg, the delegate from Norway, also noted that the Declaration was designed "to set moral standards rather than legal obligations" (p. 35) . Corominas, the Argentine delegate, struck the same theme with the comment that the Declaration "involved moral obligations only, and should be followed by a document which would impose legal obligations." 55 Even Cassin, who often stressed that the Declaration was "an authoritative in­ terpretation of the Charter of the United Nations," admitted that it "would not have coercive legal force" (p. 61). And C. H. Wu, a Chinese delegate to the First Drafting Session, "maintained that the declaration could only serve as a moral standard toward which mankind should aspire" (SR.20jp. 6). Juliusz Katz-Suchy, the Polish delegate who abstained from the final vote, admitted just before he did so that the Declaration had moral force. He said that "the declaration as presented was only an expression of principles, with no provisions for implementation and with only moral value" (p. 904). This view that the Declaration had no legal and only moral force was the nearly unanimous view of the delegations involved in the drafting.54 There is tremendous philosophical and moral power in this position and it explains why the Declaration has become a moral beacon in the affairs of individuals as well as of states. It is precisely

Z96

Chapter 8

because these rights are inherent in people and not the gifts of history or circum­ stance that they can be used as standards against which history and circumstance are to be judged. 8 . 3 Reason and "the Conscience of Mankind"

The Working Group of the Second Session adopted this text for Article 1: ·�u men are born free and equal in dignity and rights. They are endowed by nature with rea­ son and conscience and should act towards one another like brothers" (SR.9jp. 22). I explained in Chapter 3 that the women's lobby had the ending changed to "in a spirit of bro the r hoo d" and in section 1 above that the phrase "by nature" was dropp ed in a trade-off that avoided delegates having to vote on the question of God. Other than that, this is the final product. The first sentence contains what I have called the inher­ ence view of human rights. The relationship between the two sentences of the article remains to be investigated -how do we interpret the phrase "reason and conscience" against the background of the drafters' belief in inherence? There are at least two ways of looking at the p hrase "reason and conscience," one in the realm of being and one in the realm of knowing. The first of these two read­ ings makes reason and conscience the defining attributes or properties of a human being. Having these attributes qualifies one for membership in the human family Not having them makes such membership questionable. This is an essentialist view of human nature because it looks upon reason and conscience as the essence of what it means to b e human. If we accept as criterion that to be members of the human family people need to have these characteristics only potentially and not (necessarily) actu­ ally, then this is a defensible position. Still, there is always the danger of a perverse regime blocking people from membership because they do not reason "properly" or their consciences are not what they "should be," which is how the Nazis rationalized the Holocaust.96 Whatever the philosophical merits of this case are, in this section I defend the view that most of the drafters did not want us to read this phrase in a nar­ row essentialist way. The best reading of the second sentence of Article 1 is, I believe, an epistemological one. On this second reading, reason and conscience are the vehicles by which we come to know that we should treat "one another in a spirit of brotherhood." They help us grasp the moral truths enshrined in the articles of the Declaration and hopefully also act on them. Except for the phrase in brackets, Cassin submitted to the First Draft­ ing Session the following text as first article: ·�n men are brothers. Being endowed with reason [and conscience] , they are members of one family. They are free, and pos­ sess equal dignity and r ights . " 36 We have already noted that this article is a rewrite of the 1789 French first sentence, except that Cassin's rewrite is much more communal in tone and wording. We saw in section 7.1 that he also used such phrases as "man is essentially social'' and "human b ei ngs cannot live and develop themselves without the help of society" in several other articles he submitted. He believed that the principle of the correlation of rights and duties is the backbone of any community, which is why he intertwined these ideas and why they are both present in Articles 1 and 29. This communitarian strand was greatly enhanced by Chang, who "thought that .

Article I, Preamble, and the Enlightenment

297

there should be added to the idea of 'reason,' the idea which in literal translation from the Chinese would be 'two-man-mindedness.' The English equivalent might be 'sympathy' or 'consciousness of his fellow men' " (SR.8jp. 2). Cassin agreed, for he said he had sought to capture "the particular spark that distinguishes [people] from animals and at the same time obligates them to more grandeur and to more duties than any other beings on earth" (SR.13jp. 4). Both Wilson and Malik suggested that the word "conscience" be inserted after the word "reason," which Chang accepted.S7 While Chang's proposal must be read as an epistemological one, the tenor of the dis­ cussion was still mostly metaphysical. At this point Vladimir Koretsky, the USSR delegate, made the astute observation that this line of thinking could be "interpreted as justification of the fascist destruc­ tion of feeble-minded people on the grounds that they were not reasonable beings" (SR.13jp. 6). While he approved of the human family theme, he at the same time warned of the dangers attached to picking out one or two characteristics that sup­ posedly constitute membership in the human family. The text as written made it look like the possession of reasoning powers and of a conscience were prerequisites for membership in the human family, with the consequence that anyone not having those characteristics did not need to be treated in a spirit of brotherhood. In response to a questionnaire, the Brazilian government also made this criticism of Article 1. It pointed out that "unfortunately, it is not exactly true that all men are endowed by nature with reason and conscience" (85/p. 1 4) . This fact may cast doubt either on the (metaphysical) universality of the possession of human rights, or on the universal (epi­ stemic) ability of people to act accordingly, or both. Romulo, the representative of the Philippines to the Working Group of the Sec­ ond Session, noticed the same problem. He pointed out that "there was no logical connection between the two parts of the [second] sentence 'Being endowed with rea­ son and conscience, they are members of one family' " (SR.2jp. 4). The chairman asked the French and Philippine delegations to come up with a joint text, which they did. By 3 votes to 2 the Working Group adopted as Article 1 : "All men are born free and equal in dignity and rights. They are endowed by nature with reason and conscience and should act towards one another like brothers" (SR.9jp. 22). This text does not solve the fundamental problem the USSR and Philippine delegations had raised. Most of the article is reasonably clear. It tells us that we are all born free and equal in dignity and rights and that as a result of that common birth into the human family we should treat one another in a spirit of brotherhood. The problem arises once we ask what the func­ tion is of the clause "endowed [by nature] with reason and conscience." The answer is that the drafters came to see this phrase as quite problematic and only kept it in out of respect for Malik, who had been one of the core group of drafters since the beginning. By the time of the Third Session the French delegation dropped the controversial phrase "reason and conscience" from its position and submitted: ·�n members of the human family are born free and equal in dignity and rights. They remain so by virtue of the laws. They are one brotherhood. Each is responsible for the life, liberty and dignity of all." ss Santa Cruz, the delegate from Chile, "questioned the correctness of the conclusion drawn in Article 1, that men should act toward one another in a spirit of brotherhood because they were endowed by nature with reason and conscience and

Z98

Chapter 8

thought that the statement was open to controversy" (SR.50jp. 10). He favored the French text because it "omitted the controversial phrase to which he had expressed an objection" (p. 11). He pointed out that Cassin had written the original draft, from which the French delegation had now deleted the offending phrase, and he observed that that deletion "should [therefore] receive the support of the Commission" (p. 12). Geoffrey Wilson was one delegate who had consistently used essentialist language, but he now admitted that he did not see this as crucial to the philosophy of the Decla­ ration. He "agreed that men were endowed by nature with reason and conscience, but thought that it was self-evident." However, since some delegations were bothered by the phrase and since things like this should not be voted on anyway, "he was prepared to accept its deletion" (p. 12). Malik was the only one of the original essentialists who insisted on the impor­ tance of this kind of language in the Declaration. He was surprised "at the proposal to delete 'nature, conscience and reason' " and "deplored the tendency to disregard such important concepts, which had originally appeared in both the French and United Kingdom texts. The first article of the Declaration on Human Rights should state those characteristics of human beings which distinguish them from animals, that is reason and conscience." (p. 12). Lebeau, the Belgian delegate, was far less certain about that point and responded that "a Declaration on Human Righ ts need not begin with · a definition of what constituted a human being" (p. 12). Santa Cruz "denied ever doubting the fact that human beings were endowed with reason and conscience, but [he] thought that the feeling of brotherhood was not necessarily connected with either" (p. 12). Metha, whose Indian delegation had originally supported the inclu­ sion of the problematic phrase in the joint U.K.-India proposal to the Third Session, now explained that she had "agreed to the deletion proposed by the representative of China because of what the Belgian delegate had said, namely, that "the statement was not really essential in a document such as the Declaration" (p. 13). Malik, feeling abandoned by his partners in essentialism, said he respected the position of the Indian, Belgian, and U.K. delegations that the truth of the phrase was too self-evident to be included. "However, he felt that the Commission should mention somewhere in the Declaration, perhaps in the preamble, the qualities which essentially characterized man, since man and his rights were the Commission's main concern" (p. 13). The delegates of France, China, the U.K., and Belgium agreed to this, with Lebeau of Belgium wanting to take a closer look at the wording to be used. The only genuine support for the Lebanese position came from Lopez, the delegate from the Philippines and the replacement for General Romulo. He "was strongly op­ posed to the deletion of the sentence and wanted the original U.K.jlndia draft be put to a vote and not the one with the phrase deleted" (p. 14). The French proposal, which did not have the phrase in it, was rejected by 7 votes to 5, with 3 abstentions. And the deletion of the phrase ("Endowed by nature with reason and conscience" ) from the U.K.-India text was rejected by 6 votes to 5, with 3 abstentions, the whole article being adopted by 11 votes to none, with 6 abstentions (p. 14). (We have already seen that the Third Committee would delete the "by nature" part of this clause.) This brings us to an amendment to Article 1 which the Greek delegation submit­ ted to the Third Committee. It stated that the "second part of this article, beginning

Article I, Pre•mble, •nd the Enlightenment

299

with the words 'they are endowed,' should be separated, as it applies to duties, and constitutes a special article to be inserted before or after article 27 (29] '' (A/C.3/238). As reason for moving the second sentence Panthelis Rozakis, the Greek delegate, "drew attention to the solemnity of the statement in the first sentence of draft article 1 which seemed to summarize the whole contents of the draft declaration. In order not to weaken the effect of that statement, he proposed that it should be separated from the second sentence and that the latter should be included as an additional paragraph under draft article 27 [29] , which referred to duties. That arrangement seemed logi­ cal" (p. 98). Chang understood the point being made, but instead of seeing the differences between the sentences as a problem, he saw them as a positive feature of the article. Wanting the sentence to remain where it was and as it was, he said: ·� happy balance was struck by the broad statement of rights in the first sentence and the implication of duties in the second. Should article 1 be taken out of the body of the declaration, it would not claim as much of the reader's attention as it deserved to do; moreover, the various rights would appear more selfish if they were not preceded by the reference to 'a spirit of brotherhood' " (p. 98). The majority of the drafters had come to see the phrase "endowed with reason and conscience" as problematic because they did not see the need to pinpoint the locus of human rights other than to affirm, as does the first sentence of Article 1, that people are born with them. The drafters had good reasons for not wanting to make the possession of reason and conscience a prerequisite for having inalienable rights, which is why most of them were not very particular about this phrase. It did no real metaphysical work in the article and many of them kept the phrase in to please Malik, who in addition to being a member of the inner core of drafters also happened to be the chair of the Third Committee proceedings. I conclude that the phrase "reason and conscience" does not function on the level of being, but on the level of knowing instead. This fits best with Chang's rationale when he first proposed that the concept of "two-man-mindedness" be added, as well as with the Greek proposal that the sec­ ond sentence of Article 1 be moved and attached to Article 29. It also fits well with the occurrence of the phrase "the conscience of mankind" in the second recital of the Preamble. The two occurrences of the word "consCience" sug­ gest a fundamental compatibility between the Universal Declaration and traditional Confucian morality as expressed in The Analects and Mencius.89 The word "conscience" in Article 1 (placed there upon Chinese initiative) and the phrase "the conscience of mankind" in the second recital (placed there upon Western initiative) complement each other. Initiated by delegates from very different cultural traditions, they rec­ ommend the same way of conscience as a route into the realm of rights. This fact enhances the universality of the document and should caution us against construing the notion of conscience in the Declaration as simply a Western construct. The second recital says that "disregard and contempt for human rights have re­ sulted in barbarous acts which have outraged the conscience of mankind." This kind of language was not part of the very first statements about the Preamble, but it was soon afterward introduced when Cassin rewrote the original Secretariat draft. He in fact had a longer phrase stating that "ignorance and contempt of human rights have

100

Chapter 8

been among the pr inciple causes of the suffering of humanity and of the massacres and barbarities which outraged the conscience of mankind before and esp e cial ly dur­ ing the last world war" (AC.l/3/Add.1). Cassin's colleagues did not object to his use of the phrase "the conscience of mankind." This concurrence in effect made them generali ze their own feelings about the Nazi horrors over the rest of humanity. By using the language they did, they took the p ositi on that every normal human being would have had the same reaction when placed in similar circumstances. This is the heart of the classical theory of moral intu­ itionism, which I am not saying the drafters consciously held. The theory supposes that people everywhere have a moral sense or faculty that- unless it is blocked - gives them u nai de d access to the basic truths of morality. We saw in the chapter on the Holocaust how often and at how varied times the delegates agreed i n their condem­ nation of what had happened in the Third Reich. For this very straightforward reason Cassin's reference to the "outraged conscience of mankind" survived without objec­ tion into the final draft of the Declaration. Cassin's use of this ph rase was not unusual. The events of the war and the Holo­ caust in p articul ar had been an affront to the human conscience. Thus the first Gen­ eral Assembly resolution condemning the crime of genocide stated that the "denial of the right to existence of entire human groups . . . shocks the conscience of man­ k i nd . . . and is contrary to moral law" (no. 96[1] ) . The same sentiment was echoed by Jorge Carrera Andrade, the representative from Ecuador. He told his colleagues on the Third Committee that to him the "international declaration of human rights was the most important document of the century, and, indeed . . . a m�or exp re ssion of the human conscience" (p. 36). It was because their consciences had been "out­ raged " that the drafters had no doubt that they were right in their condemnation of the "barbarous acts" perpetrated by the Nazis. One vote in particular bears on this issue of making cross-cultural judgments of condemnation. The second recital now states that "di sre gard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of man­ kind." In the Third Committee the word " disregard " was put in to replace Cassin's earlier use of the word "ignorance." Wilson asked the Third Session to insert the word "of" after " ignorance " in the Cassin p h rase. He wanted it to be clear from the text that it had been i gno rance of human rights and not a more general ignorance that had led to the barbarous acts (SR.75jp. 5). This request brought the delegates to an awareness of the fact that "ignorance" was not the right word at all. Pavlov of the USSR said that "the retention of the word ' ignoran ce ' would give the impression that the acts of the Germans and the Jap anes e we re be i ng excused because they did not know they were violating human rights. This was," he said, "the most serious error in the whole para­ graph ." 40 Chang concurred. He explained that it "was true that the Germans and the Japa­ nese were to blame for their contempt of human righ ts , but it could not be said that the y had been ignorant of those rights" (SR.75jp. 5). Pierre Ordonneau, a member of the French delegation , made the p oi nt that the word "disregard " fit much better with the French word miconnaissance, which carried the meaning of "intentional ig norance " (p. 7). Considerations like these led to the change from "ignorance" to "disregard," the vote being 10 for, 1 against, and 5 abstentions (p. 8). It is a small change, but it

Article I, Preamble, and the Enlightenment

30 1

went to the heart of the matter. The drafters believed that no one who perpetrates or witnesses a gross human rights violation is (unless very sick) ever really ignorant of that fact, which is why the Nazi doctors who did horrible experiments in the camps had to assuage their consciences with cases, not glasses, of alcohol. If we were to ask which of these ways, reason or conscience, the drafters thought to be the best route into the realm of rights, they most surely would have wanted not to answer that precise question, and they probably would not have agreed had they tried. To them both were good ways, which is why Chang sought to add "conscience" to "reason" in Article 1 instead of replacing one with the other. It does seem, however, that in practice and in their adoption rationales for many of the other articles the consciences of the delegates spoke more quickly than their interest in philosophical arguments that are the fruit of rational reflection. Their reaction to a UNESCO survey points in this direction. At the time the Declaration was being drafted UNESCO did a survey of the world's leading intellectuals to ascertain from them what the philosophical foun­ dations of human rights might be. Since no philosophical consensus emerged, the scholars who edited and interpreted the findings of this survey were of the conviction that "the philosophical problem involved in a declaration of human rights is not to achieve doctrinal consensus, but rather to achieve agreement concerning rights and also concerning action in the realization and defense of rights, which may be justified on highly divergent doctrinal grounds." " The Second Session of the Human Rights Commission did not pay much attention to the UNESCO report and was even a bit miffed at what had been done. On December 3, 1947, Fernand Dehousse, the Belgian representative to the Commission, complained that "he had been very sorry to find that UNESCO, a spe­ cialized agency, had just published a report on 'The Bases of an International Bill of Human Rights,' a report which the UNESCO Committee had sent to the Human Rights Commission of the United Nations" (SR.26/p. 11). He wanted to know whether the Secretariat had initiated this UNESCO report and was upset about the confusion that had resulted in the public mind, when extracts of the UNESCO report had been published, between this apparently "unauthorized" UNESCO project and bill of rights and the work of the Commission on Human Rights. This complaint was discussed and the Commission decided "not to reproduce the UNESCO report for distribution to all the members of the United Nations" (p. 16). On December 16, Jacques L. Havet, the representative of UNESCO at the United Nations Commission on Human Rights, wrote Eleanor Roosevelt, chairperson of the Commission, a letter explaining that as a way of promoting "better understand­ ing among men belonging to different cultures and professing different ideologies," UNESCO had decided to tackle "the difficult problem of the philosophical bases of human rights" (78). His organization had sent out a questionnaire to 150 philosophers and some organizations and had received about 70 replies, which had been passed on to the Commission. "This publication by UNESCO can in no way interfere with the work of the Commission on Human Rights. Still less does it commit the Commission in any way; furthermore, since it will be a collection of philosophical essays written by experts under their own personal signature, it cannot by any means be dogmatic in character. However," continued Havet, "I should like to affirm the conviction, on be-

JOZ

Ch1tpter 8

half of UNESCO, that a publication of this sort, by aiding the growth of public interest in the philosophical problem of human rights, will be of assistance to your Commis­ sion in the performance of its highly important task" (p. 3). There is no evidence that Havet's response changed the Commission's lack of interest in philosophical argu­ ments about human rights. 8 . 4 The Rights to Petition and Rebellion

In this section I discuss two drafting fragments, one present in the text of the final Declaration and one that is absent. The first fragment, the third recital of the Pre­ amble, says: "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." The fragment that is not present is the tandem right to petition the authorities in case one's human rights are violated. Philosophically, these two rights have a common origin in the Enlightenment proposition that governments are instituted to protect human rights. For if that is the purpose of government, then a person has the right to petition these same authorities and point out to them that certain rights are not protected the way they should be. Or, in the more extreme case, when human rights are systematically violated people have the right to withdraw their support of the government they themselves have instituted to protect these rights and set up another government in its place. In short, they have the right to rebel and re­ volt. Each of these rights is mentioned in the American and French declarations.42 The authors of the American Declaration of Independence complained that "in every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated iJ1jury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free People." In their Article 15 the French also asserted that "Every com­ munity has had a right to demand of all of its agents an account of their conduct." As Thomas Paine, whose thinking influenced both of these texts, put it: "If a law be bad it is one thing to oppose the practice of it, but it is quite a different thing to expose its errors, to reason on its defects, and to shew cause how it should be repealed, or why another ought to be substituted in its place." 4S These two classical declarations are equally clear on the more drastic right to rebel and revolt. According to the 1776 American Declaration, in order to secure cer­ tain inalienable rights "Governments are instituted among Men . . . that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it too." Similarly, the French one of 1789 asserts that the purpose of all political association is the preservation of natural rights, including the right to "resistance to oppression," Following the drafting order, I shall first explain why the right to petition was left out of the Universal Declaration altogether and then why the right to rebellion was demoted to the Preamble.

Article I, Preamble, and the Enlightenment

303

The Right(s) to Petition

The right to petition is a standard staple of national constitutions. In the late 1940s all the inhabitants of Argentina had the right "to petition the authorities." � In Belgium they were aUowed "to address petitions to the public authorities signed by one or more persons," while in Bolivia they could "make collective petitions." In Brazil they had the right to "make representations against abuses by authorities and hold them responsible, by petition addressed to the public powers.'' In Colombia, they could do so, but they had to be "respectful petitions.'' And so on for the majority of the mem­ ber states, though not for the USSR, the BSSR, and the UKSSR:u Humphrey borrowed his H28 from Article 7 of the Chilean submission.46 To it he added the right to petition the United Nations, with the following result: "Everyone has the right, either individuaUy or in association with others, to petition the govern­ ment of his State or the United Nations for redress of grievances" (AC.lj.3) . The First Drafting Session discussed it informally at a meeting in Hyde Park, New York, and after that Santa Cruz, the Chilean delegate, sponsored it for inclusion (AC.ljSR.4jp. 8). Cassin rewrote it to say: "No State shall deny to any individual the right either individually or in association with others, to petition the government of his state or of his residence or the United Nations for redress of grievances" (AC.l/W.2/Rev.1). Wilson "felt that the substance of [these] articles . . . should be included in a conven­ tion," while Malik thought the last part "for redress of grievances" might be deleted to broaden the concept (AC.ljSR.Sjp. 14). The United States also submitted a version that contained the right to petition the United Nations.47 In the Working Group of the Second Session Bogomolov of the USSR "asked why the individual was given a right of petition to the United Nations and in what capacity the latter could act. The United Nations had never been given the task of looking after the interests of the individual" (AC.2/SR.7jp. 6). While Cassin wanted to see ·the word "government" replaced by "public authorities," Romulo of the Philippines "stressed that this right was crucial for members of minority groups and people of non-self-governing territories.'' Bogomolov disputed this last point. He did not think that minorities in those situations had a special need of this article since "the regula­ tions of the Trusteeship Council expressly permitted such a right of appeal" already (p. 6). Cassin "thought the right to petition to the UN should be a right possessed by everyone, irrespective of whether they formed part of a minority or whether they lived in an autonomous State or Non-self-governing or Trust Territory. He favoured a procedure by which such petitions could be made through recognized bodies which would tend to eliminate appeals of a frivolous character" (p. 7). The presence of the right to petition the United Nations proved to be the un­ doing of the article. Because the drafters failed in time to separate the domestic right from the international one, the former got lost in the disagreements about latter. Con­ sidering the time pressures under which the drafters worked, it is amazing how few of these kinds of errors they made. Probably because he chaired the subcommittee that had been given the task of working on the problem of communications, many of which were petitions, the U.K. observer, Heppel, urged the Working Group not to include an article on the right to petition. He doubted "the wisdom of encouraging petitions of this nature until the

304

Chapter 8

machinery at the disposal of the United Nations for dealing with such cases had been more clearly defined." He did not want the United Nations to give the impression that it "was ready to redress grievances" (p. 7). The Working Group adopted by 4 votes to 0, with 2 abstentions, the following article: "No one shall be denied the right, either indi­ vidually or in association with others, to petition or to communicate with the public authorities of his State, of his residence, or the United Nations" (p. 7). The full Second Session did not discuss the matter, but it did change the language of the text. At the suggestion of William Hodgson, the Australian delegate, it adopted (by 11 to 0, with 4 abstentions) this text: "Everyone has the right, either individually or in association with others, to petition or to communicate with the public authorities of the State of which he is a national or in which he resides or of the United Nations" (SR.39jp. 17}. Since domestic and international rights to petition were both still in the same article, it continued to be the object of criticism in the Second Drafting Session. Wil­ son, objected to the inclusion of the right to petition the United Nations; however, if it had to be, he "preferred the wording of the French submission 'and in respect of human rights the relevant organs of the United Nations.' The question of petitions was closely linked with the implementation of the Declaration and that was why he sug­ gested that no decision be taken until that problem had been solved" (AC.l/SR. 41jp. 5}. Santa Cruz was not worried in that way and suggested that "the right to obtain prompt action thereon," which was also in the Bogota Declaration, be added to the article. He also thought the right should cover all rights and not just human rights (p. 6}. Cassin pointed out that "a distinction should be made between the right to peti­ tion within the domestic jurisdiction of a country and the right of petition to the United Nations. The constitutions of almost every country in the world recognized the domestic right of petition unconditionally and without restrictions. But as far as the United Nations was concerned, as there was no question of sanctioning an ancient right, it should be clearly realized that a petition could only be serious in so far as the organ was competent to deal with it" (p. 6). For these reasons the Second Drafting Session decided by 6 votes to 1, with 1 abstention, not to redraft the article until the implement ation question had been settled (p. 7). These arguments were repeated in the Third Session, which decided to place the article at the very end without a number and "with the proviso that it would be recon­ sidered in light of later decisions on implementation" (SR.78jp. 3). The Communist delegations, whose constitutions did not even include the domestic right to petition the authorities, were all along opposed to raising that right to the international level. Pavlov argued that allowing nationals to lodge complaints "against their own State"

was "contrary to the [UN] Charter, which did not confer on the United Nations the right to interfere between a State and its nationals" (p. 3}. This unnumbered article presented the Third Committee with three options. The Committee could give the article as reported out of the Third Session a number and include it in the Declaration as the French amendment prop os ed 48 The second choice was to drop the disputed UN provision and just record the ancient right for citizens to petition their own governments for redress of grievances, as the Cuban delegation proposed.49 The third option was to postpone action on the article, which is wh at the .

Article

1,

Preamble, and the Enlightenment

305

United Kingdom delegation had wanted all along.50 In the discussion all three of these proposals were vigorously defended. Cassin recalled that the article on the right to petition had been accepted at the Second Session and that his delegation had had doubts about including it without the measures of implementation having been written. However, his country "had never held the view that the right of petition was in itself to be considered as a measure of implementation . . . . It was even questionable whether the declaration could be consid­ ered complete without the statement of such a right. That right had been recognized throughout history because it permitted an appeal to the justice meted out by the au­ thorities. The right had been mentioned in all the historical declarations of man; it has always been the equivalent of the right to justice itself" (p. 695). He felt that it would therefore be impossible not to recognize this right to petition the authorities. '�dmittedly, the right to petition on the international level was a much more delicate matter. It was, however, consonant with the spirit of the Charter where several Articles referred to the protection of human rights." Though on this level the right created certain risks, "in the present state of the world, it was essential that men should know that their petitions would receive a hearing" (p. 695). "To omit that right would also be to fall short of the objective that the democratic States had set themselves at the beginning of the last war. The United Nations could not tolerate that, as in 1933, one could remain passive before open violations of the spirit of the Charter" (p. 703). The French delegation received strong support from three other delegations. Santa Cruz of Chile "favoured recognizing the right of the individual to petition the United Nations." His reason was that "by subscribing to the Charter, States had ac­ cepted the incorporation of human rights into international law and had voluntarily abandoned part of their sovereignty" (p. 702). His colleague from Ecuador, Carrera Andrade, agreed. If the right to petition were not respected and no competent organs were set up, the declaration would merely become an ideological manifesto. It was essential to raise to an international plane a right which was an integral part of the democratic faith . . . . He was surprised that apprehen­ sions should have been expressed on the subject and that arguments, tinged by feelings of nar­ row nationalism, should have been advanced. For the Committee to reject the article was tanta­ mount to rendering the declaration ineffective; it must be

a

tool in the hands of the man in the

street and not a mere ornament of International law. The United Kingdom had such a right in its

country, why then not in this new charter for mankind? And the U. S. and the USSR had also al­ ready given up part of their sovereignty by being part of large confederations of States. (p.

699)

A. M. Newlands of New Zealand "recognized, as did Mr. Cassin, that it was a fun­ damental right and that it should find a place among the general principles, outlined in the Declaration." Since the Declaration "did not entail any legal obligations, [t]he lack of organs which would have the authority to deal with petitions addressed to the United Nations was therefore not a valid argument for the exclusion from the decla­ ration of that general principle. Moreover, the Economic and Social Council had in­ structed the Human Rights Commission to set up an ad hoc group before each Session to go over the petitions the Secretariat received. So the right to petition recognized an existing situation" (p. 704) .

306

Chapter 8

Almost all other delegations went along as far as the national level was concerned, but held back from endorsing the right on the international plane. The feelings of nationalism mentioned by Carrera Andrade fed some of the strongest objections. While he agreed that "the right to petition was a right in itself," Perez Cisneros, the Cuban delegate, defended the narrower national focus of his nation's proposal be­ cause "the right had been recognized in the positive and constitutional law of many countries." But to declare the right to appeal to the United Nations "at the present time would undoubtedly raise difficulties in the international field. That part of the French amendment was unfortunately premature" (p. 696). Campos Ortiz, the Mexi­ can delegate, made the same points, adding that "the United Nations, moreover, had no machinery to deal with petitions from States which were not members . . . . The whole conception indeed was not in accordance with the Charter, which referred only to the promotion of respect for human rights but nowhere made their protection obligatory." Malik answered that by signing the UN Charter member states committed themselves to act in cooperation with the UN to establish respect for human rights. The delegates of Australia, Paraguay, Argentina, and Syria supported the Mexican position. It seems that some version of the Cuban proposal for the domestic right to peti­ tion the authorities could easily have been adopted, while the more inclusive French one would have had to be postponed. Unfortunately, neither of these amendments was ever voted on because the chair ruled that the United Kingdom amendment to post­ pone a decision on this issue should be brought to the vote first. Davies, the U.K. dele­ gate, argued that "the whole question of the right to petition was intimately bound up with that of implementation" and he reminded his colleagues that the Third Session had postponed action on the item for that very reason. He did not object to the right to petition on either the national or the international level, "but thought it difficult to settle the question without raising consideration on the measures of implementation" (p. 697). Several delegations supported the U.K. proposal, each for their own reasons. Pav­ lov of the USSR agreed. He thought "it was untimely [for the Committee] to interrupt its consideration of the declaration in order to deal with a specific question which re­ ferred to measures of implementation and did not concern the text of the Declaration, [since] the right to petition could hardly be considered as a fundamental right." This right, if added, "constituted an infringement on national competence and touched upon the question of national sovereignty" (p. 698). The right to petition the United Nations "envisaged the possibility of a State being accused by one of its own citizens and being obliged to answer an indictment as though before a court of law." The right made it look as if states were not eager to "impose respect for human rights" and "could be interpreted as an admission of national incompetence." Furthermore, the provision was also impractical. "Could an unemployed person get a job by petitioning the United Nations?" (p. 698). Leonid Kaminsky, the BSSR delegate, supported Pav­ lov because "it was immediately apparent . . . that the proposals did not respect the sovereignty of States." "The UN," he said, "was not a World government" (p. 706). Roosevelt did not think that the right to petition itself constituted a measure of implementation but she did think the right involved such measures. For that reason she supported postponement of the discussion until the Commission came to discuss

Article I, Preamble, and the Enlightenment

307

those measures (p. 698). Dehousse thought "the objections relating to the compe­ tence of the United Nations in the matter were unfounded and he could not but agree with the reference the Chairman made to Article 56 of the Charter," where members "pledge themselves to take joint action" to promote Article 55's call for "universal respect for, and observance of human rights" (p. 699). "The point raised in regard to national sovereignty was always raised in international law by those who took a re­ actionary attitude." Even so, he did not support the French or Cuban texts and agreed with the U.K. proposal on the grounds that "the right to petition should be dealt with in the covenant since the declaration was not legally binding" (p. 700). Perez-Cisneros responded that the "Committee should not consider the U.K. draft resolution because it was distributed only a few hours earlier." "If, as he believed, the right to petition was an essential human right, it should be included in the decla­ ration; if, on the other hand, it was no more than a measure of implementation, the United Kingdom point of view was correct. The Committee would first have to take a decision as to whether the right of petition was an essential right or not" (p. 710). Since the United Kingdom did not want to yield its procedural prerogative, the Cuban delegate saw even the domestic version of the right to petition go down in defeat. He therefore proposed an amendment to the United Kingdom proposal (to refer the question back for further study) making it start out as follows: "Whereas the right to petition is an essential human right . . " (p. 713). This amendment was adopted by 22 votes for, 11 against, and 8 abstentions. Those voting against the amendment were the BSSR, Canada, China, Czechoslovakia, Poland, Sweden, the UKSSR, the USSR, the U.K., the U. S., and Yugoslavia (p. 713). After this the United Kingdom motion to postpone action on the question of the right to petition passed with 34 votes for, 6 against, and 5 abstentions (p. 714). After the vote Pavlov was quick to point to the "contradictory" character of the votes that had been cast. He thought that it was inconsistent to first state that the right to peti­ tion was "an essential human right" and then to state that "no action would be taken on the matter at the present session." Pavlov meant by this that the delegates should never have inserted the last minute Cuban text into their motion to postpone action. The inconsistency could also have been resolved the other way. Given that they voted that it was an essential human right, it was inconsistent for the drafters to hold back and not include this right on at least the national level. .

The Right to Rebellion

I mentioned at the start of this section that the rights to both petition and rebellion were prominent features of Enlightenment declarations. The right to rebellion was special because on its surface it does not really seem to be a right an individual could have. It is not one man or woman, but usually a whole people or large section thereof who exercise the right to revolt and replace the existing government with another one. As Thomas Paine said: "Sovereignty, as a matter of right, appertains to the Nation only, and not to any individual; and a Nation has at all times an inherent, indefeasible right to abolish any form of Government it finds inconvenient." 51 This does not mean, however, that this collective right has no place in the Declaration at all. As Paine ex­ plains it, the righ t to resist oppression is one of those natural rights, which a person

308

Chapter 8

"throws into the common stock as a member of s o ciety " (p. 45). Lo cke does the same thing when he justifies revolutions: "And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power witho ut r igh t and have no ap p ea l on earth, there they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment." 52 The collective right to rebel is derived from the r igh ts of the individuals that constitute the society. As if addressing the drafters of the Declaration, who were worried about this, Locke adds that no one should think that "this lays a perp etual foundation for dis­ orde r: for this o p erates not, till the inconvenience is so great that the m ajori ty feel i t, and are weary of it, and find a necessity to have it amended" (par. 168). There is there­ fore goo d reason for the inclusion of such a r ight in a declaration on human rights. And we do have it in the Declarati on, but not as an article. It is barely submerged in these words of the third recital: "Whereas it is essenti al, if man is not to be comp elled to have recourse, as a last resort, to rebellion against tyranny and oppressio n , that human rights should be protected by the rule of law." This recital was put in the Pre­ amble by the Committee on the Preamble in the Third Session. This Committee had before it several draft prop osals from which to write their preamble, but only one of these, the French one, contained this provision, which the Committee took over.55 In the Third Committee some minor details were changed, to which we co me shor tly. This submerged r ight to rebellion is the logical consequence of the theory of gov­ ernment enunciated in Article 21 of the Declaration. There "the will of the people shal l be the basis of the author ity of government: this will shall be expressed in peri­ odic and genuine elections, which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedure," It would seem that if and when these normal procedures have been subverted or systematically violated that the people should be able to avail themselves of the right to revol t . As the recital indicates, this r igh t can be invoked only "as a last resort," and to avoid that eventuality the recital states that "human r ights should be protected by the rule of law." Both of these features were a subject of discussion when Article 21 was being ad opted . During that debate, the delegations of Colombia and Costa Rica proposed this j o i n t amendment to Article 21 : "Every person has the right to make opposition to the Government of his country and to promote its replacement by legal means with equality of electoral opp ortun ities and of access to the means of propaganda" (AfC.3/ 248). The stipulation that such opposition must be within the bounds of the law re­ moves it from the realm of rebellion, which more often than not is agai nst the tyranny of unfair and arbitrar y laws. Explaining the joint amendment, Alberto Canas, the Costa Rican representative, argued th a t if the right to oppose the government was not adde� to the r ight to partici patio n in government "all human rights would be lost. The Nazi and fascist governments- like all tyrannical regimes -had been able to de prive the people of all fundamental human rights precisely because they had first deprived them of the basic r ight to oppose the government. States that had shown such an inter­ est in preventing a renewal of fascism should realize that the amendment would serve that purpose, for the right it laid down was in itself a negation of fascism" (p. 449). In reference to the clause that the opposition must have access to the media, Canas explained that "the idea that the Press should be forbidden to publish oppo­ sition propaganda or that radio stations should be forbidden to broadcast it, was

Article I, Preamble, and the Enlightenment

io9

repugnant to his delegation. The Government in power must recognize the right of the opposition, for unless the majority accepted the minority's right to become the major ity, democracy could not exist" (p. 456). There was almost no discussion of this amendment, except that Pavlov "recalled that it was because Hitler and Mussolini had been allowed to oppose their respective Governments that they had eventually been able to come to power. The USSR delegation therefore hesitated to accept the amendment, for it might provide the possibility for fascist elements to overthrow the Government" (p. 449). The amendment was rejected by 18 votes to 14, with 9 absten­ tions (p. 472). This right to rebellion was not very popular. It is one thing to implicitly acknowl­ edge the right and quite another to advertise it publicly and in one's constitution, which is why the only constitution that i ncluded the right also qualified it away. The El Salvador constitution stated: "The right of insurrection shall in no case produce the abrogation of the laws." 54 The Cuban delegation was the most aggressive defender of this p rovision and had included this article in its draft declaration: "Every human being shall have the right to resist any form of oppress ion" (E/HR.l). From this input Humphrey crafted the following H2 9 : " Everyone has the right , either i ndividually or with others , to resist oppression and tyranny" (AC.l/3). Cassin c lea rly had given this matter some thought and changed the Humphrey wording to have his Article 25 say : "Whenever a government seriously or systemati­ cally tramples the fundamental human rights and freedoms, individuals and people s have the right to resist oppression and tyranny, without prejudice to their right of ap­ peal to the United Nations" (AC.l/W.2/Rev.l). He added the adjective "systematic" and the access to the United Nations. While Cassin listed the right to resist acts of tyranny and oppression in his section "Public Freedoms," he also had in the section on politi cal rights the following: "There is no protection of human rights where authors of tyrannical or arbitrary acts or their accompli ces are not punished and where there is no provision for the liability of public authorities or their agents" (W.2/Rev.l). In the First Drafting Session's discussion San ta Cruz, the delegate from Chile, said he preferred the Humphrey version because it "recogn ized the right of an indi­ vidual to resist oppression and tyranny. Professor Cassin's wording, he felt, guaranteed the right to resist oppression only when a regime deprives its people systematically of their fundament al human rights and freedoms, and it might be very difficult to say when that happened" (AC.lfSR.8/p. 15). Cassin resp onded that the "genuine duty for all citizens to obey the law could not be overlooked. He pointe d out that there were two concep tions : first, that rights be ob tained p eacefully and normal ly, but se cond , that when there is a great crisis the gravity of the violation of human rights calls upon itself the attention of all peoples . He agreed that possibly his text did not reconcile these two conceptions well enough. " This article was accepted informally at the Hyde Park meeting of the Drafting Committee and sent on to the Working Group s t age as A rticle 25, but with a note attached to it s aying that "there was a substanti al expression of opinion in favor of including this article in the pre amble instead of as an article" (AC.1/SR.14jp. 2). The Working Group of the Second Session concurred in this judg­ ment (AC.2/SR.7jp. 7). Upon the recommendation of Bogomolov of the USSR and by 10 vo tes with 6 ab­ s te ntions , the full Second Session changed the note to say that the article "should be

110

Chapter 8

taken into consideration in the drafting of the Preamble" ( SR.41jp . 9). From here it went straight to the Third Committee, where it was alre ady in the Preamble that had come from the Third Session. Nevertheless, the Cuban dele gation had proposed this version of it for inclusion as an additio nal article: "Every person has the right to resist acts of oppression or tyranny " (A/C.3/261). Perez Cisneros was aware that the third recital of the Preamble also contained this right in a submerged fashion and he sug­ gested that the two items be discussed together. As the United Kingdom had done with the article on petitio n , so now Arge ntina moved postponement of action (AjC.3/377). San ta Cruz of Ch ile was of the opinion that "the r ight to resist oppression was a fundamental r ight which was in its proper place among the other essential rights of the individual" (p. 748). He therefore resur­ rected an earlier French version of the same article as an alternative text to the Cuban proposal, ins erting into it the right to appe al to the United Nations. He proposed: "When a government seriously or syste matically violates fundamental human rights and freedoms, indivi duals and peoples are entitled without prejudice to an appeal to the United Nations to resist oppression and tyranny" (A/C. 3/307jRev.2). All of these prop osals were withdrawn, but not until after s ome reve aling discussions. Roosevelt led the opposition by declaring that the "re cognition in the Declara­ tion of the righ t to resist acts of tyranny and oppression would be tantamount to encou raging sedition, for such a provision could be interpreted as conferring a le gal character on uprisings against a government which was in no way tyrannical. It would be better not to e nter upon the dangerous subject of particular doctrines which could e asily be abused. The third paragraph of the preamble mentioned the question with sufficient clearness" (p. 749). Perez Cisneros responded that "his proposed additional article was not dangerous but expressed a legitimate right which had for its object the independence and s overe ignty which the free exercise of human righ ts should guar­ antee. Referring to the history of his country, he observed that that right had been recognized in the Montecristi manifesto, drawn up by Maximo Gomez, which was the cornerstone of Cub an liberation. The same idea had been adopted by many other American nations and was reflected, in particular, in the speeches ofJefferson, Boli­ var and San Martin" (p. 749). However, he would vote for the Argentine resolution, he said. Since Chile had resurrected an earlier French text b oth of these nations could be exp ec ted to speak in favor of the incorporation of this p ar ticul ar right. Cassin p oi n ted out that it was "based on the noble principle of 1789 and als o on the situation cre­ ated by recent events." He also reiterated that "the right to resis t acts of tyranny and oppression could be rec;:ognized only in t he case whe re such acts were p ractice d by a regime and systematically" (p. 750). Santa Cruz said he "would withdraw his amend­ ment . . . provided he would be able to submit a joint amendment of the dele gations of Cuba and Chile to the third p aragraph of the preamble," which the ch ai rm an said he could do (p. 753). Reversing the USSR's earlier opposition to a separate article on this matter, Bogo­ molov spoke i n favor of the Cu b an prop os al for a s eparate article. "Indeed the r ight to resist acts of tyranny and oppression had brought about in the eighteenth Century in France that vast popular movement which had thrown off the yoke of tyranny. . . . That right had also formed the basis of the Declaration of Rights of the People of the

Article I, Preamble, and the Enlightenment

.I l l

Soviet Union. More recently, the Nazi oppression under which many State Members of the United Nations had suffered, had provided a further reason for mentioning that right in the declaration of human rights" (p. 750). He would vote for the addi­ tional article proposed by Cuba, which, in his opinion, "should not have met with any opposition" in the Third Committee. But opposition there was. Four delegations spoke against including an explicit statement on the right to revolt. Davies of the United Kingdom said, he realized that all delegations agreed in principle to the additio nal article p ropos ed by the Cuban delega tio n ; nevertheless, many of them did not want the affirmation of that right to be i ncorpora ted in the declaration of human righ ts . Such a step would be inopportune and dangerous; non-revolutionary democratic methods should be sufficient with tyranny and op­ pression. In his opinion it was no t a righ t, but a last resort and what was to be ai me d at first of all was the establishment of a system of rules of conduct which would ensure the abolition of oppression and tyranny. Recogn iti on of that right would entail the risk of inciting anarchy. Moreover, how would it be possible to determine where oppression and tyranny began? (p. 751)

He agreed with the U.S. delegate that the third paragraph of the Preamble was enough. Similar objections were raised by the Belgian and Australian delegates. Carrera An­ drade of Ecuador also wondered how "resistance to oppression [could] be made legal when it was necessarily of an illegal character?" (p. 752). At this point all the resolu­ tions and proposals were withdrawn and there was no need to take any votes. The discussion turned instead to the third recital of the Preamble which had come from the Third Session and contained the barely submerged right to revolt. That recital stated: "Whereas it is essential if mankind is not to be compelled as a last resort to rebel against tyranny and oppression, that human rights should be protected by a regime of law" (AjC.3/314/Rev.l). Two changes were proposed. The Cuban and Chilean delegations proposed a substitute, which made it explicit that resistance was a right: "Whereas it is essential, if individuals and peoples are not to be compelled to rebel against tyranny and oppression, which would be their legitimate right as a last resort, that human rights should be protected by a regime of law." 65 The United Kingdom proposed that the clause "regime of law" be changed to "the rule of law" (AjC. 3/253). Davies explained that the phrase "rule of law" included within it the sources of law, while the "regime of law" was a more superficial concept which lacked normative content and simply referred to the way a certain legal system happened to be. Using the term "rule of law" would show "more clearly that every action had to be justified and that every individual could be called upon to answer for his action. That was of primary importance" (pp. 756-757). This shift in terminology, together with the submerged terminology of rights, was incorporated in the joint amendment which the delegations of Cuba, Chile, and France put forward: "Whereas it is essential, if man is not to be compelled to fall back, as a last resort, on rebellion against tyranny and oppression, that human rights should be protected by a rule of law" (A/C. 3j382/Rev.l). Perez Cisneros, the Cuban sponsor of this substitute, explained that the

word

"mankind" in the basic text was too abstract;

rebellion could

be

c ar

rie d out only by

individuals and peoples, thus those words "individuals and peoples," should be substituted for

.J I 2

Chapter 8

the abstract term "mankind." His amendment further proposed that the place of the words "as a last resort" should be altered to reflect the meaning that rebellion would be possible only when all other methods had been exhausted. It also emphasized that rebellion, when under­ taken as a last resort, was a legitimate right. That view had already been defended in the course of the debate . It corresponded to the circumstances of the present time and bore no reference to the events of past centuries, There should be no need to defend the view that a resistance movement was by no means out of date, particularly in France. (p. 759)

Roosevelt objected to the implied right to revolt in the substitute text because "it would be unwise to legalize the right to rebellion, lest the formula should be invoked by subversive groups wishing to attack or undermine genuinely democratic Govern­ ments. Honest rebellion against tyranny was permitted by the Declaration. Subversive action was quite a different matter. The United States would oppose the inclusion in the declaration of any text sanctioning it" (p. 763) . Answering these fears, Dem­ chenko of the UKSSR was of the opinion that the Cuban and Chilean amendment "was very important and should be incorporated in the declaration. It was impossible to speak of human rights without also referring to the right to rebel against tyranny and oppression. It had been suggested that the right to rebel could be abused. In his opinion, such fears were unjustified on the grounds that where no tyranny or oppres­ sion existed there was no danger of incitement to revolt. The right was an important one because of the existence of fascist countries such as Franco Spain." &6 Anze Matienzo, the delegate from Bolivia, "referred to the struggles of his nation and other countries on the American continent for the conquest of freedom, and stated that those countries were fundamentally opposed to all forms of tyranny. He deplored the tendency of young peoples to be swept away by the spirit of revolt, to the detriment of political stability, and feared that a solemn affirmation of the right to rebel might encourage anarchistic tendencies. He believed that the matter should be handled with the greatest prudence" (p. 773/4). Carrera Andrade "warmly sup­ ported the joint proposal of Cuba and Chile, which would arouse sympathetic feel­ ings" (p. 776). He agreed to incorporate this joint amendment into the text Ecuador had submitted, replacing the fourth recital of that submitted text.117 Perez Cisneros drew attention to the fact that "the words 'to fall back as a last re­ sort . . . ' seemed to indicate that, to some extent, a concession was concerned, which was not true of the French text, which contained the quasi-legal expression recours supreme. " Watt, the Australian delegate, also thought the English and French texts differed substantially from one another. The French text had a normative ring to it, which the "falling back" of the English text lacked. This �ed Sandifer, the United States delegate, to propose "that the words 'fall back, as a last resort, on rebellion' should be replaced by the words 'to have recourse, as a last re s ort , to rebellion' " (p. 785). This

might have meant that the United States delegation was becoming more comfortable with the idea of a (submerged) r igh t to rebellion, which is what the language of "re­ course" suggests. Also just before the vote, Davies proposed that in the English text, the words "by a rule of law" should be replaced by the words "by the rule of law." Both of these things were done, yet both the U.S. and the U.K. abstained in the vote, which was 25 for, 1 against, and 11 abstentions (p. 788).

Article I, Preamble, and the Enlightenment

Ill

8 . 5 Human Rights as Means and Ends

The Preamble of the Declaration serves as an introduction to the reader, and just like the introductions to most books, this one, too, was written after the body of the work was done. It states the reasons why the drafters felt it necessary to proclaim the list of rights they did. Each paragraph starts with the word "whereas," which means "since" or "because," and the seven occurrences of this word introduce the seven rea­ sons for making the proclamation. Thus, if we were to ask the General Assembly why it proclaimed the Universal Declaration we would get a long answer of seven times "whereas," or seven times "because . . . . " Several of these seven reasons have already been discussed in this study, but to make my point about means and ends I list them all again briefly. The first reason for proclaiming the Declaration is that "the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." In addition to making Enlightenment connections using the words "inherent" and "inalienable," the concept of rights against the state, and the theme of the human family, this recital also tells us that those who want a world with freedom, justice, and peace must recognize that all members of the human family have inherent dignity, which is expressed in the inalienable rights proclaimed in the Declaration. The wanting of this peace does not make for or create these inherent rights; these rights are inherent and inalienable and our recognition of that fact and our treatment of people accordingly will help bring about the desired freedom, justice, and peace in the world. The second recital has two reasons within it. The first of these two is that "dis­ regard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind." The experience of the Holocaust shocked the drafters into proclaiming most of the rights in the Declaration. The writing of the Dec­ laration was the result of an experience of moral outrage that is known to all people of conscience. The second reason given is that "the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people." This refers to the proc­ lamation made by President Franklin Roosevelt in his 1941 message to Congress.68 When the Committee on the Preamble reviewed all the drafts for the Preamble that had been submitted (by France, Belgium, Lebanon, the United States, the United Kingdom, the Union of Soviet Socialist Republics, and the American Federation of Labor) that Committee came up with a draft that did not include this reference to Roosevelt's four freedoms. Of the submitted drafts only the one from the AFL contained such a reference: "Whereas it is the purpose of the United Nations to assist the people of the world in obtaining freedom from fear, freedom from want, freedom of thought and religion and freedom of speech and of the press" (E/CN.4/129). In the ensuing discussion Toni Sender, the AFL observer, pointed out that the AFL draft "emphasized the need to improve economic and social conditions to assist the people of the world in obtaining freedom from fear and want, thereby providing one of the most effective guaran-

Jt 4

Ch11pter 8

ties that h um an r ights would be re s pected . The Charter propounded the same idea" (SR.75jp. 15). But she did not press for the adoption of her text , Ch ang, the delegate from China, "also wanted the need for an improvement in econom i c and social conditions mentioned [in the P reambl e ] . It could be done by borrowing the words of the Ch arter on the subj ect," he said. A sub commi ttee was ap­ poin ted which prop osed two versions, both of which contained the words from the Charter stating that the pe ople s of the United Nations "are determined to p ro m o te social progress and better standards of life in larger freedom" (E/CN.4/146 and 149) . This p hr as e was adopted as part of the fifth paragraph of the Preamble, and being borrowed from the Charter it was not the same thi ng as the AFL reference to the four freedoms (SR. 77jp. 6) . None of the amendments submitted by del egations at the start of the Third Committee had picke d up on this AFL reference either. Mter a long debate about the causes of the World War II and how these should be mentioned in the second recital, the Australian and French delegations submitted an amendment, the s econd half of which read: "[Whereas] the advent of a world in wh ich human b eings shall e nj oy free d om of sp ee ch and belief and freedom from fear and want has been proclaimed the highest asp iration of the common people " (p. 777 ). This new additi on was not discussed much , p robably because it had been ge nerally agre e d to make a reference to Franklin Roosevelt's four freedoms somewhere in the Preamble and thus to exp and the otherwise narrow focus on civil and p ol itic al rights.59 The broader focus would enhance the univers ality of the Declaration and thereby help c reate frie ndly relations among nations. just before the vote the two d elegations indi­ cated they would merge the two reasons into one recital so that only one "whereas" was needed. This became the se con d re cital and was adop ted by 2 7 votes with 8 ab­ stentions (p. 787 ). The third recital tells us that "human ri ghts should be pro tecte d by the rule of law" in order for "man . . . not to be compelled to have recourse, as a l as t resort, to re­ bellion agains t ty ranny and oppression ." The observance of human r ights is suggested as a �eans to avoiding rebellion and revolt. We saw in the preced i ng section that th e Committee on the Preamble took this recit al from the French draft and that s o me m inor changes were made in the Thi rd Co mmitte e . Thou gh there was much discus­ sion of this provision as a separate article, which was turned down, as a recital in the Pre ambl e it was not controvers ial . The fourth recital states that the proclamation of the Declaration is "essential [as a means] to promote the developme nt of frie ndly relations between nations." Only the draft submitted by the USSR delegation contained this exact UN Char ter language.60 It was not included as a recital by the subcommittee of the Third Session, which pro­ posed the first full draft of the Preamble. Also, another subcommittee (composed of the dele gates of Australia, China, the Philippines, the U.K., and the U.S.) that was asked to rewrite the Charter insp i red recitals of the Preamble draft, but did not in­ clude this USSR phraseology in either of its two rewrites.61 The delegation of the USSR resubmitted what it had given to the Th ird S ession . It proposed that the D eclaration be pro clai me d "with a v iew also to prom oti ng the development of fri en dly relations between nations" (E/800). Th ere was very little dis­ cussion of this p articular sugge stion , except that all the Communist delegatio ns spoke up in support of it. K alinowska , the Polish delegate, pointed out that "the preamble

Artlcle 1 , Preamble, and the Enlightenment

315

failed to make any mention o f the most important subject o f the development of friendly relations among nations, although Article 1, of paragraph 2 of the [UN] Char­ ter did so." 62 Kaminsky, the Byelorussian representative, praised the USSR draft for the Preamble as "short and concise" and containing all the essentials, including "the development of friendly relations between nations" (p. 765). Radevanovic, the Yugo­ slav representative, thought the USSR draft p referabl e for the same reasons (p. 768). This recital was adop te d by 26 votes to 8, with 3 abstentions (p. 789). At the time of its adoption it was placed just before the operative paragraph , but the Sub­ Committee on Order and Style put it in fourth place. When the roll was called, the following delegations voted against this recital: the Netherlands, New Zealand, the United Kingdom, the United States, Venezuela, Canada, Chi na , and Greece. Lebanon, the Philippines, and Afghanistan abstaine d . The fifth recital comes straight out of the first paragraph of the UN Charter, but the version of it that came from the Third Session did not include the phrase I have placed in brackets: "Whereas the p eoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person, [and in the equal righ ts of men and women and] have determined to promote social progress and better standards of life in larger freedom." (The first ver­ sion also did not include the last phrase about social progress and larger freedom, but we saw in the account of the second recital that that problem was fixed by the Third Session itself.) The gender equality omission was corrected at the level of the Third Committee (see 3.5). The Dominican Republic submitted an amendment proposing that the omit­ ted Charter phrase "and equality of rights as between men and women" be added to this recital (A/C.3/217jCorr.l). Aiming at the same problem, the New Zealand dele­ gation submitted as second recital: "Whereas the Charter further provides that the United Nations shall promote universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or reli­ gion" (A/C.3j257). Newlands, its delegate, pointed out that the "omission of a refer­ ence to the equal rights of men and women . . . might be wrongly interpreted" (p. 758) . Menon, the delegate from India, "said that her delegation would whole-heartedly support " the amendment of the Dominican Republic. "She could not agree that the principle of equality of r ights between men and women would be weakened by repe­ tition or that its general acceptance could be taken for granted." She believed " the omission in the preamble of a statement to the effect that men and women were equal in rights could very easily be construed as per mitting d iscriminatory measures by nations which did not believe in the equality of the sexes" (p. 764). Bernardino expla ine d that the Dominican Republic was persistent in its amend­ ment "because it was aware that in certain countries the term 'everyone' did not necessarily mean every individual, regardless of sex. Certain countries d id in fact rec­ ognize certain r ights for everyone, but experience had shown that women did not enjoy them, as, for instance, voting rights. She thought it was necessary to state that principle explicitly, in order to pay tribute to the part which women had played in the cultural development of the world and to the heroism they had shown during the war" (p. 771). She asked for the support of all delegations. Anze Matienzo, the dele­ gate from Bolivia, endorsed the Dominican Republic's amendment, "paying tribute

Jl6

Chatpter 8

to the representative of that country for her admirable efforts in support of women's rights" (p. 773). Newlands reiterated that she shared the point of view of the Domi­ nican Re public and of India regarding the fifth recital. " The pri nciple of equal rights for men and women should be explicitly mentioned," she said (p. 7 7 9). The vote on this insertion was taken by roll call. It was adop te d by 32 votes to 2, with 3 abstentions. The United States and China voted against and the United King­ dom, Canada, and Eth iopia abstained (p. 779). The sixth recital is also taken verbatim from the United Nations Charter. It comes from Article 56 where "all members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." One of the p urp os es explicitly men ti oned in Article 55 is the pro­ motion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, s ex , langu age, or religion." The sixth recital leaves off the last phrase b ecause Article 2 of the Declaration is very explicit about the prohibition of discrimination. The New Zealand draft proposal included this nondiscrimination clause (A/C.3/267) . So did the first recital of the Soviet draft p rop osal, which took its departure from similar language in paragraph 3 of Arti cle 1 of the Charter.65 The New Zealand draft proposal for the Preamble was very short and contain e d only recitals drawn from the UN Charter. It therefore suggested that the first, second, and third recitals, which are not drawn from the UN C h ar ter, be deleted "as they did not contain anything essential to an international declaration of fundamental rights and freedoms." Watt, the Australian delegate, thought that the New Zealand proposal was "praisewor thy for its brevity, but it did p erh aps carry that virtue too far, for it did not take into account certain imp ortan t pri ncip les " (p. 7 69) . Newl ands "regretted that the majority of members of the Committee did not consider brevity to be essential in the preamble . . . [and said] she would not press for a vote on her amendment" (p. 778). This withdrawal guaran teed that the Preamble of the Declaration would not be st r ic tly a matter of tying the Declaration into the United Nations Charter. The other two substi tuti ons, those from the USSR and Ecuador, contained more than Char­ ter phrases and, in any case, were rejected (pp. 784, 786). This means that the only amendments that really mattered at the level of the Third Committee were those that were amendments to (and not just substitutions for) the draft that had come from the Third Session of the Commission. As the final product shows, that draft contained far more than a few Charter refer­ ences. For example, the Third Session's Preamble Committee did not take the seven th recital verbatim from the Charter, but used it to expand upon and help i mple ment the Charter pledge referred to in the sixth re cital . It adopted this text: "Whereas this pledge can be fulfilled only through a common understanding of the nature of these ri ghts and freedoms" (138). It had borrowed this entire recital, including the ph rase "the nature," from the Lebanese and United Kingdom drafts for the Preamble (E/CN.4/132 and 124). When this text was put before the Third Session, the delegate from the USSR wanted to delete the entire recital. Pavlov said: "To make the Declaration on Human Rights dependent on the application of a common conce ption of the nature of rights an d freedoms would destroy its very purp ose . The Commission's discussions had

Article I, Preamble, and the Enlightenment

317

clearly shown the divergences which existed between the members in the fields of phi­ losophy and ideology; that difference of ideas had not prevented fruitful co-operation, because even though there had been disagreement on the nature of the rights, the Commission has, nevertheless, come to a satisfactory agreement as to their practi­ cable application" (SR .77jp. 7). As presented, "the wording seemed to require a unity of thought and ideas which was impossible to achieve" (p. 7). Chairman Roosevelt re­ sponded that "the realization of the purposes of the Declaration depended above all on a common understanding of the essential human rights and freedoms. If a common view on the nature of those rights and freedoms could not immediately be attained, that identity of views nevertheless remained the supreme aim to be sought. There had been disagreement in the Commission, but the decision of the m�ority had prevailed in the choice of articles, and the Declaration, as drafted, indicated as effectively as was possible at present the degree of agreement which had been reached" (p. 7). Chang said that there was something to be said for the USSR representative's interpretation: "The paragraph, as drafted could mean that the obligation assumed by the Members of the United Nations would not be binding should agreement on a common conception not be reached" (p. 8) . To remove any ambiguity and problems, Roosevelt, as the representative of the United States, proposed that the disputed words "of the nature" be deleted from the recital. This would answer Pavlov's "com­ ments regarding the various philosophical and ideological differences which existed" (p. 8 ) . Malik, the Lebanese representative whom we have seen to be very interested in the philosophical foundations of the Declaration, advised the Commission to be very cau tious in a matter which might lend itself to misinterpre ­ tation. The pledge of the Members of the United Nations to ensure the respect of fundamental freedoms and rights had been taken more than three years ago; their task would obviously be facilitated if they could reach a common understanding of those rights and freedoms . Without making that common conc ep tion a

sine qua

Mn

for international co-operation, the usefulness

of such an identity of views could be recognized. He therefore suggested saying: "Whereas this pledge could be bes t fulfilled through a common (p.

un derstanding

of these rights and freedoms ."

8)

Pavlov recognized the merits of the various proposals, "but nevertheless insisted on the deletion of paragraph 6 [7] " (p. 9). Ordonneau, the delegate from France, was sympathetic to the USSR point of view and did not want to adopt a hastily crafted paragraph. "The Commission agreed that, in spite of the difference in philosophical and political systems, it was still pos­ sible to find grounds for common action and that it was on that conviction that the work it had just completed was founded. As regards paragraph 6 [7] , the difficulty was more in the wording than in the substance as there was no doubt as to the authors' intentions." His delegation would accept any text which "would satisfy the USSR rep­ resentative and which would make it clear that the Commission had tried to find a common understanding and had succeeded in doing so" (p. 9). At this point both the chairman and Chang "agreed that paragraph 6 [7] was not essential." Chang "pointed out that any reservation regarding the pledge taken under the Charter would weaken that pledge" (p. 9).

118

Chapter 8

Wil s on d i sagree d . He thought that "it should b e · emphasized in the Preamble that the Commission had reached a remarkable degree of unders tanding and that the Declaration was the result of that identity of views." He was against deleting the para­ graph, as it served as a transition to the op erative p aragraph , and hoped that it would be accepte d in amende d form. Ordonneau wanted to keep the paragraph and would on ly go along with dropping it if no satisfactory language could be found (p. 10). A small drafting subcommittee of China, France, Lebanon, the United Kingdom, and the USSR was appointed. This Committee produ ced the final text which was adopted by 13 votes to none, with 1 abstention (SR.78jp. 5). Since the USSR serve d on this Committee and no mi nority report was filed, I he sitate to say that this one abstenti on came from that delegation. if Pavlov meant by lack of philosophical agree me nt the fact that the drafters never stopped to give and agree upon a formal definition of what a human right is, then he was right. And he was obviously right in claiming that this lack of formal agreement had not preve n te d the delegations from re ac h ing agreement on the thir ty articles themselves. But it is going too far to say that the votes on s ome p hiloso phically laden terms do not represent any philosophical consensus. Metaphys ically, the great maj ority of the drafters accepted the view that human rights are inherent in p eople and the refore inalienable moral birth rights . And epistemologically the great m�ority of them ac cepted conscience and reason as ways of knowi ng that lead us into that realm of i nheren t moral rights . These beliefs form a minimal but widespread consen­ sus. They emerged after a long series of votes that culminated in Article 1 and the first two recitals of the Preamble. Though the Communists had a policy of abstaining, they forgot to do so on the first rec ital. More i mp or tant , we have seen that they active ly participate d in the wri ting of a document that was clearly intended to transcend do­ mestic legal systems and can be used to pass positive or negative judgments on these local systems. If o ne takes Pavlov's comments about the practi� al agreement that had been reached without p hil osoph ic al consensus to their extreme, one could construct the following i nte rp re tation of the Preamble and of the Declaration i ts elf. According to th i s re ad i ng the human r igh ts of the Universal Declaration were proclaimed as · a m eans that would serve the cause of world peace. They have no le gitimacy in their own ri gh t, but derive all their authority and justification from the goal and the cause of world peace which the y are meant to serve. We might in that case look at the Universal Declaration the way David Lyons, a utilitarian phil oso pher, proposes we look at the American Bill of Rights . The Ameri­ can colonies united into one nation "to form a more perfect union, establish justice, insure domestic tranquility, p rovid e for the common defense, promote the general we lfare and secure the blessings of li b erty to ourselves and our p os te rity." Collaps­ ing these va rious goals , Lyons starts with the plaus ibl e prop osition that the American Revolution was made for the sake of the general welfare . Then, three years later, when the drafters re aliz ed that for the sake of that same ge ne ral welfare it would b e go od to add a bill of r igh ts , they did so. Th e y had come to realize that ad he ri n g to a strict b il l of rights would over the l ong run serve the ge neral welfare b e tter than not making that kind of commitment.84 I n the same way, it is not implausible to lo o k at the Charter of the United N ations ·

Article I, Preamble, and the Enlightenment

319

a s setting world peace a s the primary UN goal. Then, three years later the Third Gen­ eral Assembly added the Declaration as an international bill of rights to help the organization achieve that goal of world peace and friendly relations between nations . Thus the Declaration and the rights i t proclaims are seen as subservient to the stated goal of world peace. The argument for adding the International Bill in 1948 would, in the Lyons scenario, be that cumulative human experience has shown that respect for and recognition of these - on this reading - man-made, self-proclaimed human rights is the best guarantee of world peace . History in general, but especially World War II, bears this out. At one point in the Third Committee debates Cassin, who was always eager to explore the international aspect of human rights, spelled out this link be­ tween human rights and world peace. He made the point that "the precedent of Hitler had shown that the violation of human rights in a given country could in fact be pre­ liminary to an attack upon the independence of other nations" (p. 61). That is indeed a powerful argument for an international order based on respect for human rights, even man-made ones. Considerations such as these played a m�or role in the proclamation of the Dec­ laration. In each of their recitals the drafters tell us they want something: "justice and peace in the world" (recital 1); to meet "the highest aspirations of the common people" (2); to avoid "rebellion and tyranny" (3); "friendly relations between nations" (4) ; and to fulfill their UN Charter pledge (5, 6, and 7 ). But the drafters of the Univer­ sal Declaration did not look upon the human rights they proclaimed as merely or only or even mostly means to an end. Both the text of the Preamble and the whole tenor of this study point beyond the pragmatism of the moment. The word "recognition" in the first recital aims at something that already exists and so fits the use of the phrases " inherent dignity" and "inalienable rights" also used in this recital. The wish-list interpretation also leaves out the past tense of the first part of the second recital where we are told that "disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind," including the consciences of the drafters of the Declaration. These backward-looking statements are not in themselves aimed at world peace. Also, the drafters based the right to take recourse to rebellion (in the third recital) on every individual's possession of inher­ ent rights. Their position was not that people do not like tyranny and oppression and should therefore be given inherent and essential moral rights with which to rebel. Their view was that since people know they have inherent rights they will not tolerate for­ ever tyranny and oppression and will sooner or later revolt, which they have a right to do. To avoid that eventuality, it is recommended that these inherent and inalienable rights be protected by the rule of law. Recitals 4, 5, 6, and 7 all go back to the pledge in the United Nations Char­ ter. The first paragraph of that Charter starts out not with an affirmation, but with a reaffirmation of faith in fundamental human rights. Like the word "rocognition" in the first recital of the Declaration this reaffirmation suggests that these fundamental human rights already exist and now need to be more firmly implemented to avoid the scourges of future wars. If we push these recognitions and reaffirmations as far back as we can, we must, of course, come to an original affirmation and an original cognition of these same rights. Numerous citations in this chapter have shown that the drafters saw themselves

JZO

Chapter 8

as standing on the shoulders of their Enlightenment predecessors, but not necessarily and not slavishly so. Not necessarily, because while the drafters borrowed some open­ ing phrases from the En ligh tenment, the Enlightenment precedents did not play a great role in the drafting of the Universal Declaration. Ar ticle 1 and the Preamble were not drafted and discussed until the rest of the document was fir mly in place. Strictly sp eaki ng, the drafters had no need for examples from the Enlightenment. The horrors of World War II gave them all the original, firsthand cognitions and affirmations they needed to be justified in making their proclamation about what is involved i n human beings treati ng each other as brothers and sisters of the same human family. And not slavishly, because - to mention just the most glaring difference - the Declaration goes far beyond the Enlightenment precursors in its proclamation of social, economic, and cultural rights. I conclude that while the drafters surely though t that proclaiming this Declara­ tion would serve the cause of world peace, they did not think of the human rights the y proclaimed as only or merely a means to that end. Regardless of the consequences for world peace, these rights have an independent grounding in the members of the human family to whom they belong and who possess them as birthrights. If this were not so, a government could torture people (or violate any other right) as long as it was thought or shown to serve the cause of world peace. This is precisely how most gov­ ernments rationalize and justify their human rights violations, but it flies in the face of the truth about the Declaration and about human rights generally. 8.6 The Declaration and Human Rights Education

Now that the Declaration had been written, what should be done with the document? What did the drafters expect of their addressees? Given that several recitals link the Declaration directly to the human rights promises that member states make in the United Nations Charter, one would expect the operative paragraph of the Declara­ tion to be devoted to the need for legislative action. As an authoritative interpretation of the seven Charter references to human rights, one would think that the drafters would have put the Declaration forward as a standard for legislation and codification to be followed and implemented by all member states and all new nations that join the United Nations organization. The drafters could not do that so easily, because, as we saw at the beginning of Chapter 7, they had formally barred all references to the state from their docu­ ment. Having all along kep t the state at arm's length, they could not very well p ull it back in at the end. The Egyptian re solu tio n they had already ad op te d had formally "defer[ red] the formulatio n of principles relating to the duties of States for incorpo­ ration to an appropriate instrument" (AjC.3j222). The appropr iate instruments that followed were the International Covenant on Civil and Political Rights and the Inter­ national Covenant on Economic, Social, and Cultural Rights. Having dealt with the ques tion of states' duties in this formal way, they could not set up these same states as the entities most directly addressed in their operative paragraph, which is one of the mos t formal parts of the whole Declaration. A solution had to be found. The objective of human rights education provided a very good alternative.

Article 1, Preamble, and the Enlightenment

JZI

This educational purpose for proclaiming the Declaration will be explored through the different clauses of the operative paragraph. That paragraph reads as fol­ lows: Now,

Therefore, T H E GENERAL A S S E M B LY

proclaims as a common Standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keep­ ing this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

TH I S UNIVERSAL D E C LARAT I O N OF HUMAN RIGHTS

First, the delegates had to choose between having the proclamation made by either "We, the Peoples of the United Nations," which is what the French delegation wanted, or by the General Assembly, which is what most others wanted. Cassin, the French delegate to the Third Committee, proposed that the "Preamble should open with the words 'We, the peoples of the United Nations' taken from the [UN] Char­ ter and originally suggested by President Roosevelt. Other United Nations documents might take the form of a proclamation of the General Assembly," he said, "but the declaration should follow the technique of the Charter" (p. 760). Considering the enormous input by nongovernmental organizations and even by individuals without official capacity (see 1.3), a case can be made that this Declaration was not written solely by and therefore should not be proclaimed solely by the United Nations delegates to the Third General Assembly. These delegates represented their governments and their states and those in turn represented the peoples under their jurisdiction. Most drafters thought of themselves as representing not just the fifty-six nations that had UN membership in 1948, but all of mankind (see 1.6). From that per· spective the proclamation could have been made by "We, The Peoples of the World," as was sort of the case in an early French submission, which spoke of the Declaration's being "constantly held before all the members of the world society to remind them at all times of their rights and duties" (82/Add.B). However, most of the other delegations wanted the United Nations General As· sembly to do the proclaiming. The United States representative, Eleanor Roosevelt, said that it "was not acceptable" to open the Declaration in the same way that the Charter began. "The Declaration would be an act of the General Assembly; it would be misleading to give it the form of an international treaty" (p. 763). It is by no means clear that a "We, the Peoples of the UN" phrase would have made the Declaration look like a treaty, but to leave out the General Assembly was misleading and would have placed the Declaration on an equal footing with the UN Charter. It would have been as if the peoples of the United Nations had not already in 1945 constituted them­ selves by way of the UN Charter into an organization called the United Nations. The Declaration is very much a product not just of the peoples of the United Nations, but also of the organization called the United Nations, of which - in matters like these­ the General Assembly is the most authoritative part.

JZ2

Chapter 8

The drafters also had to decide whether to use the verb "proclaims" or "rec­ ommends." To help us appreciate the choice of "proclaims" we need to differentiate between two things the Third General Assembly did in the late 1940s. First , it saw to it that the Universal Declaration was drafted. This act of drafting took over two years to complete. Some of the other versions for the operative paragraph sought to capture this two-year process and used phrases like the General Assembly "sets down" (AFL), "se ts forth" (U.K.), or "defines" (France) in this Declaration the fundamental human rights and freedoms (E/CN.4j129). None of these suggestions were satisfactory be­ cause they did not capture the second thing the General Assembly did, which was the act of proclamation, which occurred on December 10, 1948, when the final vote was announced . Since the verb "proclaims" had been used, the adoption of the Declara­ tion at that moment also constituted a proclamation. These two acts- the writing of the Declaration and the proclaiming of it - are not the same act. To high light the difference between a proclamation and a recommendation I quote (with added emphasis) the Soviet proposal for the operative paragraph and discuss how it differs from what was adopted. It stated : "The General Assembly rec­ ommends the following 'Declaration of Human Rights' to all States Members of the United Nations to be used at their discretion both in adopting appropriate legislative and other measures, and in their systems of upbringing and education and in extend­ ing the provisions of this Declaration to the Peoples of States Members themselves and to the population s of all the territories in respect of which States concerned dis­ charge the function of guiding and administering authorities (populations of Trust and other Non-Self-Governing Territories) " (E/800). With the use of the phrase "at their discretion" the USSR text drew attention to the crucial difference between a rec­ ommendation and a proclamation. There is much more authority and much less room for discretion in a proclama­ tion than there is in a recommendation. Pavlov explained to the Third Session that the USSR delegation had used the qualification "at their discretion" because it was "e quivalent to a statement that the States Members themselves would decide what legislative or other measures they would take" (SR.78jp. 5). Also, a proclamation is often a solemn occasion. A proclamation must be done by the right authorities with the proper preparation so that no embarrassing mistakes are made. Those to whom a proclamation is addressed can be found to be not in compliance with it, but they can­ not undo the proclamation itself. Only the proper authorities -in this case the UN General Assembly- can do that. The inclusiveness of the drafting process, as told in Chapter 1, and the thorough discussions held on all the articles of the Declaration, as recounted in the other chapters, leave no doubt that this proclamation was very well prepared, adding to the seriousness of the subject matter and the solemnity of the occasion. The notion of a "mere" recommendation, linked as it was in the Soviet text to an open espousal of discretion, was therefore rejected . Roosevelt said that too much dis­ cretion "would seriously impair the moral forcefulness of the declaration as a whole. The fact that the declaration would not be legally binding upon Governments made it all the more necessary that it would exercise upon them the greatest moral suasion" ( p . 762). Davies considered that "it was not desirable to leave the implementation of the declaration of human rights to the discretion of the States concerned; for that

Article I, Preamble, and the Enlightenment

JZJ

reason the UK delegation felt itself obliged to vote against that amendment" (p. 772). Demchenko of the UKSSR said his delegation "could not agree with the Belgian, UK, USA representatives that the references to the Declaration having to be used at the dis­ cretion of the Member States was a restriction on the scope of the document" (p. 768). The critical comments on the Soviet text show that the question of discretion was intertwined with the fact that this operative paragraph addressed itself to the member states of the United Nations. An early U.S. version said that "the General Assembly recommends the following Declaration as a common standard of achievement for the United Nations in the performance of its obligation" under the Charter (E/CN.4/119). An early French submission stated "That the enjoyment of such rights and freedoms by all persons must be protected by the commonwealth of nations and secured by international as well as national laws" (E/CN.4/82/Add.8). The Philippine paragraph also called for "appropriate legislation and international action to promote respect for these rights and freedoms" (E/CN.4/143). This theme of calling upon the member states of the United Nations to make good on their Charter pledge by way of the appropriate legislative action was a com­ mon theme in many proposals for the operative paragraph. And all along such calls for legislative action were thought to be "more suited to the preamble of a Convention." 65 Against the USSR operative paragraph Wilson said he "considered it took the Commission outside the scope of the Preamble and into the sphere of implementa­ tion" (SR.78fp. 6). Speaking in the Third Committee, Cassin said the text the USSR had proposed was good for brevity "except for its last [operative] paragraph, which the French delegation could not accept, as it largely overstepped the bonds deter­ mined by the Charter with regard to the competence of the States and the United Nations" (p. 770). Carrera Andrade of Ecuador thought that it "was inappropriate to include in the preamble a recommendation concerning the implementation measures to be put into effect by the various individual States" (p. 767). Leaving out legislative action as the main explicit goal for the proclamation caused the drafters to fall back on its educational purpose as the main reason for the proclamation of the Declaration. Several delegations experienced this shift in pur­ pose as an anticlimax, and for good reason. As Kaminsky, the BSSR delegate, pointed out, "the operative part, when seen in connection with the recitals, appeared to state that the main purpose of the declaration was merely to teach men to respect human rights and freedoms. While there was a vague reference to progressive measures, it contained no recommendation that progressive laws should be passed to ensure a common standard of achievement" (p. 765). The USSR amendment, he said, had the merit of containing "concrete provisions for the practical implementation of the prin­ ciples contained in the declaration" (p. 765). Kalinowska, the Polish delegate, also felt the Preamble's "lengthy introduction led to a surprisingly weak operative paragraph. Was the work of two years by various bodies of the United Nations to result merely in urging individuals and organs of society to strive by teaching and education" to pro­ mote respect for and observance of human rights and freedoms? ( p . 761). At the start of the Third Session Wilson indicated that the U.K. delegation thought that the "Declaration's main importance would be as an educational instru­ ment" (SR.49/p. 8). That fit the resolution his delegation had proposed earlier, which was: "THE C O M M I S S I O N OF HUMAN RI GHTS REC OMMENDS that the General Assembly

324

Chapter 8

adopt, in the form of a Declaration, a statement of Human Rights and Fundamen­ tal Freedoms which States should do their utmost to realize through teaching and education and measures for the progressive development of the social and economic well-being of mankind" (SR.48fp. 10). A few meetings later he reiterated this point by arguing that "since the Declaration was to be an important basis for teaching and propaganda, it should be as simple as possible" (SR.54fp. 5). The Third Session's Preamble Committee took the education goal from the pro­ posals by Lebanon and the United Kingdom, both of which had submitted texts con­ taining the present wording, which proclaims the Declaration "as a common standard of achievement for [all peoples and] all nations, to the end that every individual and every organ of society . . . shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and interna­ tional, to secure their universal and effective recognition and observance" (1 32/1 24). Here we have an open and explicit educational goal and a hidden legislative one. Three things were added to this basically educational paragraph. First, with the strong recommendation of both the USSR and the Philippine delegations, the Third Session (with 9 votes for, 3 against, and 2 abstentions) adopted an Egyptian proposal to add at the end the clause "both among peoples of the Member States themselves and among the peoples of territories under their jurisdiction" (78fp. 6). For the same reasons, a Chinese proposal to add the word "peoples" after the word "nations" was adopted by 8 votes to 0, with 5 abstentions. These two adoptions were made to assure that the Declaration would cover all peoples, regardless of where and under what jurisdiction they live. The Third Committee changed the title of the document (from "international" to "universal'' ) for these same reasons (see 1.5), namely, to shift the focus of the docu­ ment away from the delegates and nations that did the drafting to the ordinary men, women, and children to whom it was primarily addressed. It is these ordinary men and women the drafters had in mind when they stressed the educational goal of their proclamation. Mter the phrase "every individual and organ of society" they inserted the clause "keeping this Declaration constantly in mind." This clause was part of the French submission, which itself was an echo of the 1789 French declaration.66 This historic Declaration was also primarily aimed at educating the French people so that henceforth they could judge whether or not their state or government performed the functions for which it was instituted, which was to protect the human rights of the French people.&7 This matter of using the Declaration to make performance judgments leads me to make a final observation about the phrase "a common standard of achievement," which the Preamble Committee took from the Lebanese and U.S. proposals. In the Lebanese text it was part of a mostly education paragraph, while in the U.S. case it was used in the context of fulfilling the United Nations Charter pledge (E/CN. 4f132 and 119). We may therefore say that the Declaration is proclaimed as a standard for b oth the explicit educational purposes of this Proclamation, as well as for its hidden legislative goals. In his influential essay "Human Rights, Real and Supposed" Maurice Cranston has arg u ed that by using the phrase "standard of achievement" the drafters of the

Article 1, Preamble, and the Enlightenment

IZS

De claration sh ortchange d themselves.6B Cranston charges that th is phrase has a uto­ pian r ing to it and that it therefore does not fit with the first half of the Declaration. While the ph rase adequately describes the social, economic, and cultural r igh ts be­ cause they have not yet been achieved, it conflicts, he says, with a proclamation of civil and pol itic al r igh ts which people already possess. As Cranston sees it, in the first half of the Declaration we meet with "real" human r igh ts and in the second half with only "supposed" ones that are not yet real, but are held up as a standard of achievement. My answer is that the Declaration serves as a standard for both kinds of rights in the same way. The drafters did not mean for this phrase to set up the Declaration as a standard for the human rights people ought to have, but do n ot ye t p os sess . Th at reading of the phras e conflicts with their own use of the words "inalienable," "inher­ ent," and "b orn ." As far as the possession of inherent h uman righ ts is concerned, there is n oth ing to achieve or aim at because people possess these rights from bi r th .69 The Declaration can only serve as a standard of achievement in the areas of imple­ mentation and of enjoymen t of the rights listed. The document was meant to be used as an educational text to tell people about all the i nherent rights they already have. In that way it sets a standard for human rights education. People can measure their en­ joyment of human rights against this standard an d see where they are being repressed or in what manner their d ignity is being violated. To the extent that it is, this authori­ tative standard will help them lodge a com plain t to the au thorities , even agains t their own governments. Against this standard the p rogress of "all peoples and all nations" (and of their states and governments) can and should be measured. Whenever and whereve r the full e njoyme n t of any of these inherent rights is lacking the standard set by the D eclarati on has not been fully achieved. In March 1993 the Commission on Human Rights recommended that the United Nations proclaim a decade of human rights education,7° The G eneral Asse mbly ac­ cepted this idea and in December 1994 adopted Resolution 184 wh ich proclaimed the de c ade from 1995 to 2005 as the United Nations Decade for Human Rights Education. In making this pro clamation for human righ ts education the Assembly was moved by the recommendation of the Commiss ion and took into account a plan of action drawn up by the High Commissioner for Human Rights, as well as the preparatory work done by UNESCO and the International Congress on Education for Human Rights and Democracy held i n Montreal in March 1993. It also had in mind the Vienna Dec­ laration that came out of the World Conference on Human Rights held in Vienna in Ju ne of th at same year. Particularly relevant for the purposes of this drafting history are the first two re­ citals of thi s Human Ri ghts Education Resolution : The

General Assembly, Guided by the fundamental and universal principles ens hrined in the Charter of the United Nati ons and the Universal Declaration of Human Rights, Reaffirming article 26 of the Universal Declaration of Human Rights, acco rd ing to which "edu­ cation shall be directe d to the full development of the human personality and to the stre ng th­ ening of respect for human rights and fundamental free doms , . . Proclaims the ten-ye ar period beginning on 1 January 1995 the United Nations D ec ade for Human Rights Education." 71

.126

Chapter 8

The fiftieth anniversary of the Universal Declaration, on December 10, 1998, falls within this Decade for Human Rights Education (1995-2005). The first recital of this resolution mentions the "universal principles enshrined in the Charter and . . . in the Declaration of Human Rights." And the second one quotes Article 26 of the Decla­ ration on how everyone's education is to be directed at "the strengthening of respect for human rights and fundamental freedoms." The phrase "human rights and funda­ mental freedoms" is the standard Charter way of referring to human rights. Thus, the Charter and the Declaration are intertwined in this Proclamation for a UN Decade for Human Rights Education. The connection between the Universal Declaration and human rights education is even closer than the Resolution and Proclamation suggest. It is not just that the Declaration is an authoritative exposition of the principles enunciated in the Charter, and not just that Article 26 of the Declaration makes human rights an educational goal. Human rights education itself is the first and primary purpose of the Universal Declaration as a whole. The entire Declaration was proclaimed by the Third General Assembly, "to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote re­ spect for these rights and freedoms." Resolution 184's reference to Article 26 of the Declaration is appropriate (see Chapter 6). The second paragraph of Article 26 was introduced by A. L. Easterman, the representative of the World jewish Congress to the Working Group of the Sec­ ond Session, where he observed that the first paragraph said nothing "about the spirit governing education which was an essential element. Neglect of this principle in Ger­ many had been the main cause of two catastrophic wars" (SR.8jp. 4). He therefore proposed to add the following article: "This education shall be directed to the full de­ velopment of the human personality, to strengthening respect for human rights and fundamental freedoms and shall combat the spirit of intolerance and hatred against other nations or racial or religious groups everywhere" (p. 4). Bienenfeld, his colleague in the Third Session, reminded the delegates of their earlier commitment to human rights education as an essential component of a good curriculum. He reiterated what the representative of UNESCO had said, namely, that "education in Germany and other fascist countries had been carried out in compli­ ance with the principle of the right of education for everyone; yet the doctrines on which that education had been founded had led to two world wars. If the Declaration failed to define the spirit in which future generations were to be educated, it would lose its value as a guide for humanity. It was necessary to stress the importance of the article devoted to the spirit of education, which was possibly greater than that of