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 .

·

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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 -

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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 free