Human Rights for All

I am delighted and honored to be here this evening. And I am particularly grateful for the opportunity to speak to an Australian audience about a subject that has occupied so much of my research time for the past few years the largely forgotten history of the 1948 Universal Declaration of Human Rights. And since some of the most interesting things I learned about the origins of that document involve Australia, I've been looking forward very much to this occasion.

When I go to a lecture, I often wish I had a program like the ones you get at the theatre. I imagine that I am not the only person who likes to know where a speaker is headed (and sometimes how close he or she is to the end). So let me begin with a brief outline of the story I'll be telling. Part I takes place at the UN Founding Conference in San Francisco, where, thanks in large part to the Australian delegation, it was decided that the UN would concern itself with economic and social issues as well as collective security. Part II takes place two years later in the UN Commission that drafted the Universal Declaration of Human Rights, where an interesting fusion took place among diverse visions of social justice. In Part III, I'll fast-forward to the contemporary UN where the 1948 Declaration is now under attack from a variety of quarters. And finally, I will offer some reflections on the current status of the questions that Australia tried to keep at the forefront of international concern.

1. San Francisco, 1945

In April 1945, when the Allied leaders invited delegates from 50 countries to put the finishing touches on the UN Charter, it was by no means clear that the protection of human rights would figure among the purposes of the new organization. What Churchill, Roosevelt, and Stalin had in mind mainly was a collective security arrangement for the postwar period. It was only after they had settled everything that was most important to them that they called a conference where smaller powers could participate. Or more precisely where they planned to give other countries the sense of participating. As Churchill put it to Roosevelt, "The eagles should permit the small birds to sing and care not wherefore they sang." The idea of human rights was so far from the minds of the major powers that they mentioned it only once, briefly, in their draft proposal for the UN Charter.

Among the delegates who came to the San Francisco conference, however, were several who had a more expansive vision of what the new organization should be like. They had not traveled long distances in wartime just to serve as rubber stamps. The twelve-member Australian delegation had had a particularly grueling trip. As recounted by Mrs. Jessie Street, the only woman in the group, they made the two day voyage in a bomber plane, seated against the wall with no place to rest their heads except on their neighbor's shoulder. Once they reached their destination, Australia's Minister for External Affairs, Herbert Evatt, lost no time in becoming a thorn in the side of the major powers. He quickly got the "eagles'" full attention by spearheading a movement to clip their wings by limiting the veto power of the five permanent members of the Security Council. That initiative gathered such momentum, that an alarmed Harry Truman called the Australian Prime Minister to ask that Evatt be reined in. The insurgency subsided only after the Big Three representatives admitted in public that they would rather call the whole thing off than limit the veto. An American delegate dramatized the point by ripping up a piece of paper and saying that's what would happen to the Charter if the veto power was curtailed.

Though the veto challenge failed, it established Evatt as a leading spokesman for what were then called the "small nations." ("Small", I need hardly note, referred to their clout and not their size.) Evatt devoted most of his time at the podium to argue that the plan for collective security could not be effective unless it had a foundation in economic and social justice, especially full employment. He told the delegates that, "The great threat to human freedom we have been combating for five years arose out of and was made possible by an environment dominated by unemployment and poverty." And he predicted that the key issues in the postwar era would be economic. Broad support for that view led to the adoption of an Australian proposal that the UN Charter should list among its purposes the promotion of "higher standards of living, full employment, and conditions of economic and social progress and development." Australia's efforts also led to strengthening the Economic and Social Council, upgrading it from what Evatt called a "discussion group on economics" to a "principal organ" of the UN alongside the Security Council.

Evatt has often been credited with having shown the less powerful countries that they could exert great influence when they acted together. But on the one issue that produced the most unity among the small nations at San Francisco, he remained in the background. That was the Latin-American led initiative to include the protection of human rights among the purposes of the UN. The reactions of the major powers to that idea ranged from outright hostility on the part of the Soviet Union and colonial powers like France and Britain to lack of enthusiasm on the part of the United States. Evatt's silence has been chalked up by his biographers to his concern about the Australian relationship to Papua and New Guinea. But in mid-conference, when the first photographs from the newly liberated concentration camps in Europe began to arrive, the opposition to human rights references melted away. Principles of human rights were inserted into the UN Charter in seven places, and President Truman expressed the sentiments of many when he expressed the hope that the UN would soon produce an international bill of rights.

By all accounts, Evatt's performance at San Francisco seems to have represented the high point of his controversial career. At the end of the conference, the New York Times paid him this tribute: "When Dr. Evatt came here, he was a virtually unknown second-string delegate, with the background of a professor and a Labour politician. He leaves, recognized as the most brilliant and effective voice of the Small Powers, a leading statesman for the world's conscience, the man who was not afraid to force liberalization of the Charter, and who had sense enough not to press his threat so far as to break up the conference." Harry Truman, upon signing the Charter, paid Evatt the compliment of stealing his theme song. "Experience has shown," said Truman, "how deeply the seeds of war are planted by economic rivalry and by social injustice." Economic and social cooperation, he went on, are "part of the very heart of this compact."

The vision championed by the Australian delegation at San Francisco was, of course, highly compatible with the spirit of Roosevelt's New Deal and Truman's Fair Deal. Those ideas would soon have an important influence on the Marshall plan for economic recovery in Europe and on the drafting of the Universal Declaration of Human Rights to which I now turn.

2. The Drafting of the UDHR, 1947-48

One of the first acts of the new UN was to instruct its 18-member Human Rights Commission, chaired by Eleanor Roosevelt, to draw up a set of principles of human decency that could serve as goals to which all member states would pledge themselves to aspire. The idea was to create a kind of yardstick by which every country could measure its own and others' progress.

Now, as you may imagine, that was not an easy task, for the UN even then was a highly diverse organization. The project presupposed that there are a few common standards that can and should be accepted by people of all nations and cultures. But no one was really sure whether any rights could be said to be universal or, if so, what they might be. So the UN asked a group of well-known philosophers including several from non-Western countries to conduct an investigation into whether there were any principles that were in fact widely shared among diverse cultural and religious traditions. In due course, the philosophers reported that somewhat to their surprise the lists of principles they received from all over the world were remarkably similar (although not always formulated as "rights").

The experience of the statespersons on the Human Rights Commission was similar in the sense that they had relatively little difficulty coming to agreement on a short list of political, civil, social and economic rights. (Thanks to the persistence of Mrs. Street and her fellow members of the UN's first Commission on the Status of Women, the drafters made clear that all these rights belong to women as well as to men.)

Now, when I say that there was relatively little disagreement over what rights should be included, I do not mean to imply that all was sweetness and light in the drafting process. Far from it. But where controversies flared up was mainly over how and by whom the rights should be implemented. The Australian member of the drafting sub-committee, Col. William Roy Hodgson, was chief among those who wanted the Commission to propose mechanisms for enforcement. He pushed hard for the establishment of some sort of international tribunal where individuals could file complaints, or, alternatively, for amending the U.N. Charter to include binding rights commitments, or at the very least for a covenant to make the declaration legally enforceable.

Hodgson, a veteran of Gallipoli, was by all accounts very knowledgeable about international relations, but perhaps not cut out for diplomacy. He was described this way in a confidential U.S. State Department memo: "Col. Hodgson's extremely critical attitude towards most foreign countries is said to make it difficult for him to give a proper representation of their affairs to the Australian Government, and his cynical attitude towards foreigners reportedly makes his dealings with other missions unsatisfactory. He has a peppery aggressive manner that seems to be aggravated by consumption of small amounts of alcohol. However, his blustering and provocative approach is said often to hide a very thorough knowledge of the question under consideration." Hodgson's almost exclusive focus on enforcement mechanisms may have made him a man ahead of his time, but it alienated the Americans, the British and the Soviets, and tended to lessen his effectiveness in Commission discussions.

The most heated arguments in those discussions involved the social and economic rights. It is a common misconception in the United States today that those rights were put in the UDHR as a concession to the Soviets. The fact is, however, that they had strong support across the board. After all, rights to a minimum standard of living, to work, to social security in the event of unemployment or disability, to form and join unions, and to education were already part of the legal landscape in the industrialized countries. Eleanor Roosevelt did no more than state the principles of her late husband's New Deal program when she said the US government "favored the inclusion of economic and social rights in the Declaration, because no personal liberty can exist without economic security and independence."

The most ardent advocates of these rights were not the Soviets, but the Latin Americans. In fact, one of the principal models for the Universal Declaration was the draft Pan-American Declaration of the Rights and Duties of Man (later known as the Bogota Declaration). That document the world's first international rights declaration had in turn been influenced to some extent by Catholic social thought. That is why certain verbal formulations in the UN Declaration have a familiar ring to persons acquainted with the social encyclicals. For example: the use of the word "person" rather than "individual"; the emphasis on human "dignity"; the affirmation of the worker's right to just remuneration for himself and his family; the right of the family to "protection by society and the state"; the prior right of parents to choose the education of their children; and the provision that motherhood and childhood are entitled to "special care and assistance."

By the 1940s, those ideas had found their way into the legal systems of many Latin American and continental European countries via the programs of Christian Democratic and Christian Social political parties, and Christian labor organizations.

Three features of the Latin American draft made it an appealing resource for the drafters of the UDHR: (1st) It was based on cross-national research. (2nd) It was a prime example of the trend in modern constitutions to combine "first generation" political and civil liberties with "second generation" rights relating to social justice. And (3rd) it resonated with non-Western traditions by emphasizing the social dimension of human personhood and that rights are subject to duties and limitations in favor of the common good. In other words, it provided a model of how to avoid extremes of individualism or collectivism. And that, in turn, helped the UN framers to secure a broad cross-national consensus.

Ironically, the only countries that balked on the social and economic provisions were the members of the Soviet bloc. Their main objection was to the language providing that the rights in question would be implemented "in accordance with the [political] organization and [economic] resources" of each state. The reference to "organization" meant that countries could meet their obligations through private as well as public means. That was important to representatives of liberal democracies who were concerned not to dampen private initiative or to give too much power to the State. It also reflected the view that it is necessary for different countries to be able to experiment with different methods of reducing unemployment and achieving better standards of living. As Mrs. Roosevelt put it, "No one as yet seems to know quite how to do this without a degree of planning which will be considered too restrictive for freedom."
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That approach was unacceptable to the Soviets who wanted to specify that the State must be the exclusive protector of these rights. They also objected to the provision that implementation of the social and economic rights would be in accordance with each state's "resources." That language was important to representatives of developing countries like Egypt and India. But to the Soviets it seemed to imply that these rights were less important than political and civil rights even though the Declaration expressly said they were "indispensable to human dignity."

In the end, when the Declaration was approved by the UN General Assembly without a single dissenting vote on December 10, 1948, the Soviet bloc countries abstained. The only other abstainers were South Africa and, ominously, Saudi Arabia, which alone among nine predominantly Muslim nations, objected to the articles on religious freedom and women's rights. Presiding over the General Assembly on that historic night, incidentally, was Herbert Evatt.

At the time, supporters of human rights were of different minds about the Declaration's worth and prospects. Many, like Eleanor Roosevelt, regarded it as a milestone in the history of freedom on a par with the great eighteenth century declarations. To others, like Col. Hodgson, it seemed to be mainly a collection of pious phrases meaningless without courts, policemen and armies to back them up.

But almost immediately upon its adoption, the Declaration showed that a non-binding document can exert influence. For one thing, it became the principal model for the many countries that were adopting new constitutions in the post-war years. The Declaration also served as a major rhetorical rallying point for independence movements in colonialized countries and for groups that were seeking to train the searchlight of publicity on serious rights violations in various parts of the world.

Another place where the Declaration found a warm reception was the Holy See. In the fall of 1948, when the Declaration was being debated by the UN in Paris, the papal nuncio in that city, one Angelo Roncalli, took a keen interest. Later, as Pope John XXIII, he surprised observers by the extent to which he adopted the modern language of rights as part of a largely successful effort to make the Church's social teachings intelligible to "all men and women of good will." It was a case of reciprocal influence, in the sense that one tributary to the Declaration had been Christian social thought the fruit of the Church's own reflections on the Enlightenment, the eighteenth century revolutions, socialism, and the labor question in the light of Scripture, tradition, and her own experience with human strengths and frailties.

With such a start, who knows what might have come of the international human rights project if the Cold War had not intervened? But it did intervene, and wrought havoc with the principle of interdependence of fundamental rights. The US emphasized the political and civil rights, while the Soviet bloc championed the social and economic provisions. What the framers had joined together the two super-powers drove asunder.

With the end of the Cold War, there was a veritable explosion of interest in international human rights. But by that time the habit of playing pick and choose was well entrenched, and the social and economic rights did not figure on the agenda of any major human rights organization. If you've been following your program, this brings me to part three the contemporary scene, and what I call:

3. The Deconstruction of the Declaration

Over the past decade, the UDHR has come under assault from a number of directions.

In some parts of the world, there has been a move to reject the idea of universal rights altogether. Thus, when citizens in some African and Asian countries began to accuse their governments of violating the rights that belong to them as human beings, authoritarian leaders claimed that the Declaration did not reflect African or Asian values. In the Muslim world, the rise of political Islam brought charges that the Declaration was nothing but a "western" document (even though distinguished Muslim thinkers had participated actively in its preparation).

Another type of assault was mounted from within the West itself. There, human rights groups continued the Cold War practice of selectively promoting the parts of the Declaration they favored while ignoring others. To make matters worse, many rights activists lost sight of the fact that "universality" to the Declaration's framers did not mean uniformity. The framers expected, rather, that its principles could be brought to life in different cultures in a legitimate variety of ways (so long as none of the principles were left out).

But as advocacy groups multiplied and became more specialized, some acted as though their favorite rights trumped all others. The United Nations, with its remoteness from public scrutiny and democratic accountability, became especially attractive to groups whose programs had trouble passing muster in ordinary political processes in the liberal democracies.
I did not realize the degree to which the Declaration was under open attack from such groups until I attended the UN Women's Conference in Beijing in 1995. The purpose of that conference was to put the final touches on a document meant to serve as a guide for the improvement of the status of women. In keeping with UN practice, the conference draft contained many cross-references to the parent of all such documents, the 1948 Declaration.

One might have expected those cross-references to be non-controversial. But a full week of the two-week conference was consumed with debate over the efforts of a European-led coalition to delete references to the guarantee of religious freedom; the protection of the family and motherhood; and the parents' prior right concerning education.

The reason the Europeans wanted to eliminate those principles, apparently, was that they were seen as obstacles to a set of new sexual and reproductive rights which the coalition hoped to have recognized as universal rights. Now, UN procedures contemplate that the canon of human rights may be amended from time to time, but they establish a very solemn process for doing that. The Europeans, whether by ignorance or design, were trying to turn that process on its head. Rather than consulting widely to find out which values are so deeply grounded as to justify promulgating them as universal rights, the effort here was to try to get their own agenda items declared universal so that they could then be imposed on the world's cultures.

Even more startling was the fact that the Europeans in most cases were going against their own legal systems. As a legal comparatist, I recognized that provisions they were trying to delete were identical to constitutional provisions in most of their home countries. During the first week, I visited the heads of several delegations and asked them whether they really meant to attack their own constitutions. Finally, after getting no reply, my delegation sent a press release to the major European newspapers asking whether the positions the European delegates were taking in Beijing really represented official policy or public sentiment at home. Within 24 hours after we publicized what was going on, the Europeans agreed to let the cross-references stand.

But by that time, they had used up half the conference. Which brings me to what was most disappointing about the behavior of the Europeans. The Beijing conference was announced as a conference on three topics that Herbert Evatt and other founders of the UN saw as intimately connected: equality, development, and peace. But because the proceedings were dominated by first-world agendas, painfully little attention was paid to development or to the situations of women and girls in poor countries.

The Beijing conference was an illustration of how susceptible international institutions are to capture by special interests. Mrs. Jessie Street, to her credit, foresaw this long ago when she wrote in her memoir, "I do not suppose there is a more vulnerable spot in the world for the operation of pressure groups than the headquarters of the UN." Even today, we know very little about the agendas and the financial backing of the non-governmental organizations that swarm about the UN and its agencies. But since virtually of them are North American or North European-based, the charge of "Western" cultural imperialism has become one that cannot be easily dismissed even though it is often made in bad faith.

That point has not escaped the attention of Nobel-Prize winning economist Amartya Sen. Professor Sen, a native of Calcutta who has devoted much of his career to combating inequality and world hunger, has criticized international policy makers for "giving priority to their own ideas" and for exhibiting "a dangerous tendency to treat people in poor countries, not as reasonable beings, [or] allies faced with a common problem, but as impulsive and uncontrolled sources of great social harm, in need of strong discipline."

Since Sen wrote those words in 1994, the dangers he warned of have increased. Consider, for example, CNN founder Ted Turner's much-publicized billion dollar "gift" to the U.N. in 1997. Many people in developing countries rejoiced when Mr. Turner announced that his donation was to help "the poorest of the poor." It soon appeared, however, that the funds would be disbursed only upon approval by Turner's appointee, a former State Department official named Timothy Wirth. Mr. Wirth is best known as an advocate of aggressive population control so aggressive that he even praised China's coercive one-child-per-family policy as "very, very effective high-investment family planning." Turner's billion-dollar gesture thus looks less like a gift than a take-over bid aimed at U.N. agencies with privileged access to populations deemed by Wirth and Turner to be in need of management.

Add to this that many NGOs have been deeply influenced by simplistic attitudes toward rights that gained currency in the United States in the 1960s and 70s the tendency to think of rights without individual or social responsibilities, to tout one's favorite rights as absolute while ignoring others; and to ignore the relation of rights to constitutional government and the rule of law. Those attitudes are profoundly inconsistent with and potentially destructive of the balanced vision of the UDHR.

In sum, the post-Cold War era has been a time of testing for the human rights project to the point where one might say of the Universal Declaration what Abraham Lincoln once said of the Declaration of Independence: "It has proved a stumbling block to tyrants, and ever will, unless brought into contempt by its pretended friends."
And this brings me to Part IV of these remarks:

4. Hodgson's Choice and Evatt's Enigma

Col. Hodgson's choice in the Human Rights Commission was to devote most of his energy to a losing battle for international enforcement mechanisms. With hindsight, we know that he was overly pessimistic in his view that human rights would be meaningless without such mechanisms. The most dramatic advances in human rights in later years the fall of apartheid in South Africa and the collapse of the East European totalitarian regimes owed more to the power of ideas carried far and wide by activists and modern communications than to the many legally binding covenants and treaties that were then in force.

But the persistence of appalling human rights violations has kept alive the hope of Hodgson and others that some way could be found to address these problems through international law. The difficulty, however, is that international legal remedies work best where they are least needed, that is, where there is fairly wide acceptance of their legitimacy, as in the case of the European Court of Human Rights.

The most intractable enforcement problems arise just where the worst violations occur where rogue nations are the rights violators, or where anarchy prevails owing to civil war or other conflicts between groups. This raises the question of whether Evatt, Mrs. Roosevelt, and others were right to argue that the best approach is to try to reduce the frequency of atrocities by addressing their underlying causes which they believed to reside in unjust discrimination, poverty, and lack of economic opportunity. That conviction was embodied in the Universal Declaration's insistence on the link between freedom and social justice, and on the relation of both to peace. But here is the enigma does that theory still hold in the post-Cold War world where so much conflict seems to be ideological, religious, or ethnic in nature?

I think the only honest answer one can give is that we don't know how economic factors enter into that deadly mix of hopelessness and resentment because we haven't tried very hard to remedy economic conditions in the poorest parts of the world. The parts of the Universal Declaration that speak to economic and social justice are almost completely ignored today even by the major human rights organizations. It is a moral scandal that the poorest people and countries are being increasingly marginalized in the global economic order just when, perhaps for the first time in human history, we have recognized that poverty is not necessary, not fixed in the order of things.

It seems appropriate in this lecture named for Dom Helder Camara to point out that over the years the most consistent and vigorous institutional defender of all of the Declaration's principles has been the Catholic Church. At a time when those in affluent nations seem increasingly to be washing their hands of poor countries and peoples, it is often the Church, and only the Church, that continues to lift up before the world the moral imperative of addressing poverty. In contrast to the well-intentioned New Dealers of old, or the not so well intentioned Ted Turners of the present, she does not treat poor people as problems to be managed and solved. Rather, she exhorts us to view the disadvantaged as persons whose human potential deserves to be realized. She does not prescribe specific policies or programs, but rather entreats us to use our God-given intelligence. We already know a good deal about how poverty has been conquered, wealth created, and the formerly poor empowered to unleash their creativity. But we need to know more, and to apply what we learn. We are in a better position today than in any other period of human history to make good on the double pledge the nations made in December 1948: "to promote social progress and better standards of life in larger freedom."

It seems to me, therefore, that the most pressing task for friends of human rights today is to re-unite those two halves of the divided soul of the human rights project its commitment to personal freedom and its sense of one human family for which we all bear a common responsibility. No one has put it better than Pope John Paul II in his speech to the UN on its fiftieth anniversary, where he said: "Inspired by the example of all those who have taken the risk of freedom, can we not recommit ourselves also to taking the risk of solidarity and thus the risk of peace?"

It seems to me that how we respond to that challenge will determine, to no small degree, the course of the human future in these dangerous times.