Hoover, J. (2013). Rereading the Universal Declaration of Human Rights: plurality and contestation,

not consensus. Journal of Human Rights, 12(2), doi: 10.1080/14754835.2013.784663

<http://dx.doi.org/10.1080/14754835.2013.784663>

City Research Online

Original citation: Hoover, J. (2013). Rereading the Universal Declaration of Human Rights: plurality

and contestation, not consensus. Journal of Human Rights, 12(2), doi:

10.1080/14754835.2013.784663 <http://dx.doi.org/10.1080/14754835.2013.784663>

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1

Rereading the Universal Declaration of Human Rights: Plurality and Contestation, not Consensus

Dr Joe Hoover

International Relations Department, LSE Houghton Street, London WC2A 2AE

[email protected] +44 (0)207 955 7389 (work) +44 (0)207 955 7446 (fax)

+44 (0)7775 430 520 (mobile)

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Author Biography: Joe Hoover is a Fellow in the Department of International Relations at the London School of Economics and Political Science. His research focuses on global ethics and international political theory, particularly the importance of human rights in world politics, both in international law and global social movements. He has published work in International Theory, Human Rights Review, The Journal of Intervention and Statebuilding, International Affairs, Millennium: Journal of International Studies and The Journal of Critical Globalisation Studies.

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Abstract: In this paper I examine the drafting of the Universal Declaration of Human Rights. My analysis counters conventional narratives of consensus and imposition that characterize the development of the UN human rights regime. The central argument is that within the founding text of the contemporary human rights movement there is an ambiguous account of rights, which exceeds easy categorization of international rights as universal moral principles or merely an ideological imposition by liberal powers. Acknowledging this ambiguous history, I argue, opens the way to an understanding of human rights as an ongoing politics, a contestation over the terms of legitimate political authority and the meaning of “humanity” as a political identity

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Rereading the Universal Declaration of Human Rights: Plurality and Contestation, not Consensus 1. Reading the Universal Declaration of Human Rights

While human rights have long provided a vision for improving social life, the conventional

conception of those rights has been as universal moral principles based on each individual’s

inherent dignity, which make clear the requirements of any and all legitimate political authority.

From the natural law tradition offering universal standards constraining all sovereigns

(Koskenniemi 2009; Finnis 2011), to modern “political” accounts of international human rights

drawing limits around the state’s right to self-determination (Baynes 2009), our understanding of

human rights is dominated by a legislative conception of rights. This legislative conception starts

from some set of foundational moral principles – arrived at by divine dictate, transcendental reason,

constitutional authority, etc. – that then form the basis for legitimate law and provide an authority

beyond the political.1 The legislative conception of universal human rights has been subjected to

criticisms that it reinforces rather than challenges state power, bolsters an objectionable liberal-

capitalist order, and neglects the violence done to difference by Eurocentric accounts of human

nature (Douzinas 2002; Evans 2005; Tascon and Ife 2008; Žižek 2005). It has also been revised

repeatedly to take account of these objections (Ackerly 2008; Benhabib 2008; Cohen 2004;

Langlois 2002). At the centre of this still-ongoing debate is the unavoidable claim – inherent to the

legislative conception of human rights – that humanity has a common, and perhaps singular, moral

nature, shared by each of us, which provides a universal standard that all political authorities should

meet. The persistence of ethical diversity threatens to reduce this moral authority to mere coercion

and imposition, to make human rights an imperial ideology (Pagden 2003). It is in front of this

conceptual backdrop that the ratification of the Universal Declaration of Human Rights (UDHR) is

taken to represent a vital moment of consensus that provides the authority necessary to the

legislative conception of human rights. Critics, however, call our attention to the shadow cast by the

historical imposition of human rights as an ideology justifying Western political dominance and

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marginalizing weaker states and non-Western societies (Mutua 2002). Yet, we need not be confined

to such accounts of the UDHR’s significance if we reconsider our understanding of human rights,

which in turn alters the contemporary relevance of the UDHR.

In contrast to the legislative account of human rights, we can see an emerging agonistic

understanding that focuses on the use of rights as contentious political claims that demand social

transformation (Honig 2009; Hoover and Iñiguez De Heredia 2011; Schaap 2011).2 This

understanding is based on the use of human rights as a political tool, particularly by social

movements that challenge institutionalized authority with new rights claims (Goodale 2009; Hunt

2008; Stammers 2009). An agonistic understanding of human rights places the plurality and

discontinuity of rights claims at the fore, focusing on the way rights open up new political

possibilities, in contrast to the legislative understanding that focuses on delimiting a core set of

rights that constrains authority. Political theorist Bonnie Honig argues that legislative accounts of

human rights ‘invite us to assess new rights-claims as judges would – in terms of their analogical fit

to previous ones, of the appositeness of the claim to legitimate subsumption under existing higher

law (whether constitutional or universal) in a gradually unfolding linear time, of whether the new

rights were in nascent from always already’ part of the human rights ideal (2008, 104–105). An

agonistic understanding of rights shifts our focus, and as Honig suggests, ‘there is another way to

think about some of these emergent rights, in relation to different contexts, not against the backdrop

of the increasing universalization of rights as such but rather in relation to a politics of rights and a

politics of foreignness that might (yet) go lots of different ways.’ (Honig 2008, 95) Rethinking

rights and rereading the UDHR as agonistic provides us with an alternate way of understanding

human rights, an alternative that focuses on contestation and discontinuity.

Human rights entail a particular logic, which shapes the politics that emerges. Human rights

make use of the category of humanity to make a moral claim upon the legitimate organization of

social life – these claims are formally universal in reference and global in scope, but the nature of

these claims is not fixed. A legislative account of human rights presumes some final and

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fundamental universality to human identity. If we instead view human rights agonistically, rights

claims open up a contest over the significance of humanity as an identity, which places the question

of legitimate social organization into a global context, but without presuming that there is a single

or final set of rights, nor a single form that legitimate political authority must take. The central

purpose of this article is to suggest that if we think of human rights differently, such that ‘[e]ach new

right inaugurates a new world’ (Honig 2008, 104), then the historical meaning of the drafting of the

UDHR changes. A further purpose is to attend to the details of the drafting of the UDHR as an act

of claiming human rights, so that it can inform an agonistic understanding of human rights. Before

turning to an analysis of the drafting of the UDHR, I consider both the conventional significance it

has for supporters and critics, and the general question of how the history of human rights has been

understood.

Our understanding of the significance of the UDHR tends to oscillate between two poles: on

one side it can be seen as a moment of founding for the human rights regime, based on the

documents unique status as a symbol of moral consensus (Cerna 1994, 740–752), while on the other

hand it can be seen as a political imposition by the post-war liberal powers intent upon remaking

the international order in their image (Mutua 2007, 552–555).

Forty-five years ago, on 10 December 1948, the international community adopted by consensus, the Universal Declaration of Human Rights, still the preeminent document in the growing corpus of human rights instruments. Today, a group of nations is seeking to redefine the content of the term “human rights” against the will of the Western states. This group sees the current definition as part of the ideological patrimony of Western civilization. They argue that the principles enshrined in the Universal Declaration reflect Western values and not their own. (Cerna 1994, 740)

The UDHR has a special status in either narrative, but my primary task is to upset these competing

narratives and the legislative understanding of rights that makes them plausible. Many histories of

the UDHR have been written, all of them acknowledge the complex political context of the drafting

to some degree (Glendon 2006; Morsink 1999; Lauren 2003; Waltz 2002), but the connection

between how we read that history through our understanding of human rights is under appreciated

and too little explored. While historical knowledge of human rights is invaluable for deflating

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myths, our return to past events is unavoidably reflected though the conceptual framing we carry

with us, which suggests that reading the UDHR agonistically will change how we understand that

historical moment and provide insight into contemporary human rights politics.3

In the consensus narrative, the General Assembly’s endorsement of the UDHR symbolized a

break with a terrible era of world politics – based on narrow state interests, nationalism, colonialism

and racist ideologies – and provided a cornerstone of the foundation upon which a new international

order could be built. ‘The human rights instruments and covenants, as conceptualized in [the]

UDHR and other major UN conventions, exhibit common narrative standards based on the widest

attainable consensus among nations with diverse cultural traditions, religious doctrines, and

ideological systems.’ (Chowdhury 2008, 349) The consensus achieved by the UDHR, reflecting

both the content and the process of its drafting, then served as a basis for the development of human

rights that followed.

There appears to be consensus within the UN and among states, academics, and human rights advocates that the UDHR is the most significant embodiment of human rights standards. It has been described as “showing signs of having achieved the status of holy writ within the human rights movement.” Elsewhere, the UDHR has been described generously as the “spiritual parent” of other human rights documents. (Mutua 2007, 553)

Even where care is taken to acknowledge the limits of the original consensus in 1948, which

excluded colonized peoples and was opposed via abstention by six communist states, as well as

Saudi Arabia and South Africa, this imperfect consensus is presented as a political failing, rather

than a failure of the rights regime as such.

Given that eight countries abstained out of an international body made up then of only fifty-six states – most of which were from the West or politically “Westernized” – the Universal Declaration of Human Rights was thus not born “universal,” even for those who took direct part in the process of its elaboration. There is no denying, therefore, that those who had not participated in the negotiations and who labeled the Declaration as a “Western product” did indeed have a point. Having had no voice in the negotiations period from 1946 to 1948 because they were, largely, Western colonies, Afro-Asian countries had a valid reason to question the legitimacy of the Declaration’s authority over every cultural or political system. To a lesser extent, the same logic applied to the European socialist states, which abstained in the vote despite the inclusion in the document of the social and economic rights they had firmly defended. Nevertheless, all of them quickly lost the grounds for their objections. (Alves 2000, 481–482)

8

While failings are admitted, the human rights project is redeemed by the universality the UDHR

later attained.

Sophisticated analyses of the UDHR point to the way in which its break with traditional

international politics was resisted by both “Western” and “non-Western” states – reading it as the

founding document for a new universal movement that is still unfolding (Moyn 2010, 81–83).

Within this line of thinking, overcoming the biases of the state-centric system is key.

Only by reiterating that human rights treaties are constructed outcomes of negotiations that demand change in all discriminatory and repressive cultures, can we stop the selective adoption of human rights and challenge all states that give lip service to human rights but continue to violate the rights of their citizens, support repressive regimes, or uphold corporate interests over human rights and dignity. (Arat 2006, 437)

While the UDHR itself may not represent a perfect or final consensus, it is a pivotal starting point

for a more fully consensual and international human rights regime – for example, paving the way

for the consensus reached on the 1993 UN Vienna Declaration on human rights (UN General

Assembly 1993).

Drawing representatives from the existing major cultures, religions, and sociopolitical systems, with delegations from over 170 countries, in a world virtually without colonies, the Vienna Conference was the largest international gathering ever convened on the theme of human rights. Its final document, the Vienna Declaration and Programme of Action – adopted by consensus without a vote or reservations, although with some interpretive statements – unambiguously affirms, in Article 1 that: “The universal nature of these rights and freedoms is beyond question.” (Alves 2000, 482)

The Vienna Declaration, then, completes the consensus that justifies a world order based on human

rights. This second moment of consensus, however, essentially confirms the universalism of the

UDHR and redeems the imperfections of the original drafting process.

The contrasting narrative is one of ideological imposition and political dominance. In this

narrative the US, and Western states generally, used their political superiority after the Second

World War (WWII) to impose a new international order upon the rest of the world (Mazower

2009). This was resisted by communist states at the time and made possible, at least in part, by the

marginal status of many of the world’s peoples still living under colonial rule.

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The narrow club of states in the UN at the time seriously compromised the normative universality of the movement’s founding document. Antonio Cassese, the former President of the International Criminal Tribunal for the Former Yugoslavia, wrote that the West imposed its philosophy of human rights on the rest of the world because it dominated the United Nations at its inception. (Mutua 2007, 554)

Therefore, rather than providing a moral basis for this new world politics, the UDHR merely

continues the dominance of the West by imposing a distinctly liberal conception of individual

human rights on the rest of the world. This critique runs deeper than an accusation of bare political

domination. By justifying the content of human rights through an appeal to a universal and singular

human essence, Western powers infused the new order with their own ideology. ‘The official

documents of human rights, therefore, embody a specific cultural world-view: that of the modern

Western world, but more insidiously, in the very assumption of ‘human’ that this also entails.’

(Tascon and Ife 2008, 318) The appeal to human nature and dignity justifies the imposition of

human rights norms on everyone. It is this universal account of humanity and the assumed

superiority of a liberal international order, not simply the act of exercising Western power, which is

objectionable.

This critique retains its force even if one does not assign nefarious motives to the drafters of

the UDHR. ‘Ultimately the assumption of the natural dignity of human being became part of the

UDHR despite the attempts by the drafters to keep the language neutral on this topic.’ (Parekh

2007, 763) There is, it seems, an irresolvable contradiction in the idea of human rights – it requires

an appeal to some feature of our essential humanity to justify the legitimacy of human rights, but

that appeal is always partial (Hoover 2012). ‘Though the UDHR is based on an essentialist view of

the human being, the drafters were aware of the difficulties that come with such a basis. This

historical moment reveals the depth of the problem that we are still trying to reconcile.’ (Parekh

2007, 764) Whether critics see room for further practical agreement on human rights within the UN

framework, or think that the regime is deeply compromised by its biases and inherent tensions, the

presumed universality of the UDHR is seen as a moment to be overcome not celebrated.

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Understanding human rights in agonistic terms suggests that we attend to their political

content more closely, which the legislative conception of human rights obscures with its claims to

be apolitical (Moyn 2010, 212–227). This claims is sustained by the supposed moral consensus that

justifies human rights – famously defended by Michael Ignatieff (2001), but which has been

challenged as limited and ideological (W. Brown 2004). An agonistic account of rights rejects the

idea that we can achieve an apolitical moral consensus on the meaning or significance of human

nature, suggesting that any such account will be partial and contestable. Further, it focuses our

attention on the politics that follow from our account of humanity as a moral identity, such that

even a limited political vision is still political and cannot be taken as incontestable or inherently

desirable. An agonistic understanding of human rights suggests that we should see the UDHR’s

drafting and signing as a pivotal moment in an ongoing debate about human rights, which can be

understood in terms of two key issues: (1) the meaning of human dignity, and (2) the implications

of human rights claims for the transformation of world politics. To understand why these two issues

emerge and why the UDHR responds to them in the way that it does, we need to appreciate the

context of the drafting – namely as a particular response to the process of post-WWII

reconstruction. The general purpose of human rights at the time was to affirm the significance, and

reality, of our common humanity in the face of nationalist and racist ideologies, and as a nascent

challenge to the supremacy of state sovereignty as the organizing principle of world politics.

Further, an agonistic understanding of rights undermines the traditional narratives in which the

UDHR’s consensus provided the basis for future progress, as if the guaranteed promise of the future

was necessarily contained in the past. Seeing the human rights project as open to both regressive

and radical change, and progressing along plural lines of development, undermines and complicates

criticisms that it is a limited political project imposed by powerful states.

The debates that occurred during the drafting of the UDHR suggest many of those involved

saw themselves as providing a foundation to build a new world politics, that is, thinking very much

in terms of a legislative understanding of rights. My own argument is not that thinking about human

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rights agonistically reveals the true intentions of the drafters but rather that adopting an agonistic

understanding we can see the drafters’ disagreements as exemplifying the ambiguous and contested

nature of human dignity within the supposed consensus found in the UDHR, and demonstrating a

self-conscious and partial effort to reconstruct the institutions of world politics.4 In the following

section, I look at how the history of human rights is told and how this informs our understanding of

the historical context of the UDHR before turning to the debates that took place during the drafting

process. In the third section I focus on the debates during the drafting process concerning human

dignity, and in the fourth section I focus on the alternative political orders considered in the

drafting, emphasizing that the settlement that was reached was a specific and contested response to

their contemporary problems and not the final word on the shape of the international order. Finally,

in conclusion, I offer a brief account of the significance of this rereading of the UDHR for how we

understand the human rights project.

2. The Contested Historiography of Human Rights and the Context of the UDHR

How one understands the importance of the UDHR depends in part on how one understands

the history of human rights. A dominant strain in the literature searches for the deep historical roots

of the idea.

Since the phrase was consecrated in English in the 1940s, and with increasing frequency in the last few decades, there have been many attempts to lay out the deep sources of human rights… The worst consequence of the myth of deep roots they provide is that they distract from the real conditions for the historical developments they claim to explain. (Moyn 2010, 11–12)

As a result the history of human rights is often written in broad stokes and as a progressive

narrative moving from natural rights to universal human rights.5 More rigorous historical works

examining the details of how the idea and discourse of human rights emerged, as well as the

distinctive move to an international conception of these rights after WWII have begun to challenge

this grand-narrative approach.6 Nonetheless, how we understand human rights matters for how we

write and read their history.7

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Does the UDHR represent an important step in the progressive development of human rights

as a universal morality?8 If so, then it becomes a story of the search for universal rights that provide

a single foundation for legitimate political authority – which is very much a story of Western

political development spreading to the rest of the world (Charvet and Kaczynska-Nay 2008, 42–78).

Or is it a disruptive event, one that grows out of a movement advocating for international human

rights in opposition to an international order dominated by the inviolability of state sovereignty?9 If

so, the UDHR is a central chapter in the story of the revision of the European international order,

where sovereignty is tamed through international organizations and treaties that articulate universal

human rights as a central pillar in a new international legal order (Afshari 2007, 6–9).10 Or, finally,

is the UDHR a milestone in the development of democratic politics, in which social movement use

human rights to challenge established authorities? Histories of popular political movements,

working to realize a variety of political goals through universalist appeals suggest that the UDHR

can be seen as emerging from a plurality of disparate developments that nonetheless form an

identifiable tradition of democratic transformation (Lauren 2003, 37–70; Korey 1998, 29–50;

Kurasawa 2007, 1–22). These different ways of constructing the history of human rights depend on

how we understand human rights.

The dominant account, leading to the view of the UDHR as a foundational moment of

consensus, has been one of an expansive history of moral universalism that culminates in the

utopian project of human rights in the twentieth century. A more skeptical reading suggests that

human rights are far newer and break with past legal and moral traditions in the post-WWII era.

Both readings, however, are tied together by a legislative understanding of rights. In adopting an

agonistic understanding of human rights, I want to suggest that the diverse histories we tell are the

result of the ambiguity of the idea of human rights itself. The ambiguity of human rights is not

unique, as a matter of its historical development, but acknowledging and even affirming that

ambiguity in our normative conception of human rights is a distinctive aspect of an agonistic

approach. Further, the plural ways we can represent the history of human rights shows how the

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concept is contested and always political. The reading of the UDHR I develop here is not only

concerned with the use of rights to further democratic politics, which it supports, but also with the

contradictory uses and consequences of human rights claims.

Whatever historical understanding of rights we take up, the specific concept of international

human rights only begins to feature in modern international law in the late 19th century, most

notably in the Geneva Conventions addressing the lawful treatment of wounded and captured

combatants, as well as non-combatants and civilians. An explicit internationalist agenda, aimed at

undermining the traditional balance of power system emerges as a significant political force after

the First World War (WWI), and while they were not formal human rights organizations, the

League of Nations and the International Labour Organization did express concern for the rights of

individuals and peoples as an important part of maintaining international peace (Lauren 2003, 71–

102; Burgers 1992). In the inter-war period and during the WWII the idea of human rights, and

specifically an international law of human rights, gained momentum among intellectuals, activists

and civil society organizations. Numerous associations, including labor unions, religious societies

and political campaigns, embraced the idea of an international law of human rights and pushed

reluctant states to uphold them. For example political groups such as the Commission to Study the

Organization of Peace and the American Association for the United Nations, as well as religious

groups like the Federal Council of Churches and the American Jewish Committee actively worked

to include human rights in the UN Charter (Korey 1998, 30–33). Labor organizations were active

early on, including the American Federation of Labor, which submitted a draft declaration to the

committee that produced the UDHR (Morsink 1999, 168–169). Individually, H. G. Wells, Franklin

and Eleanor Roosevelt, Jacques Maritain, W. E. B. Du Bois and Kwame Nkrumah were influential

public intellectuals calling for human rights at the time, though ranging in their views from utopian

socialism to Pan-Africanism (Lauren 2003, 147–154). The idea of human rights gained a degree of

plausibility and acceptability among governments as well, and not just among the major Allied

powers using them to justify their war with the Axis powers (Lauren 2003, 136–146 and 154–165).

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In particular, Latin American countries were early supporters of the development of international

human rights law, as well as former British colonies such as Australia and New Zealand