Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights

Susan Eileen Waltz

Human Rights Quarterly, Volume 23, Number 1, February 2001, pp. 44-72 (Article)

Published by Johns Hopkins University Press DOI:

For additional information about this article

Access provided by University of Washington @ Seattle (17 Jan 2018 19:35 GMT)

https://doi.org/10.1353/hrq.2001.0012

https://muse.jhu.edu/article/13764

HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 23 (2001) 44–72 © 2001 by The Johns Hopkins University Press

Universalizing Human Rights: The Role of Small States in the Construction of the Universal Declaration of Human Rights

Susan Waltz*

I. INTRODUCTION

In the fifty years that have passed since the United Nations General Assembly approved the Universal Declaration of Human Rights (UDHR),1

literally hundreds of books on the subject of human rights have come to fill the shelves of major university libraries in the United States and around the world. Human rights has claimed the attention of scholars in several disciplines, and the notion is alternatively approached as a philosophical idea, a legal concept, or a political project. Human rights readily finds a home in Western political philosophy, where theories of natural rights and social contract are well-anchored and help elaborate the modern concept of human rights. This concept has also been discussed in comparative philosophical frameworks.2 Human rights as a legal concept is part of the bedrock of contemporary international law, and neither legal scholarship

* Susan Waltz is Professor of Public Policy at the Gerald School of Public Policy at the University of Michigan. From 1993–1999, she was a member of the International Executive Committee of Amnesty International, and from 1996–1998, she was chairperson of that governing board. She is author of Human Rights and Reform: Changing the Face of North African Politics (University of California Press, 1995). 1. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III),

U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM. J. INT’L L. 127 (Supp. 1949) [hereinafter UDHR].

2. JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (1989); JOHAN GALTUNG, HUMAN

RIGHTS IN A ANOTHER KEY (1994); ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND

POLITICS (1995); HUMAN RIGHTS IN CROSS-CULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS

(Abdullahi Ahmed An-Na’im ed., 1991); Michael Freeman, The Philosophical Founda- tions of Human Rights, 16 HUM. RTS. Q. 491 (1994).

2001 Universalizing Human Rights 45

nor discussion of the international implementation mechanisms (and their flaws) is wanting. The study of international human rights as a political project, however, has been relatively neglected. A political project refers to concerted efforts to build a public and worldwide consensus around the idea of human rights, including political strategies, diplomatic initiatives, agreement of explicit principles, and conclusion of an international accord.3

The field of international relations is the most natural disciplinary home for such inquiry, but until the 1970s, the paradigmatic attachment to the notion of sovereignty excluded virtually all treatment of human rights. Scholars in international relations tended to view concern with human rights as a matter of domestic governance, and thus out of their domain. It was only with discussions of transnationalism, international regimes, and the limits to political realism that human rights began its slow creep into that literature.4

Political analyses of international human rights began to appear in the late 1980s, and today they are complemented by a growing body of writings about the construction of international human rights as a political project.5

As this article will demonstrate, recent scholarship on the political origins of the Universal Declaration has proved enlightening. Efforts to account for both inspiration and political motivation have taken several scholars deep into archives, and in the process several forgotten or obscured facts have been unearthed. As the erstwhile unproblematic history of the UDHR has been reconstructed, it has become more complex, and more nuanced. One of the subtle but powerful truths to emerge is that no single, straightforward story about the origins, shape, and content of the Interna- tional Bill of Rights can be told.6

3. I have borrowed this term from Tony Evans, whose usage is similar. See TONY EVANS, US HEGEMONY AND THE PROJECT OF UNIVERSAL HUMAN RIGHTS (1996).

4. The evolution of this literature can be traced over several decades through publications in journals such as International Organization, World Politics, International Studies Quarterly, and Millenium.

5. See DONNELLY, supra note 2; R.J. VINCENT, HUMAN RIGHTS AND INTERNATIONAL RELATIONS (1986); DAVID P. FORSYTHE, THE INTERNATIONALIZATION OF HUMAN RIGHTS (1991) [hereinafter FORSYTHE, INTERNATIONALIZATION]; HENRY SHUE, BASIC RIGHTS: SUBSISTENCE, AFFLUENCE, AND U.S. FOREIGN POLICY

TOWARD LATIN AMERICA (1981); DAVID P. FORSYTHE, HUMAN RIGHTS AND U.S. FOREIGN POLICY: CONGRESS RECONSIDERED (1988).

6. The Universal Declaration of Human Rights together with the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic, and Cultural Rights comprise the “International Bill of Rights.” For many months between 1946 and 1948 there was active debate about whether or not to have a single document and the exact form any document(s) should take. After the Declaration was acclaimed in 1948, debate continued as to whether there should one or two main treaties. Largely due to pressures from the United States—whose own internal political landscape had changed dramatically from 1945 to 1952—the covenants were split. See EVANS, supra note 3, at 89–92.

In this article, the term “international bill of rights” has two meanings: (1) when capitalized, this term refers to the three documents, namely the UDHR, ICCPR, and

Vol. 2346 HUMAN RIGHTS QUARTERLY

This article focuses on the little known story of the contribution of small states. To orient readers, it begins with a review of the familiar accounts, the scholarship at our disposal, and the historical treatment that gave rise to the UDHR. Four distinct roles of small states are then discussed. In the most minimal role, small state delegations bore witness to the proceedings that produced the text of the UDHR; their representatives also participated actively in the debates. Delegates from certain small powers accepted vital leadership roles; on some issues they fought hard to see their concerns reflected in the final text. After this systematic review of the contributions of small states, the article concludes with reflections on the complex history of the UDHR, some cautions about overemphasizing the role of hegemonic states, and speculation as to how the document we have inherited might have been different without the participation of small states.

II. FAMILIAR ACCOUNTS AND LESS FAMILIAR SCHOLARSHIP: A REVIEW

The historical account of the UDHR best known in the United States begins with the Roosevelts.7 In his 1941 State of the Union address to Congress, Franklin Delano Roosevelt delivered the well-known Four Freedoms speech,8

providing a rhetorical touchstone for many who subsequently took up the cause. So influential was the notion of “fundamental freedoms” that the 1941 speech is considered by many as the seminal contribution. However important was Franklin Roosevelt’s contribution, though, his widow’s role was more celebrated: from January 1947 to June 1948 she chaired the UN Human Rights Commission that produced the draft Declaration.9 In her own time, Eleanor Roosevelt was famous—or infamous—as an advocate of social justice. In the years after her death, however, a number of film documentaries have popularized an understanding of her leadership role in promoting international human rights.10

ICESCR; and (2) when not capitalized, it refers to the entire political project before it was known that there would be three, not one, document.

7. See M. Glen Johnson, The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights, 9 HUM. RTS. Q. 19 (1987).

8. Roosevelt’s speech proclaimed freedom of speech, freedom of religion, freedom from want, and freedom from fear. See LOUIS HENKIN ET AL., HUMAN RIGHTS 1108 (1999).

9. For additional insights into Eleanor Roosevelt’s role, see EVANS, supra note 3; Johnson, supra note 7; JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVENTURE

(1984); A. DAVID GUREWITSCH, ELEANOR ROOSEVELT: HER DAY (1973). As the Chair of the Commission of Human Rights, Eleanor Roosevelt was invited to introduce the draft UDHR to the Third Committee for formal debate. See U.N. GAOR, 3d Sess., 3d Comm., Pt. 1, at 32–33 (1948) [hereinafter Third Committee Records].

10. See, e.g., THE ELEANOR ROOSEVELT STORY (Richard Kaplan ed., 1966); ELEANOR ROOSEVELT: A RESTLESS SPIRIT (A&E Home Video 1994); THE AMERICAN EXPERIENCE: ELEANOR ROOSEVELT (PBS 1999).

2001 Universalizing Human Rights 47

From this side of the Atlantic there are few challenges to a view that the Roosevelts shaped and molded the human rights story, and indeed, many consider the human rights project to be no more and no less than an American project.11 Alternative views persist, however, and there are variations to challenge even this most basic story. The fact that the UDHR was finalized under the shadow of the Eiffel Tower allows France to call itself the birthplace of universal human rights. The version of the story commonly told in France puts renowned legal scholar René Cassin at center stage. Cassin had great influence over the final draft text and was awarded the Nobel Peace Prize for his role in fostering the UDHR. As part of their own political legacy, the French recall that the Rights of Man manifesto arose from the French Revolution. When the freshly created United Nations Economic, Social and Cultural Organization (UNESCO) decided in 1946 to conduct an international survey on the multicultural basis of the philosophi- cal idea of human rights, French philosopher Jacques Maritain was among those chosen to participate in the study. That UNESCO investigation had no appreciable impact on the political project of human rights (which was carried out by the Commission on Human Rights, under the aegis of the Economic and Social Council (ECOSOC)), but Maritain’s active participa- tion nevertheless buttresses the French claim to sponsorship of the human rights project.12

In recent years, scholars have had opportunity to peruse many contem- poraneous documents and retrospective accounts. Eleanor Roosevelt’s rather circumspect views were published concurrently with her own participation in the process, as installments in the news column “Her Day.”13 Her autobiography contains additional notes, as do some of her private papers and US State Department documents.14 John Humphrey, the United Nation’s first Director of the Division on Human Rights, published his own memoir in 1984, presenting the account of another player central to the political process of constructing the UDHR.15 More recently, in 1996, British political scientist Tony Evans developed an account of the interna- tional human rights project that privileges hegemonic interests. Grounding his carefully researched and well-documented study in the dominant theory of international relations, he argues that the UDHR was an American project that rose, and fell, with the tide of US interest.16 Studies of US domestic

11. See EVANS, supra note 3. 12. See JACQUES MARITAIN, On the Philosophy of Human Rights, in HUMAN RIGHTS: COMMENTS AND

INTERPRETATION 72 (UNESCO ed., 1949). See generally HUMAN RIGHTS: COMMENTS AND

INTERPRETATION (UNESCO ed., 1949). 13. See GUREWITSCH, supra note 9. 14. See ELEANOR ROOSEVELT, THE AUTOBIOGRAPHY OF ELEANOR ROOSEVELT (1992). For an account

based in part on a review of Eleanor Roosevelt’s private papers, see EVANS, supra note 3. 15. See HUMPHREY, supra note 9. 16. See EVANS, supra note 3.

Vol. 2348 HUMAN RIGHTS QUARTERLY

politics during the Truman-Eisenhower transition also help explain the waning of US interests in a project initially championed by a US president.17

An alternative perspective on political dynamics is offered by William Korey, whose richly anecdotal version of the story emphasizes the arguably crucial role of nongovernmental organizations.18 Representatives of some forty-two US-based and international nongovernmental organizations were invited to the April 1945 San Francisco conference that created the United Nations. Although formally they served in an advisory capacity to the US delegation, they contributed to debates and influenced delegates from their position offstage, in the corridors and private meeting rooms. It was thanks to their lobbying efforts that a Human Rights Commission was created, and of course it was that body which was charged to draft the Universal Declaration.19 Jan Burgers’ investigation of political developments during the interwar period also emphasizes the role of non-state actors in promoting the human rights idea. Archival research led Burgers to uncover evidence that a groundswell of support for creating international human rights standards was growing among civic groups in Europe and the United States well before the worst Nazi atrocities were known.20 His work has been expanded by Paul Lauren, who traces the international human rights movement back to the late nineteenth century.21

Finally, there has also been scholarly scrutiny of the drafting process itself. A group of Scandinavian scholars published an article-by-article examination of the origins of the Universal Declaration in 1992, and their work supplements accounts published several decades ago.22 More re- cently, Johannes Morsink has opened UN archives to consider both the process and the politics of the initial drafting phases. His book The Universal Declaration: Origins, Drafting, and Intent is by far the most comprehensive and authoritative work on the authorship of the Universal Declaration.23

17. See RICHARD O. DAVIES, DEFENDER OF THE OLD GUARD: JOHN BRICKER AND AMERICAN POLITICS 153– 83 (1993); DUANE TANANBAUM, THE BRICKER AMENDMENT CONTROVERSY: A TEST OF EISENHOWER’S POLITICAL LEADERSHIP (1988).

18. See WILLIAM KOREY, NGOS AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: “A CURIOUS

GRAPEVINE” (1998). 19. See id. at 36. 20. See Jan Herman Burgers, The Road to San Francisco: The Revival of the Human Rights

Idea in the Twentieth Century, 14 HUM. RTS. Q. 447, 465 (1992). 21. See PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 72–138

(1998). 22. See THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMENTARY (Asbjørn Eide et al. eds.,

1992). See also NEHEMIAH ROBINSON, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ITS ORIGINS, SIGNIFICANCE, APPLICATION, AND INTERPRETATION (1958); ALBERT VERDOODT, NAISSANCE ET SIGNIFICATION: DÉCLARATION UNIVERSELLE DES DROITS DE L’HOMME (1964).

23. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING, AND INTENT

(1999).

2001 Universalizing Human Rights 49

III. SMALL STATES AND THE UDHR

Despite the rich historical resources now at our disposal, at least one version of the story remains untold as an account unto itself. Some 250 delegates and advisors from fifty-six countries were accredited to participate in the construction of the Universal Declaration, but most scholarly attention has been directed to the role of a few delegations. The story of the majority remains enshadowed. It is that story, and most particularly the role and contribution of states that would come to be known as the Third World, that is most intriguing. Parts of their story, of course, have appeared in other versions, often as interesting sidelines or incidental elements. This article is intended to present a systematic review that allows readers to understand the contributions and appreciate the commitment of participants from these small states. Similarly, the author hopes that this presentation will inspire researchers from countries that played significant roles in the historical process to extend this investigation to the debates and positions developed within their countries’ delegations.

In reassembling this account of the UDHR’s birth, the author makes no claim to present the main version of the story, much less the “true” version of events that unfolded from 1946 through the early 1950s. To the best of the author’s knowledge, the material presented below is truthful and represents one accurate version of events that transpired, and this version is an important one. Novelists, filmmakers, and literary critics have helped us appreciate the value of considering a story from alternative perspectives, both to capture complexity and to query a given account that might otherwise go unexamined. At very least, the story of Third World contribu- tions and contributors enriches our understanding of the range of political dynamics and concerns that were brought to the table as the International Bill of Rights was being negotiated. It also sheds light on the knotty question of the universality of human rights.

Unfortunately, a coherent story that accents the role and contributions of small states is not easily told. The narrative assembled is complex and interwoven. Elements that in more familiar versions of the story commonly figure in the foreground must recede here, and more obscure events, prominent in an account that privileges the smaller states, require additional explanation. Except to those intimately familiar with historical events of the post-war era, there is risk that the sheer detail of the story, organized as a narrative, would overwhelm and bore even the most tolerant. The account that follows is thus organized to preserve the goodwill of readers. Rather than recount a chronologically ordered narrative, the author has identified four principal roles that Third World participants played. In the pages that follow, the author offers anecdotes to illustrate and substantiate the claim.

To engage directly with the material that follows, some familiarity with

Vol. 2350 HUMAN RIGHTS QUARTERLY

the most basic sequence of events in the UDHR story is required as pre- sented in Figure 1. The UDHR went through several distinct phases, and the anecdotes that will be recounted come from various phases. It will also be useful to consider that the argument presented is not that small state participants dominated the debate over the UDHR. The argument here is more modest, and the threshold of proof accordingly lower. The claim made is a simple but important one: a wide range of participants outside the Western bloc made significant contributions to the construction of the most elemental international standard of human rights, and they were aware at the time of the significance of their words and deeds.

Well before the opening of the San Francisco conference that was to create a United Nations, the idea of establishing an international human rights standard was in the air. The concept of a worldwide declaration of human rights can be traced back at least as far as the 1920s, soon after the nongovernmental Fédération Internationale des Droits de l’Homme (FIDH)

FIGURE 1

A Brief and Basic History of the UDHR Project

Phase I. Germination of a political idea 1945. United Nations created, in San Francisco. Human Rights is included in the UN Charter, and ECOSOC asked to appoint a Human Rights Commission charged to produce an appropriate international framework.

Phase II. Drafting the UDHR 1946–48. The Human Rights Commission, in various incarnations, worked on drafting the UDHR for two years.

Main questions addressed in the drafting phase included whether there would be a single document, and what form it should take—a statement of principle only, for example, or a fully developed and legally-binding treaty. The final outcome was a Declaration of Human Rights, followed by two legally binding international human rights covenants.

Phase III. Formal Debate of the UDHR Fall 1948. Completed draft referred to the UN General Assembly’s Third Committee, for formal debate by accredited delegations.

December 1948. Modified draft UDHR referred to a plenary session of the UN General Assembly. Passed without dissenting vote (8 abstentions).

Phase IV. Creating the Human Rights Covenants 1966. Two formal covenants approved and opened for ratification in the early 1960’s. The International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights entered force in the mid-1970’s. Together with the Declaration, they comprise the International Bill of Rights and are today the bedrock of international human rights law.

2001 Universalizing Human Rights 51

was created in Paris.24 Later, in 1939, aging science fiction writer H.G. Wells published an impassioned plea for a mid-century declaration that set humanitarian standards for future generations.25 His own version of such a declaration was disseminated in many languages.26 The 1941 Atlantic Charter signed by Roosevelt and Churchill, and subsequently endorsed by forty-four additional countries, referred to human rights and fundamental freedoms.27 It galvanized popular support and raised many hopes around the world for social justice in the areas of race relations, women’s rights, and colonial rule. US Undersecretary of State Sumner Welles was a strong advocate of human rights, and under his guidance, a working group at the State Department made some initial efforts at drafting their own interna- tional bill of rights.28

It seemed natural that the idea of a human rights declaration would find its way into proposals for a new worldwide organization of United Nations. It did, but barely. Papers prepared by the United States in preparation for meetings at Dumbarton Oaks referenced human rights, but support was at best lukewarm. Though it will seem ironic today, of the four Sponsoring Powers, it was China that was most supportive of the idea.29 The Chinese argued that a central purpose of the United Nations should be to enforce justice for the world. To that end they were prepared “‘to cede as much . . . sovereign power as may be required.’”30 Neither Churchill nor Stalin, however, recognized China’s status as a great power, and China’s views did not carry substantial weight.31 For their part, both the USSR and the United Kingdom resisted the idea of human rights.32 So did US Secretary of State Cordell Hull, who in the meantime had forced the resignation of Sumner

24. See FDIH Homepage (visited 25 Oct. 2000), <http://www.fidh.org/home.htm>. 25. See H.G. Wells, Letter, War Aims: The Rights of Man, TIMES (London), 25 Oct. 1939;

H.G. WELLS, THE RIGHTS OF MAN OR WHAT ARE WE FIGHTING FOR? (1940) (for the original draft of his Declaration of Rights and additional commentary on human rights).

26. For a discussion of Wells’ work, see Burgers, supra note 20, at 465–68 and LAUREN, supra note 21, at 152–53. Lauren notes that Wells’ declaration was translated into Chinese, Japanese, Arabic, Urdu, Hindi, Bengali, Gujerati, Hausa, Swahili, Yoruba, Zulu, and Esperanto. Id. Wells also circulated his declaration among European and American intellectuals. For the broad range of Well’s political concerns during this period, see MICHAEL FOOT, THE HISTORY OF MR. WELLS 253–307 (1995).

27. The document commenly known as the Atlantic Charter was initially released as the Declaration of Principles Issued by the President of the United States and the Prime Minister of the United Kingdom on 14 August 1941.

28. See LAUREN, supra note 21, at 161–62. 29. See id. at 166. The four sponsoring powers were the United States, Great Britain, the

USSR, and China. These were the four states that met at Dumbarton Oaks, producing the proposal for the United Nations, which was then discussed in San Francisco.

30. Id. 31. See id. at 148–49, 166–71; archival sources are referenced at 331–32. 32. See Farrokh Jhabvala, The Drafting of the Human Rights Provisions of the UN Charter,

64 NETH. INT’L L. REV. 1, 3 (1997).

Vol. 2352 HUMAN RIGHTS QUARTERLY

Welles. Hull regarded human rights chiefly as a useful wartime propaganda tool, otherwise antithetical to the interests of a sovereign nation, and his views prevailed.33 The Dumbarton Oaks proposals ultimately contained only one small reference to human rights.34

As the curtain rises on our story, there was no reason at all to expect that the nascent United Nations would focus rhetorical attention on human rights. There was nothing inevitable about the Universal Declaration, much less the human rights treaties that followed. Certainly, the Great Powers did not advance the idea. Once it was loose, their concern was to manage the process and ensure at least that the results did not run counter to their interests. They quickly seized leadership roles in the crafting of the human rights project, but the smaller powers also participated actively. In many regards the story of the UDHR belongs to them. Some of the ideas advanced by smaller powers were incorporated into the final product. Some were not. Sometimes they supported the larger powers; sometimes they did not. Sometimes they were divided among themselves. In several instances, their concerted efforts prevented the larger powers from having their way.

From a review of relatively accessible documents and secondary texts, four distinct roles played by small states can be identified. First, the smaller powers were witnesses and accessories to the creation of the International Bill of Rights. They were included in a process that extended over a period of eighteen months. Second, these nations were active participants; third, they provided leadership from their ranks. Fourth, Third World delegates were also ardent advocates and partisans, advancing agendas of their own. There is little doubt that without their efforts that the International Bill of Rights would have looked rather different, if indeed it had finally been agreed at all. Each of these four roles is elaborated and illustrated in turn.

A. The Small Powers as Witness

Contrary to what is often imagined, the negotiations over the UDHR were a very public affair. There were no doubt important conversations that took place off the record, but for a variety of reasons, the debates were protracted and to a significant degree open to all. Official records were kept during the debates of both the Commission and the Third Committee proceedings (Phases II and III, Figure I). Whether or not they actively participated in the debate, every delegate who attended the Third Committee debates of autumn 1948 at minimum heard, and witnessed, discussion of the meaning

33. See LAUREN, supra note 21, at 165. 34. See Jhabvala, supra note 32.

2001 Universalizing Human Rights 53

of human rights. Sometimes that discussion strayed into the abstractly philosophical. More often, comments were pedantic; the official record is replete with suggestions for amending the text.35 As the following pages will show, there is ample evidence, though, that delegates also wrestled in a basic way with the substance of human rights problems. They understood that their debate was helping to define rights as well as create standards. Regular reference to poignant and concrete human rights problems of the day kept the purpose of the debate in clear focus.

Not surprisingly, Nazi atrocities and fascist brutalities were frequently evoked. Delegates referred to Nazi practices during the drafting and discussion of more than half of the Declaration’s thirty articles. Sometimes anecdotal references to Nazi practices were adduced to buoy political arguments and sway opinions. In other places, profound reactions to Nazi practices in the concentration camps appear to have shaped the very essence of the moral code being drafted. Articles 3, 4, and 5 (establishing the general right to life, liberty and security of person and prohibiting practices of slavery and torture) in particular were deeply influenced by the Holocaust experience, and not simply by Enlightenment thought enshrined in many existing national constitutions.36

The Nazi holocaust was frequently evoked, but it was not by any means the only point of reference for participants in the Third Committee debates. During these debates, Soviet bloc delegates regularly pointed out the human rights shortcomings of their Western counterparts. They noted the Swiss denial of the political franchise to women,37 and the British Empire’s denial of the franchise to the vast majority of its subjects worldwide.38 They noted the US Congress’ ignominious failure to approve a proposed federal law against lynching.39 Delegates were witness to ma