Throughout the book, Morsink explains how this 1948 iconic text can help us in the twenty-first century. He shows us the high moral ground we need to fight evils perpetuated during and after World War II that now present themselves in new garb and does so in a clear and concise manner.
Throughout the book, Morsink explains how this 1948 iconic text can help us in the twenty-first century. He shows us the high moral ground we need to fight evils perpetuated during and after World War II that now present themselves in new garb and does so in a clear and concise manner.
Article by Article: The Universal Declaration of Human Rights for a New Generation
208
Article by Article: The Universal Declaration of Human Rights for a New Generation
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Overview
Throughout the book, Morsink explains how this 1948 iconic text can help us in the twenty-first century. He shows us the high moral ground we need to fight evils perpetuated during and after World War II that now present themselves in new garb and does so in a clear and concise manner.
Product Details
| ISBN-13: | 9780812225037 |
|---|---|
| Publisher: | University of Pennsylvania Press, Inc. |
| Publication date: | 12/10/2021 |
| Series: | Pennsylvania Studies in Human Rights |
| Pages: | 208 |
| Sales rank: | 706,207 |
| Product dimensions: | 6.00(w) x 9.00(h) x (d) |
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Read an Excerpt
Preamble
The word "preamble" has two Old Latin parts to it, prae, meaning "before," and the verb ambulare, meaning "to go." Together they make the Latin verb praeambulare, meaning "going before." That gives us the standard use of a preamble as an introduction to something that follows. In this case what follows (after the operative paragraph) are the thirty articles of the Universal Declaration of Human Rights. As are most introductions, this one was written after most of the rest of the declaration was close to being finished. The seven paragraphs of this preamble are called "recitals." They tell us why the Third General Assembly of the United Nations decided to declare this list of universal human rights on December 10, 1948, in Paris, France. Here I cite and comment on the seven reasons the drafters gave for making this declaration.
These recitals give the reader more of the historical background I mentioned in the Preface. They mostly speak for themselves. Still, if we are going to use this iconic text as a weapon against different kinds of antidemocratic authoritarianism, then I should spell out how I interpret the first three of these recitals, for they give us the moral underpinnings for that fight.
In my comment on the first recital, I explain why the drafters thought that human rights are part of people's moral DNA and why they wanted to keep the declaration a secular text accessible to religious and nonreligious people alike. In my comments on the second recital, I explain that we get our knowledge of human rights through our conscience and also that the UD drafters were aware of US president Franklin Roosevelt's Four Freedoms speech. In those on the third recital, I explain that while historically the rights of rebellion and petition form a pair, the drafters honored the latter and dropped the former from their slate of rights. The last four recitals are important for they link the declaration to the United Nations Charter and give the document its international legal grounding.
1) Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
This recital was the brainchild of the Committee on the Preamble that was appointed rather late in the drafting process. It consisted of the representatives of the United States, China, France, and Lebanon, all of which were (in various degrees) supporters of the idea that human rights are inherent in all members of the human family and not just the result of extraneous factors like government actions or judicial procedures, whether domestic or international. This view holds that people have moral rights that constrain the behavior of others regardless of whether those moral rights are matched (as they should be) in the realm of legality. The Third Committee, which had representatives on it from all fifty-six UN Member States, adopted this recital unanimously. Two things immediately come to mind upon reading the foregoing text.
First, the terminology of "inherent dignity and of the equal and inalienable rights of all members of the human family" leads many to think of the eighteenth-century Enlightenment. The 1776 Virginia declaration of rights says that "all men . . . have certain inherent rights," and the US Declaration of Independence asserts that all men are "endowed by their creator with certain unalienable rights." US founding documents are replete with these kinds of references, which not infrequently have served as a model the world over.
This idea of inherence was not just the pet project of some drafters around the North Atlantic. For instance, Peng-Chun Chang from China defended Article 18 (on freedom of thought and religion) as "one of the most important principles in the Declaration" because "from the eighteenth century, when the idea of human rights was born in Western Europe, freedom of thought had figured among the essential human freedoms and had covered the idea of religious freedom" (A/C.3/SR.127/397). In the discussion of UD 15 (on nationality), Eduardo Anze Matienzo from Bolivia insisted that "nationality was an unalienable human right," adding that in law it "might be regarded as transitory; but as a right it was inherent" (A/C.3/SR.123/351). At one point the Egyptian delegation submitted an amendment that described all the UD rights as "inherent attributes" of the human person (A/C.3/264). Uruguay told the General Assembly that "the inherent rights and freedoms of the human being" were enshrined in the UD (A/PV.181/887).
At one point communist Yugoslavia lobbied for the practice of "establishing, as rights inherent in the human person, the principle of freedom of trade union association and any other safeguards such as minimum wages, equal pay for equal work for men and women, abolition of racial discrimination in economic and social activities, full employment, effective struggle against unemployment especially in a period of crisis and compulsory social insurance, as may provide the basis for a minimum of well-being within the reach of all the workers in the world" (A/C.3/187, as found in W. A. Schabas, "The Universal Declaration of Human Rights," in The Travaux Preparatoires, vol.1 [Cambridge: Cambridge UniversityPress, 2013], 967-68). Today, in the midst of a worldwide pandemic that hits lower-income workers most and with marches against systemic racism all over the United States and its former colonialist allies, this Yugoslav list of "rights inherent in the human person" does not sound nearly as far flung as it struck the members of the Economic and Social Council, which passed on it in the late 1940s but could not prevent it from influencing the work-related rights we have in the declaration. Some seventy-five years after the UD adoption, the belief that a wide range of human rights are part of people's moral DNA has come to be shared around the globe.
The second thought I need to share on this first recital is that it lets inherence and inalienability fend for themselves without grounding these ideas in any way in religion. This lack of reference to the sacred was not the result of a lack of trying. In the Third Committee the Dutch delegation proposed to insert the part I have italicized into the text: "Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, based on man's divine origin and immortal destiny, is the foundation of freedom, justice and peace in the world" (A/C.3/219).
The Dutch argued that their "amendment affirmed the relation between the Creator and man, stated the latter's origin and referred to his destiny" (A/C.3/SR.164/755). L. J. C. Beaufort made the observation that "for those who were agnostics or atheists, the Netherlands amendment was merely devoid of any meaning, but it could not harm them or offend their conscience. . . . On the other hand, if the amendment were adopted, it would give satisfaction to the majority of the world's population, which, generally speaking, still believed in the existence of a Supreme Being" (ibid.). Beaufort said his proposal was also "required for practical reasons, because the rights of man had to be protected in countries where the omnipotence of the State had precedence over the rights of individuals" (ibid.).
The communist delegates rightly felt themselves addressed and responded in force. In an overstatement, Alexandre Bogomolov of the USSR reminded Beaufort that "the dispute on the divine origin of man had been fought out in Paris as long ago as 1789 when the Declaration of the Rights of Man and of Citizen had included no reference to the divine origin" (A/C.3/SR.165/758-59). He overlooked the fact that the French Assembly noted in its preamble that it proclaimed this otherwise secular bill "in the presence of the Supreme Being." Fryderyka Kalinowska of Poland pointed out that the Dutch amendment "failed to take into account the fact that the Declaration was a United Nations' document which could not properly deal with metaphysical questions" (ibid., 762). Opponents of the Dutch view got help from some theistically inclined friends of the Dutch. Adrian Carton de Wiart from Belgium admitted that he was "personally inclined to favour [the Dutch proposal] because it provided the idea of equality of man with perhaps the only possible ultimate argument and would thus strengthen the Declaration" (ibid., 760). But he did not think that the committee should try to resolve this kind of question by a vote. Hernan Santa Cruz of Chile explained that his country, "where the bulk of the nation was sincerely Catholic, had no mention of providence in its constitution, out of respect for the conviction of an important minority. He wanted to carry this tolerance for the minority point of view over to the international arena," which is why Chile "would not support the Dutch amendment" (A/C.3/SR.166/774). France, Australia, and the United Kingdom also did not go along with the idea of a religiously grounded UN declaration.
Beaufort did not share the view that controversial questions could not be settled by a vote. Linking his proposal to their common fight against authoritarianism, he asked his colleagues, "Was agreement really impossible between those who believed that human rights were inalienable and those who affirmed that man was only a means and that the State was an end in itself?" He continued, "Bitter experience in the recent past had shown the danger of allowing the monstrous materialistic conception of man as a mere tool in the service of the State" (A/C.3/SR.166/776). He withdrew his amendment when he saw that he did not have the votes.
2) Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.
The use of the word "conscience" in this recital as well as in Article 1 tells us how the drafters thought people come to a knowledge of human rights. Generalizing their own feelings over the rest of humanity, they supposed that every human being would feel the same moral outrage when faced with or told about "barbarous acts" committed by Nazis, fascists, and other perpetrators of evil.
When this recital arrived at the Third Committee from the commission, it read as follows: "Whereas disregard and contempt for human rights resulted, before and during the Second World War, in barbarous acts which outraged the conscience of mankind and made it apparent that the fundamental freedoms were one of the supreme issues of the conflict." As you can see, the specific reference to World War II was deleted and US president Roosevelt's four freedoms were added.
Two war amendments called for opposite changes. Australia proposed that the reference to World War II be deleted, suggesting the opening terminology that we now have, which makes no reference to war but does mention "barbarous acts that have outraged the conscience of mankind," a barely hidden reference to Nazi practices (A/C.3/257). Going in the opposite direction, France proposed this text: "Whereas ignorance and contempt for human rights are one of the essential causes of human suffering; whereas particularly before and during the Second World War, Nazism and racialism engendered countless acts of barbarism which outraged the conscience of mankind" (A/C.3/339). Both nations sought to make their case. Australia wanted to delete the reference to World War II because it was too specific. The declaration, it felt, should "contain immutable principles" and not "give the impression that it was prompted by the particular ideas of one epoch" (A/C.3/SR.164/756). France responded that "when dealing with the body of the declaration, [it] had always advocated the removal of any controversial wording; but in the preamble it was absolutely essential to set down a protest against the horrors which had taken place before and during the Second World War out of which the United Nations had risen. Such a protest was the essential starting point for a declaration of human rights" (A/C.3/SR.165/760).
Belgium sided with Australia, arguing that "the deletion of the mention of the Second World War was logical because quite as many barbarous acts were committed in the First World War, so that there seemed to be no reason to speak of the former without mentioning the latter. . . . It might also be asked why allusions to fascism and totalitarianism had been omitted" from the French amendment (A/C.3/SR165/761). Eleanor Roosevelt of the United States said that while "she personally preferred the Australian draft . . . , she realized that a number of delegations strongly favoured express mention of the Second World War and her delegation was prepared to support the original text," which did have such a reference in it (ibid., 763).
Benigno Aquino of the Philippines agreed with the French position "that it was necessary to include a reference to the Second World War. Mankind had to be reminded of the fact that a few men, through the use of force, had attempted to eliminate the fundamental freedoms" (A/C.3/SR.165/766). He further proposed that "fascism" be added to the French proposal because the "doctrine was still as repugnant as it had ever been and was the basic cause of militarism which had attempted to destroy the whole of Europe and parts of the Orient. In certain parts of the world, fascists were still on the alert, awaiting an opportunity to seize control" (ibid.). Jorge Carrera Andrade of Ecuador wondered why the French amendment, "which condemned Nazism and racialism, was silent on other equally criminal systems, such as Italian fascism and Japanese militarism. As any list of such systems was incomplete, it would be preferable to abandon the idea of including one in the preamble" (ibid., 776).
I noted in the Preface that the declaration is the result of lots of cooperation. We see that happened here when both France and Australia withdrew their own amendments and proposed this joint one: "Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind," and "whereas the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from want and fear has been proclaimed as the highest aspiration of the common people" (A/C.3/383). Just before the final vote, the second "whereas" was replaced with the comma we have in our text. Like the first recital, this one was also adopted unanimously with twenty-seven votes for, none against, and eight abstentions (A/C.3/SR.166/787).
France and Australia patched this text together from the UN Charter Preamble and from the American Federation of Labor submission to the Preamble Committee that had cited President Roosevelt's four freedoms (E/CN.4/129). On January 6, 1941, Roosevelt gave a speech referring to the four freedoms of speech and belief and from fear and want that are mentioned in the American Federation of Labor submission. These freedoms had gained great notoriety in both of the Americas. Roosevelt had been an ardent founder of the United Nations. He even proposed to the US Congress legislation that translated these freedoms into "a second bill of rights." All four of these freedoms find their echo throughout the UD, including workers' human rights sponsored by Latin American nations in the second half of the declaration.
In the Third Committee, the word "disregard" that we now have replaced René Cassin's earlier term "ignorance" and was carried over to the joint amendment. Alexei Pavlov of the USSR said that keeping "the word 'ignorance' would give the impression that the acts of the Germans and the Japanese were being excused because they did not know they were violating human rights" (A/C.3/SR.175/5). Chang of China agreed, explaining that it "was true that the Germans and Japanese were to blame for their contempt for human rights, but it could not be said that they had been ignorant of those rights" (ibid.).
3) Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Historically the rights to petition and rebellion often go together in that where a government does not respond to petitions of its people, they are thought to have a right to rebel. The authors of the 1776 American Declaration of Independence complained that "in every stage of these Oppressions We Have Petitioned for Redress in the humblest terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be ruler of a free People." In Article 15 of their 1789 declaration, the French people also asserted that "every community has a right to demand of all its agents an account of their conduct." Thomas Paine, who influenced both these texts, put the right to petition this way: "If a law be bad it is one thing to oppose the practice of it, but it is quite a different thing to expose its errors, to reason on its defects, and to show cause how it should be repealed, or why another ought to be substituted in its place" (Rights of Man [New York: Penguin, 1984], 155).
This third recital gives us only the right to rebellion, leaving out the right to petition. That one was much discussed but not included because the drafters could not agree on whether citizens of nations should be able to petition not just their own governments but also the United Nations for redress. The majority of drafters felt that the latter kind of international right to petition would encroach too much on a nation's autonomy or sovereignty.
Cuba and Chile at first wanted the right to rebellion more explicitly stated and submitted a text for this recital that told "individuals and peoples" that rebellion "would be their legitimate right as a last resort" (A.C.3/314/Rev.1/Add.1). "Mrs. Roosevelt (United States of America) criticized the dangerous character of the Cuban and Chilean proposals. In her opinion, the recognition in the declaration of human rights of the right to resist acts of tyranny and oppression would be tantamount to encouraging sedition, for such a provision could be interpreted as conferring a legal character on uprisings against a Government which was in no way tyrannical" (A/C.3/SR.164/749). The United Kingdom also felt this language "might be construed as an invitation to revolt, since it stressed the right to rebel" (A/C.3/SR.166/772). Chile responded that "there was nothing in the amendment in question to encourage rebellion against a really democratic regime based on universal suffrage and human rights" (ibid., 774). The Netherlands thought this amendment "was important and should be incorporated" (A/C.3/SR.165/768).
At the start of the 167th meeting, the chairperson explained that some amendments had been withdrawn, including the Cuban-Chilean one on the third recital. However, together with France, they had submitted this new, less explicit text on rebellion: "Whereas it is essential, if man is not to be compelled to fall back, as a last resort, on rebellion against tyranny and oppression, that human rights should be protected by a rule of law" (A/C.3/382/Rev.1). The idea here is that rebellion is a human right, but only as a last resort. Eleanor Roosevelt still objected because "it would be unwise to legalize the right to rebellion, lest the formula should be invoked by subversive groups wishing to attack or undermine genuine democratic Governments. Honest rebellion was permitted by the Declaration. Subversive action was quite a different matter . . ." (A/C.3/SR.165/763). Bolivia, Cuba, Chile, and Ecuador all spoke of the struggles their countries had had in "the conquest for freedom" (A/C.3/SR.166/773). Many more could say the same thing.
The question came down to how explicitly to state the right to rebellion. Just before the vote, Cuba made the point that "the words 'to fall back as a last resort' suggested that some sort of reluctant concession had been made, which was not true of the French text" that had used the word recours, which means "last resort" or "way out" (A/C.3/SR.167/885). Australia agreed that the "French text had a positive meaning which the English text did not have" (ibid.). This led the United States to propose that the phrase "to have recourse to rebellion, as a last resort," be used instead. The minutes then record that "it was so decided." It was also "agreed" that the United Kingdom's proposal to use "by the rule of law" instead of "by a rule of law" be adopted for this recital's text (ibid.). The vote of twenty-five in favor, one against, and eleven abstaining shows that by adopting the foregoing italicized text with these just mentioned changes, the majority preferred to state the right to rebellion somewhat modestly as a submerged right. Sweden was the only negative vote, and one wonders whether the abstaining nations (Pakistan, Peru, the Philippines, the United Kingdom, the United States, Venezuela, Belgium, Burma, Canada, China, and Denmark) did not think it was a real human right to begin with (ibid., 788). One reason could be that rebellion is often thought of not so much as a right of individuals but as of a collectivity or a whole people.
4) Whereas it is essential to promote the development of friendly relations between nations,
The next four recitals go back to and are based on specific clauses and articles in the United Nations Charter. We should keep in mind that the UN Charter is a legally binding convention that Member States sign upon joining and are legally bound to follow. These four recitals indicate that the drafters took these charter references to human rights seriously and saw the writing of the declaration as a way of following up on the pledges they made when signing the charter.
This reference in the fourth recital to the "development of friendly relations between nations" is taken from Article 1(2) of the charter, where the development of "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples" is given as one of the goals of the United Nations. It first occurred in a UK submission and was dropped but revived by the Soviet Union, which kept pushing for its use in the preamble (E/800). Twice rebuffed by the commission, it succeeded in the Third Committee, where, with the help of other communist nations, this "short and concise" recital was adopted in a vote of twenty-six for, eight against, and three abstaining. The negative vote might have been the result of Cold War tensions. It could also be that "the right to self-determination of peoples," which was part of the UN text from which this recital was lifted, was linked to the fight to liberate colonial peoples (for which see Article 2[b]). The negative votes came from the Netherlands, New Zealand, the United Kingdom, the United States, Venezuela, Canada, China, and Greece. Lebanon, the Philippines, and Afghanistan abstained.
5) Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person [and in the equal rights of men and women and] have determined to promote social progress and better standards of life in larger freedom,
This recital comes straight out of the first paragraph of the UN Charter, but the version that came from the Third Session of the commission did not include the phrase I have placed in brackets. This omission was corrected at the level of the Third Committee when the Dominican Republic suggested that the charter phrase "and of equality of rights between men and women" be added to this recital (A/C.3/217/Corr.1). New Zealand made a similar suggestion, arguing that "omission of a reference to the equal rights of men and women . . . might be wrongly interpreted (A/C.3/SR.165/758). Lakshmi Menon of India said she would "whole-heartedly support" the Dominican amendment. She believed "the omission in the preamble of a statement to the effect that men and women were equal in rights could very easily be construed as permitting discriminatory measures by nations which did not believe in the equality of the sexes" (ibid., 764).
The vigorous defense of this insertion by women UD drafters calls to mind the career of Justice Ruth Bader Ginsburg of the United States Supreme Court, who passed away as this book was sent to the publisher. Minerva Bernardino explained that the Dominican Republic was persistent in its amendment "because it was aware that in certain countries the term 'everyone' did not necessarily mean every individual, regardless of sex. Certain countries did in fact recognize certain rights for everyone, but experience had shown that women did not enjoy them, as, for instance, voting rights. She thought it was necessary to state that principle explicitly, in order to pay tribute to the part which women had played in the cultural development of the world and to the heroism they had shown during the war" (A/C.3/SR.166/771). After Bernardino finished, Eduardo Anze Matienzo, her colleague from Bolivia, paid her "tribute . . . for her admirable efforts in support of women's rights" (ibid., 773). Ann Newlands of New Zealand echoed what Menon of India had said, that the "principle of equal rights for men and women should be explicitly mentioned" (ibid., 779). The insertion of this clause regarding the equality of the sexes was done by roll-call vote of thirty-two for, two against, with three abstentions. The United States and China voted against, while the United Kingdom, Canada, and Ethiopia abstained.
6) Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
This sixth recital is also taken literally from the UN Charter, this time from Article 56, where we read that "all members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55." One of the purposes explicitly mentioned in Article 55 is the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion." These four items make up the standard way in which the charter talks about nondiscrimination in "human rights and fundamental freedoms," which is another standard phrase of the charter. In my comments on Article 2[a], I tell the story of how this short charter list of nondiscrimination items was expanded to the much longer list of "race, color, sex, language, religion, political or other opinion, national or social origin, birth or other status."
The New Zealand draft proposal for the preamble (C.3/257) that contained this recital did not include our first three recitals. In fact, it proposed that those three be pulled from the lineup because, as its representative, A. M. Newlands, said, "they did not contain anything essential to an international declaration of fundamental rights and freedoms" (A/C.3/SR.164/758). My reader already knows how helpful the first three recitals are in understanding why the declaration was proclaimed. Australia also objected to deleting these three recitals because doing so was carrying the "virtue of brevity too far." As a result, the New Zealand proposal to pull the first three recitals out of the lineup was withdrawn and we have what we have. This means that the only changes made in the Third Committee to the preamble were ones to the received text, not substitutions for it.
7) Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
This recital takes off from where the sixth recital stopped. An earlier draft under discussion in the Third Session of the commission stirred quite a philosophical controversy over the phrase I have put here in italics: "Whereas this [sixth recital] pledge can be fulfilled only through a common understanding of the nature of these rights and freedoms." The commission had borrowed this entire recital, including the italicized phrase, from the Lebanese and UK submissions for the preamble (E/CN.4/132/124). Since the Third Session of the commission sent this text on to the Third Committee and the General Assembly without the italicized phrase, I report on the deletion of this phrase.
This seventh recital takes away some of the philosophical depth that I argued the first recital gives to the idea of modern human rights, that they are inherent in and inalienable to the human person. What most drafters meant by "inherent" and "inalienable" was caught up in the commission's language of "a common understanding of the nature of these rights." Any drafter voting for this phraseology would presumably agree that it is the nature of human rights that they are inherent in and inalienable to the human person. But that is something no communist steeped in Marxist ideology could accept. For them and some others, human rights are human-made or society-created. They are not part of our moral DNA, as I suggested in commenting on the first two recitals. No vote was ever taken on this particular issue (the communists forgot to abstain on the first recital), but to me a close reading of the drafting stories I present in this book suggests that something like inherence and inalienability best explains the miracle of this UD adoption in the shadow of the Holocaust. I argue this case in detail in Johannes Morsink, The Universal Declaration of Human Rights and the Holocaust: An Endangered Connection (Washington, DC: Georgetown UniversityPress, 2019).
Pavlov from the Soviet Union noted that "to make the Declaration on Human Rights dependent on the application of a common conception of the nature of rights and freedoms would destroy its very purpose. The Commission's discussions had clearly shown the divergences which existed between the members in the fields of philosophy and ideology; that difference of ideas had not prevented fruitful co-operation, because even though there had been disagreement on the nature of these rights, the Commission has, nevertheless, come to a satisfactory agreement as to their practical application." As presented, he said, "the wording seemed to require unity of thought and ideas which was impossible to achieve" (E/CN.4/SR.77/7).
Chairperson Roosevelt responded that "the realization of the purposes of the Declaration depended above all on a common understanding of the essential human rights and freedoms. If a common view of the nature of these rights and freedoms could not immediately be attained, then identity of views nevertheless remained the supreme aim to be sought. There had been disagreement in the Commission," she admitted, "but the decision of the majority had prevailed in the choice of articles, and the Declaration, as drafted, indicated as effectively as was possible at present the degree of agreement which had been reached" (E/CN.4/SR.77/7). China, the United States, Lebanon, and France all yielded fairly quickly.
First Chang noted that it made no sense to believe that, as the paragraph seemed to suggest, "the obligations assumed by members of the United Nations would not be binding should agreement on a common conception not be reached" (E/CN.4/SR.77/8). Right he was. In the seventy-five years since the declaration's adoption, even Western philosophers have not reached a common conception on the nature of what a human right is. To remove any ambiguity, Roosevelt proposed that the disputed phrase "the nature of" be deleted from the recital. Charles Habib Malik from Lebanon, who all along had been defending the Catholic natural law point of view, thought that even "without making that common conception [of human rights] sine qua non for international cooperation, the usefulness of such an identity of views could [still] be recognized," which is why he proposed simply saying, "Whereas this pledge could be best fulfilled through a common understanding of these rights and freedoms," joining Roosevelt in arguing for the deletion of the phrase "the nature of" (ibid., 8). Pavlov "nevertheless insisted on the deletion of paragraph 6 [=7]" of the preamble (ibid., 9).
Seeking to save the recital, the French delegation said that it would accept any text that "would satisfy [the] USSR representative and which would make it clear that the Commission has tried to find a common understanding and had succeeded in doing so" (E/CN.4/SR.77/9). But Geoffrey Wilson of the United Kingdom held out, arguing that "it should be emphasized in the Preamble that the Commission had achieved a remarkable degree of understanding and that the Declaration was the result of that identity of views" (ibid., 9). A subcommittee consisting of China, France, Lebanon, the United Kingdom, and the USSR was appointed. In a vote of thirteen for, none against, and one abstention (probably the USSR), it adopted the preamble's last recital as we now have it.
I again ask that the reader not skip the statement of purpose that comes next before we get to the individual articles. That statement explains the educational purpose both of the declaration and of this commentary on it. You will also find a helpful flowchart of the stages through which all the articles went on their way to final adoption. Vaguely knowing those stages will give the reader a sense of the plot for each article's drafting.
Table of Contents
ContentsPreface
A Note on Sources
Preamble
Operative Paragraph: Statement of Purpose
Article 1. Born Free and Equal
Article 2a. Nondiscrimination
Article 2b. Colonialism and Systemic Racism
Article 3. Life, Liberty, and Security of Person
Article 4. Freedom from Slavery
Article 5. Torture and Relativism
Article 6. Person Before the Law
Article 7. Equality Before the Law
Article 8. Having Fundamental Rights
Article 9. No Arbitrary Arrest
Article 10. Fair Public Hearing
Article 11. Innocence and Nuremberg
Article 12. The Right to Privacy
Article 13. Freedom of Movement and COVID-19
Article 14. The Right to Asylum
Article 15. The Right to a Nationality and Statelessness
Article 16. Marriage and the Family
Article 17. Property and Essential Needs
Article 18. Freedom of Thought, Conscience, and Religion
Article 19. Information, Opinion, and Expression
Article 20. Freedom of Assembly and Association
Article 21. The Right to Participation in Government
Article 22. Social (Security) Justice
Article 23. The Right to Work Today
Article 24. Rights to Rest and Leisure
Article 25. Standard of Living and Social Security
Article 26. The Right to an Education
Article 27. Participation in Culture
Article 28. The Right to a (Good) World Order
Article 29. Duties as Limitations
Article 30. Indestructible and Inherent
Acknowledgments