19 November 2008
Who Wrote the Universal Declaration of Human Rights?
Susan Waltz
Susan Waltz, a specialist in human rights and international affairs, is professor of public policy at the Gerald R. Ford School of Public Policy at the University of Michigan. She is the author of Human Rights and Reform: Changing the Face of North African Politics (1995), and she has recently published a series of articles on the historical origins of international human rights instruments and the political processes that produced them. From 1993 to 1999, Waltz served on Amnesty International’s International Executive Committee, and from 2000 to 2008 she was a member of the American Friends Service Committee national board.
Eleanor Roosevelt’s name is commonly associated with the Universal Declaration of Human Rights, and for good reason. The widow of U.S. President Franklin Delano Roosevelt served as chair of the U.N. Human Rights Commission from 1946 to 1951, and she brought to that role the respect and affection of people all around the world. In the difficult political environment of the late 1940s — with an emerging Cold War and mounting opposition to colonial rule — Mrs. Roosevelt’s political acumen, diplomatic skills, and steadfast determination were crucial for the success of efforts to secure a human rights declaration.
While her role proved a vital one, Eleanor Roosevelt was not in any sense the author of the UDHR. She supplied neither the text nor the substantive ideas that shaped the UDHR. How, then, did this important document come into being? While Mrs. Roosevelt and a number of draftsmen played significant roles, the historical record discloses that the Universal Declaration reflects the contributions of diplomats from many nations and represents a true international consensus and a real commitment — even if only partially fulfilled — to expand and secure the rights of individuals everywhere.
In the most literal sense, credit for proposing a bill of human rights to the United Nations belongs to Ricardo Alfaro, former president of Panama. As Panama’s representative to the United Nations’ inaugural meeting in 1945, Alfaro brought with him a draft bill of international rights and formally proposed that it be incorporated into the U.N. Charter. Civic groups around the world, legal professionals, and public intellectuals such as British writer H.G. Wells had been advocating an international proclamation of rights for several years, and Alfaro had worked with the American Law Institute (a group of judges, lawyers, and law teachers that drafts “model” laws — templates from which legislatures can craft simpler, more easily understood statutes) to produce the draft he carried. Diplomats assembled that May in San Francisco were not prepared to adopt anything as specific as Alfaro’s proposal, but they did decide to establish a Commission on Human Rights, and they agreed informally that among the commission’s first tasks would be to develop an international bill of human rights.
The next months were spent setting up the bodies envisioned by the U.N. Charter and appointing staff to work with them. Canadian law professor John Humphrey was asked to head up a small Division of Human Rights at the U.N. Secretariat, and a preparatory committee appointed by the U.N.’s new Economic and Social Council gave shape to the U.N. Human Rights Commission. By January 1947, 18 member states had been chosen and the commission set to work.
Seeking a Common Approach
Drafting, however, turned out to be a protracted affair. The initial intention was to have the commission’s three officers prepare a draft for discussion, but that plan proved unworkable. When Eleanor Roosevelt invited Commission Vice Chairman Zhang Pengjun (also known as P.C. Chang) and Rapporteur Charles Habib Malik (Lebanon) to work on the draft at her New York apartment, the two men spent the afternoon locked in philosophical argument. One a proponent of natural rights philosophy and the other a Confucianist, the commission’s two towering intellects were unable to agree on a common approach, leaving Roosevelt and Humphrey despairing in the wings.
The impasse between Zhang and Malik had important consequences for the ultimate shape of the Universal Declaration. A high-phrased, philosophical approach to the Declaration was abandoned in favor of a pragmatic, negotiated text, and the task of preparing the draft was transferred to the U.N. Secretariat. John Humphrey — a practically minded legal scholar — was charged with producing a “documented outline” for the Declaration. At the same time, the commission’s internal drafting group was expanded to include representatives from five more states, a recognition of the inherent difficulties in crafting a text acceptable to all.
It did not take Humphrey long to produce a text because he already had at hand an impressive array of documents. Included among them were drafts and proposals submitted by numerous countries and nongovernmental associations, as well as the constitutions of all U.N. member states. Borrowing freely from these documents, Humphrey produced the first and basic draft of the UDHR. Over the next 15 months, this text was worked and reworked. French legal scholar René Cassin was asked to rearrange the articles and provide a preamble to frame them, and the drafting committee subsequently discussed and edited every line.
If the main task in 1947 was to develop and hone the text, the challenge in 1948 was to secure political agreement from all the U.N. member states. When the U.N. General Assembly convened in late September 1948, U.S. State Department officials hoped that deliberations over the Declaration would not last more than a few days. Those hopes were quickly dashed. The General Assembly’s Third Committee (covering social, humanitarian, and cultural affairs) was charged with reviewing the document before it was considered in the plenary session, and Charles Malik was elected to preside over the hearings. Malik recognized that broad participation was necessary to build consensus and to foster among member states a shared sense of political ownership. He therefore resisted efforts to rush the process. “Matters must be allowed to mature slowly, free from sharp corners,” he counseled.
After opening statements from more than 40 countries, Malik proceeded to lead an article-by-article scrutiny of the text. In daily sessions over a period of two months, delegates considered scores of written amendments (the great majority submitted by Cuba, the Soviet Union, Panama, Lebanon, France, and Egypt). Each amendment was debated, some extensively, and each article of the draft Declaration was put to a separate vote. The debate on Article 1 alone spanned six days, and though Malik eventually bought a stopwatch to ensure that speakers did not exceed time limits, the official record of the Third Committee’s painstaking deliberations fill some 900 printed pages.
When the Third Committee finally completed its work in early December of 1948, it referred the Declaration to the plenary session of the General Assembly for one more article-by-article review. The General Assembly’s historic vote on the final text took place shortly after midnight on December 10, the date now celebrated as Human Rights Day. Twenty-three of the 30 articles were accepted unanimously, and while South Africa, Saudi Arabia, and the Soviet bloc abstained on the final vote, 48 states cast affirmative votes. No state opposed.
Negotiating a Text
For many years, the detailed history of this elaborate process lay forgotten or obscured, and in the absence of nuanced understanding, many unwarranted assumptions were made. With the benefit of recent research, we now recognize that world powers were not the moving force behind the UDHR, the document did not have a single author, and its text was shaped by diplomats and civil servants rather than philosophers. Not only was each element scrutinized, but every article was modified over the course of the Declaration’s two-year incubation: The resulting text bears the stamp of many individuals representing many countries.
The story behind that text may surprise some readers today. The most ardent champions of socioeconomic rights, for example, came from Latin America (rather than Soviet bloc countries, as often supposed). The Soviet bloc delegations resisted encroachments on sovereignty but tenaciously pressed the issue of nondiscrimination, and it is thanks in large part to their persistence that every article of the Declaration applies to everyone. Egypt is responsible for the strong statement of universality at the opening of the Declaration, its delegate having pushed to make the Declaration’s provisions applicable “both among peoples of the Member States and among peoples of territories under their jurisdiction.”
Anticipating concerns of our own times, delegates from India, the Dominican Republic, and Denmark fought to have rights expressed in gender-neutral language and for explicit recognition of the rights of women. The delegate from Poland called attention to the issue of human trafficking, and the draft was amended to prohibit slavery “in all its forms.” A young woman delegate from Pakistan, herself raised in purdah (the custom of keeping women fully covered with clothing and apart from the rest of society), spoke out strongly against child marriage. And evoking the abuses — and worse — of the Nazi regime in Germany, the Philippine delegate argued forcefully against weakening the Declaration’s prohibition of torture by referring to local cultural customs. Diluting the ban, he cautioned, could provide cover for those who cloak their abhorrent practices in cultural justification.
The record leaves no doubt that the diplomats charged with preparing the Universal Declaration embraced their task and were fully aware of its potential significance. They frequently reminded each other of the need to find language acceptable to all, so that the document’s legitimacy would not be questioned. The strength of their commitment, however, was not sufficient to bridge all divisions and to correct every flaw.
Differences over the importance of sovereignty, the status of socioeconomic rights, and the ultimate question of implementation lurked just beneath the surface of many discussions, at various times threatening the whole enterprise. The eruption of war in the Middle East, South Asia, and elsewhere, and the plight of the resulting refugees, underscored the salience of human rights considerations — but also reminded delegates that rhetorical commitments unmatched by action would be futile. Some have numbered among the Declaration’s weaknesses its emphasis on rights and its relegation of companion duties to one of the final articles, where it risks appearing as an afterthought. As it happens, this placement was due to a last-minute change proposed by the Chinese delegate. John Humphrey saw this as a lapse, as no one had been more attentive than Zhang Pengjun to the need to balance rights with duties.
Time pressures may also have been responsible for the diplomatic failure that resulted in the Saudi Arabian abstention in the final vote on the UDHR. Citing the historical crusades and more recent proselytizing by missionaries, the Saudi delegate objected to the phrase “freedom to change religion” and withheld support from the Declaration. The fact that a few years later, in the context of negotiating a legally binding treaty, the same Saudi representative agreed to the somewhat more nuanced phrase “freedom to adopt a religion” suggests that greater diplomatic effort in 1948 might have secured the Saudi vote and eliminated one source of cultural ambivalence about the Declaration. Finally, the Declaration’s failure explicitly to address minority rights may have owed to the tensions brewing between the Soviet Union and Yugoslavia. The Soviets rarely bypassed an opportunity to expose heinous racial practices and inequities in the United States, but they were unwilling to push the principle of nondiscrimination when its application came closer to home. Notably, and regrettably, many delegations focused more intently on the failings of their political adversaries than on practices in their own country, a tendency as evident among small states as among their more powerful counterparts.
The Tasks Ahead
Such political considerations inevitably slowed the work of the Human Rights Commission, which had set out in 1946 to develop a binding legal instrument and an implementation mechanism alongside the Declaration. Completing those additional tasks ultimately required 18 more years. In the interim, U.N. member states reluctantly agreed to create two treaties rather than one, separating civil and political rights from social, cultural, and economic rights, each with its own implementation machinery. By the time the two treaties (or covenants) were ready for approval, the U.N. membership had grown to more than 100 states and political dynamics had changed. In the early years of these negotiations, as many as half of member states had advocated strong enforcement mechanisms, but by the mid-1960s, rising concerns about intervention and sovereignty instead often took precedence. Proposals to permit individual and NGO complaints, authorize U.N. investigations, or refer issues to the International Court of Justice were all abandoned. Instead, two standing committees, or “treaty bodies,” were established to monitor human rights performance through periodic reports submitted by the states that ratified the covenants.
To anyone who tracked the full 20-year negotiation process, the disparity between early aspirations and eventual results was abundantly evident. An optional protocol attached to the covenant on civil and political rights did create an opportunity for states to provide a complaint mechanism for their citizens, but this was not the robust enforcement machinery many had envisioned at the outset. The UDHR project did not fulfill optimists’ dreams, but it has exceeded the expectations of the pessimists. When the texts of the two covenants were forwarded to the General Assembly in 1966, the votes were unanimous. This time no state abstained or opposed.
U.N. member states have since reaffirmed their commitment to the Universal Declaration at a 1993 world conference on human rights, and more than 150 countries have ratified the two covenants. Collectively, these three documents — the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Social, Economic, and Cultural Rights — are informally called the International Bill of Rights. Together, they form the bedrock of international human rights law.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.
