Article by Article

The Universal Declaration of Human Rights for a New Generation

Johannes Morsink

• Publisher: University of Pennsylvania Press
• Year: 2021
• ISBN:
  9780812298130
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

The 1948 Universal Declaration of Human Rights (UDHR) is one of the most important and debated sociopolitical documents of the twentieth century. A leading authority on the UDHR, Johannes Morsink is the author of The Universal Declaration of Human Rights: Origins, Drafting, and Intent (2000) and Inherent Human Rights: Philosophical Roots of the Universal Declaration (2009). With this new book, Morsink has now written a volume for a new generation of human rights students and activists, one that presents an article-by-article account of the formulation of each article in the UDHR. The author comments perceptively on how they have been argued, argued over, and used in a wide range of political discourses. Comprised of short essays on each of the Declaration's thirty articles, this book constitutes the most accessible and comprehensive approach to this document and explicates the UDHR's continued relevance in contemporary times.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 1

Born Free and Equal

If God does not exist, everything is allowed.

—Fyodor Dostoevsky

Evolution has endowed us with ethical impulses. Do we know what to do with them?

—Steven Pinker

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All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

As a warning to the reader that the drafting of the declaration was not a simple process, I need to begin with the observation that I think the opening phrase, “All human beings …,” though felicitous, is the result of a mistake in transmission. Until the Third Session of the commission, the text had read, “All men …” But in that session Belgium proposed it be changed to read, “All human beings …” However, the session instead adopted the UK-India amendment’s phrasing of “All people, men and women …” At that point an unfortunate transmission error occurred because this vote was not passed on to the Third Committee. What that committee and later the General Assembly approved was the Belgian phrasing of “All human beings …,” which had not been officially adopted but had slipped in under the radar. Similarly, the women’s lobby had gotten accepted “All people” for the opening phrase, but ended up with what we have. Luckily the same group did see to it that “in a spirit of brotherhood” replaced “like brothers” as the closing phrase of the article (E/CN.4/81). These and other changes led the Office of the UN High Commissioner for Human Rights to point out in its 2019 series of UD articles that “for its time the document is remarkably free of sexist language” (Art.1).

The first sentence of Article 1 reminds us of two Enlightenment-era terms (“inherent” and “inalienable”) that the drafters used in the first recital of their preamble (see my discussion of the preamble). It is a virtual rewrite of the first sentence of the 1789 French declaration, which says that all “men are born, and always continue, free and equal in respect of their rights.” The word “born” also reminds us of the first sentence of Rousseau’s Social Contract, which he begins with the observation that “man is born free, yet everywhere he is in chains.” The French delegate René Cassin (who wrote this Art.1 first sentence) told the 1948 General Assembly that “in common with the 1789 Declaration, the [Universal Declaration] was founded on the great principles of liberty, equality, and fraternity” (A/PV.180/865). The idea is that people are born with human rights, which is the source of their freedom and equality. These rights are part of their moral DNA and not the result of any kind of legislative or judicial procedures. After a vigorous debate and with a vote of twenty for, twelve against, and five abstentions, the Third Committee voted to keep the word “born” in the text (A/C.3/SR.99–124).

Lebanon proposed (A/C.3/235) replacing the words “are born” with “are” because it felt “there should be no implication that people though born equal, might lose that equality for any reason” (A/C.3/SR.98/98). Others worried that that loss might already have happened, as when the Soviet delegate theorized that the assertion “that all men are born free and equal represented a somewhat shaky basis for the declaration … [for] it was obvious that in the days of feudalism men had not been born free and equal.” He therefore “laid emphasis on the fact that equality of rights before the law was determined not by the fact of birth but by the social structure of the state which had to promulgate laws to ensure that equality” (ibid., 110). Lebanon was a proponent of Catholic natural law ideas and not friendly to this Soviet legal positivist stance. When it saw where its proposal would lead, it withdrew its own amendment in order to support a Chinese one (A/C.3/236) that the word “born” be deleted from the first sentence. But as I said, the Third Committee wanted to keep that word in.

Many of Alexei Pavlov’s colleagues did not see “born free and equal” as a legal statement, for that would involve them in discussions about legal implementation by states, which issue they had a policy of avoiding. They looked on this birth as a moral rider to people’s physical births. Most did not say exactly when this moral rider attached itself to the physical process, though some Latin nations were willing to answer that by saying it happened at conception. Mexico thought “a human being’s right to freedom and equality began from the moment of his conception and continued after his [physical] birth” (A/C.3/SR.99/121). The Venezuelan constitution also “guaranteed the protection of the child from its conception until its development had been completed” (ibid., 122). No roll-call vote was taken, so it is hard to say which way these nations voted on the word “born,” whether to keep the text transcendent to national legal systems with that word in it or hold out for the moment of conception by deleting the word.

An Iraqi amendment captured this ambiguity by proposing that “all men should be free and equal in dignity and worth, and should be entitled to similar treatment and equal opportunities” (A/C.3/237). This put the entire article on an ethical plane, which is what China had also suggested be done. Explaining his country’s amendment, Minochehe Masani Abadi said he felt “that the authors of the article had apparently been carried away by its emotional content; it was reminiscent of Rousseau and of the French revolution; [but] it was lacking in both clarity and originality” (A/C.3/SR.96/100). The article should make a statement either of fact or of rights, in which case the word “should” would be appropriate.

In the ensuing discussion it was repeatedly pointed out that though people are often not born into equal circumstances, they do have a deeper moral equality and that the word “should” failed to capture that deeper shared human dignity. For instance, the Egyptian delegate thought that “the Iraqi amendment weakened [Article] 1 … which should set forth man’s inherent right to freedom and equality” (A/C.3/SR.99/118). His country had proposed a recital for the preamble that said that “the fundamental rights of man are not derived from his status as a national of a certain State, but constitute inherent attributes of his person” (A/C.3/264). At this point the Iraqi amendment was withdrawn.

Most drafters understood that the claim that people “are born free and equal in dignity and rights” was in no way meant to deny that gross inequalities existed everywhere. It was against the background of these obvious inequalities that they wanted to assert certain moral rights that are inherent in the human person. Syria wanted to retain the word “born” in order to “exclude the idea of hereditary slavery” (A/C.3/SR.99/118). The Lebanese and Chinese delegations that had first proposed deletion of the word “born” were themselves adherents of this inherence view. In the later discussion on the human right to asylum, Lebanon called this right “part of the birthright of man” and said that this right to asylum was one of those that were “inherent in the human person” (A/C.3/SR.121/335–36). And right after the word “born” was kept in the text, Lebanon (supported by China) suggested that in that case “and remain” should be added because “it would be dangerous to leave the words ‘are born’ without adding ‘and remain,’ as it would imply that human beings were born free and equal, but later, for various economic, social and political reasons ceased to be” (A/C.3/SR.99/124).

That addition was never voted on. Eleanor Roosevelt of the United States objected to it because “it was obviously not true that human beings always remained free and equal in dignity and rights” (ibid.). To which observation Cassin of France responded that “the [Third] Committee was not acting as a national parliament but as representative of the human community and in that capacity was competent to proclaim such an ideal” (ibid.). France had also calmed the waters earlier by saying that the drafters of the French bill of 1789 also had known that there were inequalities everywhere, but they had “wanted to affirm their belief in man’s inherent right to equality and freedom” (A/C.3/SR.99/116). As I said, “and remain” was never voted on, but the moral rider suggested by the word “born” was kept in the text by a sizable majority.

In the Working Group of the Second Session of the commission, the chair asked France and the Philippines to come up with a joint proposal for the second sentence of Article 1. This is what they proposed: “They are endowed by nature with reason and conscience and should act towards one another like brothers” (E/CN.4/AC.2/SR.9). Led by Bodil Begtrup, its chairperson, the women’s lobby had no trouble replacing the word “brothers” with our “in a spirit of brotherhood.” But the phrase “by nature” was not so easily dealt with. In the Third Committee Brazil proposed to start the second sentence this way: “Created in the image and likeness of God, they are endowed with reason and conscience” (A/C.3/243). The Brazilian delegate said that his amendment “was simply intended to express the religious sentiments of the Brazilian people,” and that “he felt sure [it] would be welcomed by an overwhelming majority of the peoples of the world” (A/C.3/SR.95/91). Argentina supported the amendment, arguing that the idea of men “being created in the image and likeness of God” was a belief that “all men held in common” (A/C.3/SR.98/109). Bolivia did not agree with the Soviet Union that no reference should be made to God because many countries had a separation of church and state: “Even in the USSR, where an attempt had been made to abolish all idea of God, freedom of worship had been restored. The common factor in mankind and the most realistic basis for human understanding was the belief in a Supreme Being and that belief should therefore be mentioned in the Declaration of Human Rights” (ibid., 113).

The Brazilians wanted to combat a materialistic view of human nature on which to base belief in human rights. One can interpret that religious stance as taking Dostoevsky’s side when he is supposed to have suggested that “if God does not exist, everything is permissible,” meaning theistic belief is necessary to ground moral values. I devoted an entire book to this question, defending the opening citation from Steven Pinker with which I began this essay (see Johannes Morsink, The Universal Declaration and the Challenge of Religion [Columbia: University of Missouri Press, 2017]). My point there is that all the world’s major religious traditions contain a strand according to which people have independent access to the basic truths of morality, such as are found in the UD. That is why the UD drafters—many of whom were people of faith—were willing to approve a secular but benign declaration. Article 18 shows that the declaration is in no way an antireligious document. The drafters just did not think this kind of foundational question should be settled by voting on it.

I noted earlier that the phrase “by nature” had first been introduced in the Working Group of the Second Session. When that phrase arrived in the full Second Session of the commission, Alexandre Bogomolov of the USSR took it to be a reference to “the ideas of the materialistic French philosophers of the eighteenth century” (A/CN.4/SR.34–35). Belgium pointed to Rousseau as an exception, but the image that “nature” stood for materialism took hold, so that now with the Brazilian proposal in the Third Committee the drafters were asked to choose between basing these rights on God (or spirit) or on nature (or matter). Peng-Chun Chang from China did not see any benefit in his colleagues debating once again the nature of man. As he saw it, “the concept of God laid particular stress on the human, as opposed to the animal, part of man’s nature” (A/C.4/SR.98/114). He therefore suggested that the phrase “by nature” be deleted “in the hope that the Brazilian delegation would be willing to withdraw its amendment and so spare the members of the Committee the task of deciding by vote on a principle which was in fact beyond the capacity of human judgment” (ibid., 114). That is exactly what happened. The phrase was taken out and the amendment withdrawn.

Article 2a

Nondiscrimination

No two leaves are alike, and yet there is no antagonism between them or between the branches on which they grow.

—Mohandas Gandhi

Throughout history, demagogues have used state power to target minority communities and political enemies, often culminating in state violence. Today, we face that threat in our own country, where the president of the United States is using the influence of our highest office to mount racist attacks on communities across the land.

—Ilhan Omar (US congresswoman from Minnesota, July 26, 2019)

______________

[a] Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, birth or other status.

The Charter of the United Nations mentions “human rights and fundamental freedoms” seven times, but it never gives us any specifics. Several times it speaks of these rights and freedoms negatively, as when it prohibits discrimination among peoples on the basis of “race, sex, language or religion.” Articles 2 and 7 of the UD are an elaboration of this charter principle of nondiscrimination, which is why they for a long time used to be treated as one article. I explain their separation when we get to Article 7. Here I tell the story of the first half of Article 2, which is the only article to which I devote two stories.

The long nondiscrimination list of Article 2[a]—“such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”—is a bold expansion of the four charter items of “race, sex, language or religion.” Much of this expansion happened in the Sub-commission on the Prevention of Discrimination and the Protection of Minorities, to which the UD drafters had sent their text for advice. The title of this subcommission speaks to my opening citations about race relations in the United States because the drafters saw the protection of minority rights and the prevention of discrimination as intertwining causes. They felt that banning discrimination in the full range of UD human rights was the best way to protect the rights of members of minority groups. This belief ended up being the main reason why the drafters did not include a specific article on the rights of members of minority groups. Opponents of such an article (for which see UD 27) held that Article 2 had done a good job protecting members of minority groups.

The UD drafters took the UN Charter items of “race, sex, language or religion” for granted and went on from there. Even so, the women’s lobby took a great deal of sexist language out of the UD text, religion got its own article (Article 18), and race elicited a discussion about color. As to language rights, unfortunately there are only vague hints of those in the text when it speaks of a “fair … hearing” in Article 10 and of “all the guarantees necessary for his defense” in Article 11. For us the question is why the drafters felt the need to go beyond these four UN Charter items. I briefly comment on the newly added, italicized items in the UD 2 list quoted in the previous paragraph.

Color. Since color is the most obvious and frequently used physiological characteristic used to draw invidious distinctions between people, it is no accident that the strongest proponents of this addition to the UD list were countries like India, Lebanon, and the Philippines with large minority groups. Note that none of these are North Atlantic nations.

John Humphrey’s constitutional research (E/CN.4/AC.1/Add.1) had shown that the Cuban (Art.20), Guatemalan (Art.21), and US (Fifteenth Amendment) constitutions all included the term “color.” Pointing out that the American Federation of Labor “had thought fit … to refer explicitly to colour as well as race in connection with discrimination,” M. R. Masani, the expert on the previously mentioned subcommission from India, proposed an amendment to do just that for UD Article 2 (E/CN.4/Sub.2/SR.4/2). His argument was that “race and colour were two conceptions that did not necessarily cover one another” (ibid., 3). Chairperson W. M. J. McNamara from Australia also “urged that if there was the slightest doubt it was better to add the word ‘colour’ than risk leaving out certain groups” (ibid., 3). French expert Samuel Spanien supported the idea because “the Sub-Commission could not embark on ethnological research” and “there was no scientific definition of the word ‘race’ ” to begin with (ibid.). The Haitian, US, and Belgian experts disagreed. They all felt that adding “colour” at this time would cause problems because UN-related organizations like the International Labour Organization, the World Health Organization, and the United Nations Educational, Scientific and Cultural Organization had been using the standard four charter items. If “colour” was now added. tho...