The Legacy of Eleanor Roosevelt
The Universal Declaration of Human Rights
May 28, 2001, Vol. 6, No. 35 • By JEREMY RABKIN
MARY ANN GLENDON HOLDS A DISTINGUISHED CHAIR at Harvard Law School. Yet she has published such eloquent protests against the moral arrogance of judges and lawyers as Rights Talk and A Nation Under Lawyers. She served as the Vatican's representative to the U.N.'s major international conference on women in 1995. Then, she published a set of sober cautions about feminist bias and partisan dogmatism in human-rights advocacy.
Glendon's latest book, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, might be understood as an effort to combine her interests -- rescuing human-rights talk from its contemporary abuses by redirecting attention to its nobler origins. Among other things, Glendon offers a group portrait of the diplomats who were, in effect, the founders of international human-rights protection. Her book's chief merit is to vindicate the seriousness and sincerity of these founders, showing how they drafted the Universal Declaration of Human Rights and secured its adoption by the United Nations in 1948.
But A World Made New has a corresponding defect. By focusing so closely on the founders and their ideals, it avoids submitting those ideals to the lessons of subsequent experience. In effect, Glendon asks us to judge these founders without much scrutiny of what they actually founded. In this way, Glendon's well-meaning book preserves many of the evasions or (as it seems to me) sheer delusions of the political leaders she writes about.
By chronicling the drafting of the Universal Declaration, Glendon gives drama and immediacy to a pivotal moment in international diplomacy. Glendon has studied memoirs and letters of the participants as well as official records, and she has uncovered Soviet records from the period. She weaves these new details into a fascinating and well-paced account.
We learn, for example, that Stalin's representatives at the United Nations were never sure what stance to take toward the Universal Declaration on Human Rights. Lacking clear instructions from Moscow, Communist delegates generally contented themselves with sniping from the sidelines. In the end, they could not vote in favor of the Declaration but did not feel they could vote against it, either. They simply abstained -- as did South Africa, Saudi Arabia, and a few other states.
Thus, Glendon shows, it was not a desire to accommodate the Soviets that led the framers of the Declaration to include broadly worded guarantees of economic and welfare entitlements. These guarantees were already contained in the working documents from which the Declaration was honed. The initial staff report was prepared by John Humphrey, a Canadian law professor who privately described himself as a "socialist" -- though not a particularly doctrinaire one. (He confided to his diary that "socialism is a technique and nothing more. What we need is something like the Christian morality without the tommyrot.")
Compared with most other participants, Eleanor Roosevelt, the leading American representative to the Human Rights Commission, comes across in Glendon's account as much more down to earth, much more focused on immediate diplomatic challenges, and much more serious about the difficulties of securing broad international cooperation in this field. She was well aware that the United States Senate was not likely to ratify a formal human-rights treaty. She therefore persuaded other delegations that the United Nations should start its human-rights advocacy with a non-binding declaration of principles (a measure that would require no action by the Senate).
As it turned out, Mrs. Roosevelt was prescient about the difficulties. It would take twenty years before the United Nations could agree on detailed provisions to implement the Universal Declaration in treaties that would (ostensibly) be binding international law. (The United States would ratify none of them until the early 1990s, and then only with severely constraining reservations.) Even while working on a non-binding declaration, Mrs. Roosevelt sought to curb overreaching provisions. She resisted ambitious guarantees of worker rights, for example. Glendon reports that she also resisted demands for what now would be called "gender inclusive language."
Despite her special mention in the book's subtitle, however, Eleanor Roosevelt is not quite the leading character in Glendon's story. A World Made New gives equal attention -- and more credit -- to Lebanon's ambassador, Charles Malik. He served successively as rapporteur of the Commission on Human Rights when it drafted the Declaration; then as chairman of the Economic and Social Council when it polished that draft; and finally as chairman of the wider U.N. committee that presented the Declaration to the General Assembly (where the Universal Declaration was finally adopted in December 1948).
It reflects well on the United Nations of that era that so much trust was placed in Malik. He was no diplomatic hack. He had earned a doctorate in philosophy at Harvard in the 1930s, after studying with Alfred North Whitehead and then with Martin Heidegger in Germany. He was called from his career as a philosophy professor in Lebanon to serve as U.N. ambassador, at a time when no one -- including Malik, himself -- was quite sure what that role would entail. Glendon tells us that in early deliberations, he would explicate the philosophy of Thomas Aquinas to bemused fellow delegates. But he won their respect with his patience and parliamentary skill in steering acceptable compromises through a succession of fractious debates.
Even on philosophical disputes, however, there were other delegates prepared to join or counter Malik at a high level of discussion. Glendon gives special credit to China's P.C. Chang (who had also earned a doctorate in philosophy, studying under John Dewey at Columbia) and France's Ren Cassin (a distinguished jurist who was already serving as president of the Conseil d'Etat, the very French counterpart to the U.S. Supreme Court). Along with strong advocates from the Philippines and several Latin nations, these men left distinctive imprints on the ultimate text of the Universal Declaration. None of the framers, Glendon shows, were mere prattlers.
But can the political grasp of these visionaries still command our respect? Chang was arguing the fine points of the human-rights declaration as Mao's army was overrunning his country. Did he think the Universal Declaration would help protect citizens of Red China? Glendon does not pursue this obvious and seemingly quite pertinent inquiry.
At the very time that he was honing the language of the Universal Declaration, Charles Malik was also serving as unofficial spokesman for the Arab League in U.N. debates on the future of Palestine. Malik doggedly opposed a separate Jewish state but insisted that in an Arab-ruled Palestine, there would be "absolute protection of Jews and no discrimination whatsoever." In fact, at the same time Malik was offering his diplomatic assurances, Azzam Pasha, secretary-general of the Arab League, promised "a war of extermination and
Malik lived to see his own country torn by brutal sectarian conflict, then occupied and controlled by Syria, one of the world's most ruthless despotisms. Did Malik, a Lebanese Christian, have any real understanding of the Arab world? Glendon does not take up the question of whether Malik found the Universal Declaration any help for Lebanese Christians or any other minority group or individual in that part of the world.
Ren Cassin had followed Charles de Gaulle to London in 1940 and achieved prominence in postwar France as de Gaulle's prot g . Glendon tells us that Cassin made a total break with de Gaulle after the French president shifted to a pro-Arab position in 1967 and tried to cement this new posture with derogatory remarks about Jews. On Glendon's telling, Cassin was genuinely startled by de Gaulle's capacity for ruthless pursuit of French national interest -- after he had spent a quarter century in de Gaulle's entourage. For Cassin, French national vanity was entirely consistent with strong internationalism: "The more I am French," he proclaimed in 1968, "the more I feel a part of humanity." But he was "shocked" by "the scandalous politicization" of U.N. agencies. Were he living today, he would, no doubt, again be shocked to find France intriguing at the United Nations on behalf of Saddam Hussein and the perpetrators of genocide in Rwanda.
Even Eleanor Roosevelt, for all her supposed realism, was distressed when President Truman launched his famous "Truman Doctrine" (offering aid to Greece, Turkey, and other countries resisting communism) without consulting the United Nations. She believed the United Nations would be a force for peace and stability which could contain the Cold War if only the United States would work within the U.N. system. This was not exactly prescient.
Great visionaries may be entitled to great blind spots, and to point out their human failings does not discredit their work. But it may remind us that Glendon's history, in displaying the admirable qualities of the drafters, does not establish the admirable quality of their product. And Glendon is not very convincing in her efforts to defend the value of the Declaration on broader grounds.
She struggles, for example, to refute charges that the Universal Declaration reflects a particular set of European or Western principles which are not truly "universal." She thus devotes a whole chapter to the work of a UNESCO committee, which, while diplomats were wrangling over the Declaration's text in the spring of 1947, undertook to survey the hopes of philosophers and thinkers from a variety of religious and philosophic traditions. According to Glendon's summary, they all expressed general sympathy for international guarantees of basic rights and a higher law to restrain and guide governments. Within U.N. committees, New Dealers and Neo-Thomists could make common cause with European socialists and defenders of Confucian verities.
But while universality may be recognized by thoughtful observers from different traditions, that doesn't mean it can be promulgated, much less negotiated. Do ideas become more universal when wrenched from their supporting context? Would Christianity be more universal if stripped of its theology ("Christianity without the tommyrot")? Glendon emphasizes that the Declaration was meant to be an inspirational appeal rather than a model code. Yet the inescapable fact is that it is not framed in very inspiring rhetoric -- which is why it is so rarely quoted.
There is a certain serene confidence in Jefferson's famous line: "We hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights." The counterpart affirmation in the preamble to the Universal Declaration, with its passive voice and legalistic trappings, sounds evasive by comparison: "Whereas the 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."
Charles Malik did want to mention "the Creator." Other delegates rejected his proposal, claiming it would endanger the universality of the text. Glendon reports the conclusion of the Neo-Thomist philosopher Jacques Maritain, "Yes, we agree about the rights but on condition that no one asks why." Can we be equally inspired by the practical conclusions without the sublime premises?
The Universal Declaration actually aspires to be much more than practical advice to governments. It describes itself, in the paragraph immediately following the preamble, as "a common standard of achievement for all peoples and nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance ...among the peoples."
Glendon acknowledges that the moral vision of the Universal Declaration is not entirely consistent with that embodied in "the more individualistic documents of Anglo-American lineage" -- such as the American Declaration of Independence or the U.S. Bill of Rights. These earlier documents did not demand that all citizens keep them "constantly in mind" and "strive by teaching and education" to "promote respect" for them. Perhaps that is because our own founding texts spoke of rights that were already widely recognized and respected by Americans. But the framers of our documents would not have dared to suggest (as the Universal Declaration implicitly does) that restraints on government are a substitute for religious restraints on individuals.
Glendon cautions that the Anglo-American rights tradition is overly individualistic and slights the duties we owe to others. Certainly, one can't make this complaint about the Universal Declaration, which begins by instructing every individual in the world what to think and teach. It then proclaims a right to education (while admonishing that education "shall further the activities of the United Nations"). In between, the Declaration proclaims a long list of welfare guarantees, such as each person's "right to just and favorable conditions of work" and "right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented if necessary, by other means of social protection."
On the other hand, the Declaration offers no guarantees against general expropriations of property (only a stricture against "arbitrary confiscation," which seems directed at invidious, individualized seizures). The Declaration says nothing about compensation when property is taken. It offers no guarantee of contract rights and no guarantee of commercial freedom. In its eagerness to emphasize inclusiveness, the Declaration guarantees the right of everyone to vote -- but (here bowing to Soviet insistence) says nothing about the right of competing parties to field rival slates of candidates.
These are hardly minor omissions. For most of the half century since the Declaration was proclaimed, much of the world has struggled with socialist economies that proved woefully unable to provide adequate subsistence to people -- and most of the world also prohibited the sorts of genuinely competitive elections that might have challenged state overreaching and incompetence. Perhaps the Universal Declaration can't be blamed for any of this, precisely because it is so generally disregarded. But in hindsight, one can fairly wonder if its "universal" platform -- on which even socialists could stand without fear of challenge -- was really well-conceived.
The most fundamental question raised by the Universal Declaration concerns the status of international rights protection. The title of Glendon's book, A World Made New, acknowledges that the Universal Declaration is not just an extension of older traditions. It is most novel in its claim to international authority. The inescapable logic of establishing an international standard is that there ought to be international enforcement for the standard. Glendon's own account shows that this idea was present to the diplomats. The Declaration itself proclaims the need for subsequent "international measures" to "secure" its standards, and almost all of the United Nations' subsequent "declarations" on human rights has been followed up by subsequent treaties that purport to be legally binding.
Our own Declaration of Independence holds that rights come from God, and governments exist "to secure these rights." It is not easy to see how American rights could be made more secure by "constantly teaching and educating" Americans that rights really come not from God, but from the United Nations, and that the security of rights rests with diplomats and bureaucrats at the United Nations. Does anyone believe that we would be more secure in our rights if we allowed appeal from the U.S. Supreme Court to some ultimate authority in the United Nations?
Ren Cassin certainly thought so. On receiving a Nobel Prize for his contributions to drafting the Universal Declaration, he proclaimed that the advent of international human-rights protection meant that "nations have lost their traditional exclusive jurisdiction over their treatment of their citizens." It was Cassin who insisted that the Declaration ought to be termed "universal" rather than merely an "international" agreement among independent states.
This vision has been realized in Western Europe. Animated by its own ideals of higher justice, the European Court of Human Rights has ordered Ireland to liberalize its abortion laws and more recently ordered Britain to drop its exclusion of homosexuals from the military. Meanwhile, the European Court of Justice claims authority to nullify parliamentary enactments of the member states and also to nullify rights protections in the constitutions of member states -- on behalf of some vague, open-ended notion of a higher European justice.
Glendon cannot bring herself to say that Americans would be better off living under such a system. But she still chides the United States for not participating more fully in international human-rights machinery. "One need not be motivated by any love affair with the United Nations," she warns, "to recognize [its] importance" as a "starting point for cross-cultural discourse [on human rights]. To accept the claim that meaningful cross-cultural discussions of freedom and dignity are impossible is to give up on the hope that the political fate of humanity can be affected by reason and choice."
But in the age of satellite broadcasting and the Internet, we have no lack of "cross-cultural discussions." Holding such discussions at U.N. forums does not make them more meaningful. We don't "give up hope" for the "political fate of humanity" when we acknowledge that humanity is not in a position to make global collective decisions. In political matters -- as in economic life and many other spheres -- "reason and choice" are predominantly a matter of comparisons and distinctions. The more we have global standards handed down to us from above, the less any of us can exercise "reason and choice."
The framers of the Universal Declaration displayed their collectivist leanings in their disdain for independent states as much as in their distrust of free markets. They meant well, and they wanted to help everyone to get what they should receive. These globalist benefactors weren't too troubled at disagreements over their premises, because they were so sure of their conclusions. And they were so sure of their conclusions because they all agreed on them -- whatever the actual citizens of actual countries might think. This is not the sort of "reflection and choice" to which Alexander Hamilton appealed in the opening pages of The Federalist, where American citizens are urged to set an "example" for the world in choosing constitutional arrangements for themselves.
The Declaration's founders were fascinating figures and deserve the attention Glendon gives them in A World Made New. But the fact remains that they were animated by a spirit of moral hubris, which is akin to the animating spirit of American judges and law professors in their liberal, activist heyday. Mary Ann Glendon offered telling and important criticism of that activism in her earlier works. She should know better than anyone why the spirit of legalistic activism does not appeal to most Americans.
Jeremy Rabkin teaches constitutional law a Cornell University.