The Legacy of Eleanor Roosevelt
The Universal Declaration of Human Rights
May 28, 2001, Vol. 6, No. 35 • By JEREMY RABKIN
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.