Seventy years ago this month, the United Nations General Assembly adopted the Universal Declaration of Human Rights with the highest of hopes. The declaration lists 30 fundamental rights to which every human being is entitled — civil and political, social, economic, and cultural. They range from the sublime to the mundane: the right to freedom of conscience, but also the right to paid vacation and the right “to enjoy the arts.” Eleanor Roosevelt, addressing the assembled delegates in Paris, proclaimed that the document “may well become the international Magna Carta of all men everywhere.”
In 2018, however, the declaration remains an unfulfilled promise. Progressives fault the human rights movement for ignoring global economic inequality, and regimes like Iran and Venezuela have cynically weaponized human rights to score propaganda victories at the United Nations while shielding themselves from international scrutiny.
But the real problem is less overt politicization or selective implementation than poor design. The truth is that by crafting a voluntary declaration instead of an international law, its authors left it toothless to protect humans around the world whose rights it sought to enshrine. And in doing so, they laid out a pattern for future failures. Governments might do a much better job of safeguarding the integrity of their citizens today if only the framers in 1948 had insisted that U.N. member-states immediately accept binding rules instead of unenforceable norms.
The Universal Declaration was a product of the brief afterglow of Allied victory in World War II. During the war, Winston Churchill and Franklin D. Roosevelt began to pepper their speeches with references to restoring the “rights of man ” and protecting “human rights” from tyranny and aggression. This soaring if vague rhetoric sent European and American policy planners scrambling to imagine what securing individual rights in the global legal architecture of the postwar world might look like.
Building that architecture eventually fell to the new U.N. Commission on Human Rights, where diplomats and legal consultants worked to draft the declaration’s text over the course of 1946 to 1948. They were recruited from leading legal and political figures around the globe, with representatives from China, France, Chile and India , among other nations.
This diversity, however, guaranteed that there would be no easy consensus on what the declaration should contain. Eleanor Roosevelt clashed with her Soviet counterparts, who opposed trade unions and the right to private property. Latin American representatives wanted God mentioned and abortion prohibited. The Saudis opposed freedom of religion and freedom of marriage as antithetical to Islamic views. The Americans worried about criticism over racial segregation, while the British and the French feared any provisions that might undermine their colonial empires.
What emerged from these debates was a surprisingly modest vision. The goal of the Universal Declaration was not to end state sovereignty or to level the playing field of global justice. Rather, its drafters forged a legal compact in which nation-states would commit to an internal baseline of freedom and welfare for their own citizens. In fact, the final text of the Universal Declaration is remarkably neutral on many core questions of modern politics. It does not demand democracy or proscribe autocracy. It is fully compatible with communism, capitalism and even colonialism.
Most strikingly, it is technically not law at all, but only a statement of nonbinding principles. Originally, the United Nations announced the creation of an International Bill of Rights akin to a global constitution. But over the course of 1947 and 1948, the document’s framers made the fateful decision to separate the declaration from a binding legal covenant, or international treaty, that U.N. member-states could eventually sign into law. At the time, the absence of an enforcement mechanism was viewed as a necessary price to pay for global consensus. Many also assumed that this move would suffice, since Western superpowers would backstop the system with their global clout through the Security Council.
But enumerating rights without obligating states to recognize them left international human rights as soft legal rhetoric bereft of hard legal authority. States could voice selective support for norms without any independent judiciary to verify their claims or provide a forum for injured individuals.
Sharp-eyed observers said as much at the time. In 1947, Hersch “Zvi” Lauterpacht, a leading expert on international law, objected in a BBC radio lecture that “to a lawyer, the enunciation of a right without the provision of a remedy is a juridical heresy . . . What is required at this juncture of history is not the recognition and not even the formulation of inalienable human rights but their effective protection.” A year later, he added, “It is clear to me that the declaration does not carry things further and that in some important respects has put the clock back.”
Lauterpacht was prophetic, for the U.N. Commission on Human Rights, the body of elected country delegates and U.N. bureaucrats charged with supervising the Universal Declaration, quickly showed itself unwilling or unable to respond to requests for help. Between 1947 and 1957, roughly 65,000 letters arrived at its doorstep from individuals alleging human rights violations in their countries. The avalanche of mail powerfully testified to the fact that the Universal Declaration had alerted people to the ideals of human rights. Yet the commission declined to investigate these complaints; neither great powers nor small ones wanted it determining when they’d broken the rules.
In the 1960s and 1970s, the gap between the stirring language of the Universal Declaration and its actual effectiveness only expanded. When new African states entered the U.N. ranks after 1960, many veteran human rights activists hoped they would use their political clout on behalf of the long-planned legal treaties related to the Universal Declaration. They did so in 1966, ushering in two major treaties designed to implement the declaration. This eventually led to other human rights treaties, addressing issues such as racial discrimination and women’s rights, along with the controversial International Criminal Court.
Yet the patchwork nature of this new system of laws made it vulnerable to intense politicization. Worse still, the new postcolonial states proved just as determined as their former Western rulers to guard their sovereignty and pick and choose which rights to observe. In 1968, when the United Nations hosted a conference in Tehran to celebrate the 20th anniversary of the Universal Declaration, Western diplomats came away dismayed by how human rights activism in the developing world had devolved into ideological score-settling. “Many of those who attended the Conference felt that this would be an occasion for mutual backslapping,” wrote Rabbi Maurice Perlzweig of the World Jewish Congress. “As it turned out, it proved to be an occasion for mutual nose-punching.”
Curiously, the political controversy over human rights at the United Nations did not stop a growing interest in the Universal Declaration itself. If anything, disillusionment with the limits of human rights law only increased reliance on the text as a norm. Across the 1970s and 1980s, as human rights grew from an elite U.N. legal project into a grass-roots movement, groups like Amnesty International routinely invoked the Universal Declaration to mobilize public opinion. In the absence of international legal enforcement, popular culture, media and protest politics could be used to name and shame states. The climax came in 1988, when Amnesty International sponsored a series of rock concerts around the world to celebrate the declaration’s 40th anniversary. Leading musicians like Sting, Peter Gabriel, Tracy Chapman and Bruce Springsteen took the stage to promote human rights awareness — along with Amnesty’s own brand and that of its corporate sponsor, Reebok.
The end of the Cold War in the 1990s brought a burst of U.N. efforts to reverse-engineer some of the pieces missing from its half-built legal architecture. The General Assembly launched the Office of the High Commissioner for Human Rights in 1993 to serve as a neutral legal ombudsman, while world leaders gathered in Rome in 2002 to revive the old idea of an International Criminal Court. At the behest of the United States, the rights commission was restructured and renamed as the Human Rights Council in 2006 to depoliticize its work. Yet these institutional developments still do not make up a full legal system that can truly enforce the Universal Declaration as global law.
Last year, the Office of the High Commissioner for Human Rights launched a 70th-anniversary hashtag, #standup4humanrights, and a website that insists “we can all be Human Rights Champions.” All it takes, apparently, is posting individual stories online and recording an article of the declaration in one’s own language. There is hardly any mention of law or politics; it suffices to “promote, engage and reflect.” That lofty rhetoric neatly captures how human rights remain captive to their flawed postwar origins. The strategic decision to sidestep hard law in favor of soft norms yielded a new universal moral language. That success, however, came at the cost of a more comprehensive legal system that could withstand politics and compel states to do the right thing. In a world sorely lacking global leadership, champions of human rights stand poised to earn only the hollowest of victories.
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