Rereading the Universal Declaration of Human Rights: Plurality and Contestation, Not Consensus

Abstract

In this article, I examine the drafting of the Universal Declaration of Human Rights. My analysis counters conventional narratives of consensus and imposition that characterize the development of the UN human rights regime. The central argument is that within the founding text of the contemporary human rights movement there is an ambiguous account of rights, which exceeds easy categorization of international rights as universal moral principles or merely an ideological imposition by liberal powers. Acknowledging this ambiguous history, I argue, opens the way to an understanding of human rights as an ongoing politics, a contestation over the terms of legitimate political authority, and the meaning of “humanity” as a political identity.

Notes

¹What I am terming the legislative conception of rights is a generalization of a number of different accounts of what human rights are and how they are justified but that share a common logic in their justification—namely that of a moral authority outside of, and above, politics that gives legitimacy to the law and its enforcement. See Michael Walzer's work (2007: 1–21) for a similar account of this legislative conception of rights.

²Agonism is most basically the idea that politics and ethics are defined by the persistence of disagreement, which means that conflict is an inherent part of social life—the challenge of agonism is to create a politics and an ethics in which conflict is transformed into contestation between parties that can nonetheless coexist—what Ernesto Laclau and Chantal Mouffe characterize as the move from antagonistic to agonistic relationships (Laclau and Mouffe 2001; Mouffe 2011). In the realm of rights, an agonistic understanding focuses on the plurality of moral claims that we can make on political authority (Connolly 2005) and the ongoing democratic contestation that those rights are a part of (Honig 2009); this involves moving away from Ronald Dworkin's influential notion of rights as trumps (Dworkin 1978) to a conception of rights as ethico-political claims that make and remake both the institutions of political authority and the contours of the political community.

³See Reinbold (2011) for an examination of the history of the UDHR that understands the core idea of dignity as a founding myth that justifies the political practice of human rights. In contrast, Morsink (1984) offers a more conventional philosophy of human, which is importantly linked to how we understand the history of the UDHR. Moyn (2010) focuses on the distinctive nature of international human rights, in contrast to previous moral universalisms, natural rights, and constitutional rights. The key point is that that no historical study of the UDHR is innocent; what we find, and how we understand what we find, depends on what we think human rights are to begin with.

⁴I am not making the claim that any of the drafters were themselves thinking agonistically about human rights, and certainly not in the specific terms I outline here—though some were clearly more attentive to the partial and contestable nature of the human rights projects than historical readings influenced by a legislative conception of human rights fully appreciate. The claim I am making is that attending to the details of the drafting process helps us understand the contestation at the heart of the human rights project, which can be recovered by thinking about rights in agonistic terms.

⁵The most successful and historical of these studies is Lauren (2003). A less historically compelling study with an emphasis on the continuity of moral universalism and human rights is Ishay (2008).

⁶Exemplars of this approach include Moyn (2010), Hunt (2008), Morsink (1999), and Wasserstrom et al. (2007).

⁷Moyn (2010), for example focuses on the distinctive challenge to state sovereignty that becomes central to human rights thinking from the 1970s onward and therefore emphasis the development of human rights in the late twentieth century.

⁸Lauren's The Evolution of International Human Rights (2003) is the most comprehensive and convincing statement of this position.

⁹This account is made in compelling fashion in Moyn's The Last Utopia: Human Rights in History (2010).

¹⁰Also, see Philpott (2007: 17–37) and C. Brown (2002: 19–56).

¹¹It is this reading that leads Moyn to argue that human rights do not come into their own until the end of the twentieth century (2010: 173–175), as a truly international human rights regime must necessarily be opposed to the dominance of state sovereignty as a principle of international order.

¹²Also see Afshari (2007: 9–35), although he is keen to point out these domestic and single-issue rights movements were qualitatively different from the idea of human rights. On the development of women's rights, see Fraser (1999).

¹³This process is very well illustrated in Hunt's analysis of the case of the French Declaration of the Rights of Man.

¹⁴Also, the American Law Institute published its work as Lewis and Ellingston (1946).

¹⁵This account has served to establish Humphrey's vital role in the drafting in contradiction of Cassin's own assertions that he was the chief author.

¹⁶This connection is made most strongly by Cassin and Hernán Santa Cruz of Chile (Drafting Committee 1947e).

¹⁷For a detailed account of the drafting process, see Morsink (1999: 4–35).

¹⁸Charles Malik was the youngest member of the Commission on Human Rights and was a novice in diplomatic matters, having only recently been selected as the representative for Lebanon—leaving his previous position as a philosophy professor. While Malik was a Christian, he also strongly identified as an Arab and was particularly concerned with the special threats faced by small states in an international society dominated by powerful states and imperial powers. Educated in the United States and Germany, he completed his PhD under the supervision of Martin Heidegger and Alfred North Whitehead. While he was a strong supporter of human rights and an opponent of Soviet communism, he was not a conventional liberal or Westernized elite; he remained committed to Arab independence and saw himself as a fundamentally religious thinker. For more on Malik's biography and thoughts, see Joe Hoover, “Remembering Charles H. Malik,” (2011).

¹⁹“Obviously, the very phrase means that man in his own essence has certain rights; that therefore, what we are going to elaborate must answer to the nature and essence of man. Therefore, it must not be accidental. It certainly must not be changing with time and place. The Bill of Rights must define the nature and essence of man. It will reflect what we regard human nature to be” (Malik 2000: 58). In particular, he was keen to emphasize that he was not defending an atomistic or presocial individualism, but rather he was concerned with preserving the dignity of persons in light of the power of social and political orders. “It can be shown that as the masses rose, man, humanity necessarily declined. When you become an atom in a massive ocean of identically like atoms, without structure, without distinction, without ontological differentiation of function, then you lose your sense of essential inalienable human individuality. The international work of human rights and fundamental freedoms is a faint effort to recover this lost individuality, to the end that the individual person should realize his own natural dignity, namely the rights and liberties with which he, as a man is endowed by nature” (Malik 2000: 135).

²⁰Peng-Chun Chang was originally an educator, playwright, and literary critic, who earned a doctorate at Columbia University under the supervision of John Dewey. He was involved in the fight against Japan after they invaded China in 1937 and it was during and after the war that he was recruited to the Chinese diplomatic service, first as a spokesperson charged with disseminating information on Japanese atrocities, then later as an ambassador to Turkey and Chile. He was known to be a strong advocate of Chinese culture, keenly interested in cross-cultural dialogue and a committed secularist. Like Malik, he was concerned to establish greater equality between states and was deeply affected by Western and Japanese dominance of China. For further details see Glendon (2006: 33, 132–133). More extensive background on Chang can be found in R. Cheng and S. Cheng (1995).

²¹René Cassin was a secular French Jew who had served as a soldier in WWI before studying law. WWII interrupted his career as a professor of law when he went to England to join De Gaulle's resistance and served as the general's chief legal advisor. His support of human rights was influenced by the murder of many family members by the Nazis and his conviction that the French rights tradition, focused on the equal legal standing of all citizens, should be expanded to the international levels. See Glendon (2006: 61–64). Further details can be found in Agi (1988).

²²The tenor of liberal or “Western” political thought at this time was very different than what we associate with later forms of philosophical liberalism or political and economic neoliberalism. The UNESCO (1948) survey on human rights illustrates this broader intellectual background well, as does the collection on human rights from the American Law Institute (Lewis and Ellingston 1946).

²³Koretsky, for example, attempted to reopen debate on this point in the Drafting Committee even after the Commission on Human Rights decided that a binding document could be proposed, though it would subject to state ratification. His intervention on this point goes on for 30 pages of the transcript (Drafting Committee 1947a).

²⁴Dukes made his position clear in the meeting on January 31, 1947 (UN Commission on Human Rights 1947b), and Wilson gives his support for a binding convention in the meeting on June 12, 1947 (Drafting Committee 1947a).

²⁵The debates and votes over the issue are carried out in across the 10th, 11th, and 12th meetings of the Commission on Human Rights (UN Commission on Human Rights 1947c, 1947d).

²⁶In contrast to Moyn's claim that the human rights project was stillborn in 1948, I would suggest that this analysis highlights the fact that the human rights that state actors were willing to accept and which rights advocates were able to pressure states to accept were different and far more minimal than the reinvigorated account of human rights that emerged in the 1980s and 1990s.

²⁷“I think we must insist upon this fact: that we must finally reach the fusion of the idea of man as a community and man as an individual. There may be important intermediate stages, such as the existence of the state, but I think there is not one state in the world which does not at present recognize the necessity for the observance of human rights” (UN Commission on Human Rights 1947b).

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Notes on contributors

Joe Hoover

Joe Hoover is a lecturer in the Department of International Politics at City University London. His research focuses on global ethics and international political theory, particularly the importance of human rights in world politics, both in international law and global social movements. He has published work in International Theory, Human Rights Review, The Journal of Intervention and Statebuilding, International Affairs, Millennium: Journal of International Studies, and The Journal of Critical Globalisation Studies.