FROM THE GUEST EDITOR

What is the Universal Declaration?

Carl Wellman
Washington University

During this 50th anniversary year, it is appropriate for us as philosophers to reflect upon the significance the Universal Declaration of Human Rights had in 1948 and ask whether it has the same or a different import for us in 1998. The four articles that follow present knowledgeable and illuminating discussions of four aspects, limited to be sure, of this reflective enterprise. As background, I wish to pose a preliminary question: What kind of a document is the Universal Declaration?

It is, although those of us primarily interested in theory might forget this, a historical document. The General Assembly of the United Nations adopted the Universal Declaration of Human Rights on 10 December 1948. This locates it precisely at a crucial point in human history. But history is not a series of static moments; it is more like a flowing river or a network of merging and diverging streams. The Universal Declaration stands at the point where three streams in the history of Western civilization converge-the theory of natural law and natural rights, the development of international law, and the introduction of bills of rights into the constitutional law of the several nations.

As we in the United States read this document, we are reminded of our own Declaration of Independence of 1776. Here Locke's philosophy of natural rights is used to justify the American revolution against the king of England. Other less provincial readers will recall as quickly the French Declaration of the Rights of Man and of the Citizen of 1789, a document that reflects the philosophy of Rousseau as well as Locke. Their theories in turn owed much to the tradition running at least from the Stoic theory of natural law through Thomas Aquinas, William of Ockham, Grotius, Puffendorf and Hobbes.

It is no accident that Hugo Grotius was both one of the most influential philosophers in natural rights theory and one of the jurists most responsible for molding the modern international law, because the universality of natural law makes it an ideal grounding for a law that claims to impose obligations upon all nations, however different their particular cultures and traditions. Although the dominant conception of international law assumes that its subjects are nation states rather than individual persons, the protection of human beings has been introduced gradually. Grotius himself argued that it was permissible under international law for one nation to offer asylum to persons threatened with religious persecution in their own country. The Nuremberg Tribunals appealed to the category of crimes against humanity recognized in international law in order to legitimate many of its decisions.

Conceptions of natural law combined with practical politics to motivate the demand for the recognition of basic rights in constitutional law. These bills of rights include most notably the English Bill of Rights of 1688, the first ten Amendments to the United States Constitution ratified in 1791, the Declaration of the Rights of Man and of the Citizen prefixed to the French Constitution of the same year, Chapter Ten of the Soviet Union's Constitution of 1936, the 1949 Basic Law of the German Federal Republic, and Chapter Three of the 1954 Constitution of the People's Republic of China. Thus, there are three historical streams flowing into the Universal Declaration of Human Rights.

The immediate historical context of this document was, of course, the grossly immoral treatment of its citizens, especially Jews and Gypsies, by the Hitler regime in Nazi Germany and the vast destruction of life and property brought about by the Second World War. As early as 1941, President Roosevelt committed his administration to securing the four freedoms-freedom of speech, freedom of worship, freedom from want and freedom from fear-throughout the world. Then in 1942, Winston Churchill looked forward to the time "when this world's struggle ends with the enthronement of human rights."¹ Hence in its Charter, the United Nations proclaimed as one of its purposes "to achieve international co-operation...in promoting and encouraging respect for human rights and for fundamental freedoms...." The Universal Declaration was subsequently adopted pursuant to this purpose.

Fortunately nuclear war did not break out, the ultimate holocaust did not occur, and human history did not end in 1948. Hence, the Universal Declaration has spawned many later documents. Among the most important of these are the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Declaration on Elimination of Discrimination against Women, the Declaration of the Rights of the Child, and especially the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both opened for ratification in 1966. These in turn influenced regional attempts to protect human rights in Europe, Latin America, Africa and Asia.

The Universal Declaration of Human Rights is also a political document. The victorious Allied Powers, augmented and renamed the United Nations, resolved to constitute an international organization that would be more successful than the League of Nations in preserving world peace, protecting individuals from the arbitrary and abusive exercise of state power, ending oppression in the form of colonialism or apartheid, and sustaining economic and social development throughout the world. They conceived of the Universal Declaration as instrumental in achieving all of these political purposes.

It was drafted by the United Nations Commission on Human Rights, assisted by the UNESCO Committee on the Theoretical Bases of Human Rights and finally adopted by the General Assembly.² As one would expect, its formulation required a number of compromises between the interests and ideologies of the various states. This is most obvious in the way in which it includes both the civil and political rights proposed by the Western democracies and the economic and social rights advocated by the Socialist states. This compromise was possible because the USSR argued for basic political rights and the Western powers had already abandoned pure capitalism in favor of economic systems that supplement a market economy with welfare programs.

The Memorandum and Questionnaire Circulated by UNESCO on the Theoretical Bases of the Rights of Man makes it clear that the Universal Declaration is more a political than a philosophical document. It reads in part:

Meanwhile the immediate issue is clear. The world of man is at a critical stage in its political, social and economic evolution. If it is to proceed further on the path towards unity, it must develop a common set of ideals and principles. One of these is a common formulation of the rights of man. This common formulation must by some means reconcile the various divergent or opposing formulations now in existence.³

Given the radical and persistent philosophical disagreements concerning human rights, the formulation of any universal declaration, any document that could be accepted by all or almost all of the United Nations, required much political compromise.

Hence in The Grounds of an International Declaration of Human Rights issued in the light of replies to its Questionnaire, the UNESCO Committee reported:

For the purposes of present inquiry, the Committee did not explore the subtleties of interpretation of right, liberty and democracy. The members of the Committee found it possible to agree on working definitions of these terms, reserving for later examination the fashion in which their differences of interpretation will diversify their further definition. By a right they mean a condition of living without which, in any given historical stage of a society, men cannot give the best of themselves as active members of the community because they are deprived of the means to fulfil themselves as human beings. By liberty they mean more than only the absence of restraint. They mean also the positive organization of the social and economic conditions within which men can participate to a maximum as active members of the community at the highest level permitted by the material development of the society. This liberty can have meaning only under democratic conditions, for only in democracy is liberty set in that context of equality which makes it an opportunity for all men and not for some men only.⁴

Accordingly, in order to achieve its immediate political purposes, the United Nations at least postponed and probably abandoned forever any attempt to formulate an articulate philosophy of human rights.

Nevertheless, the Universal Declaration of Human Rights is a philosophical document. While there is no single coherent philosophical theory implicit in it, it does have some philosophical presuppositions. It assumes that human rights exist whether or not they are recognized, secured or enforced by the law or any other social institution. It does not, however, necessarily accept the epistemological or ontological presuppositions of traditional natural law theory; it makes no appeal to self-evidence or to any non-natural realm in which these rights exist. It assumes the universality of human rights. They are possessed by all human beings residing in every nation on earth. Whether they are assumed to be possessed universally throughout human history is unclear; many are formulated in terms of social institutions that have not existed until recently. The Declaration assumes that human rights are equal in the sense that they are possessed equally by all humans; the fact that one may have less intelligence, virtue or social status does not imply that one has any human right to a more limited extent or a lesser degree. Finally, it assumes that human rights are grounded in some unexplained way on the inherent dignity and worth of the human person.

The primary philosophical significance of the Universal Declaration lies in the philosophical problems it poses. These include the following: Is it a declaration of rights in any strict sense or only of social aspirations? Are all the rights it asserts genuine human rights? Do human rights imply duties, and if so, upon whom? What is the moral weight of human rights when balanced against other morally relevant considerations? Are human rights really universal or is this document merely a provincial expression of our Western philosophical and political tradition? What justifies the claim that any of these alleged human rights really exists? How can human rights be possessed equally by all persons when human beings are so unequal in their natural capacities, achievements, and social position?

Finally, the Universal Declaration of Human Rights is a legal document. The original intention of the United Nations was to formulate an international bill of human rights that would function in international law in much the same manner that, for example, the American Bill of Rights does in our constitutional law. But when it proved politically impossible to reach agreement on any list of human rights specific enough to impose determinate duties upon nations or to be justiciable in any international court of law, the drafting committee decided to formulate a declaration of universal principles concerning human rights, leaving their more precise legal definition until later. Thus, the Universal Declaration was adopted to provide the basis for an international bill of rights and to guide the framers of national constitutions. In 1948, it was not thought to have any legal force.

It has, however, gradually become recognized as a valid source of international law. There are two explanations, whether competing or supplementary remains debated, as to its legal authority. One holds that it is a specification of the human rights recognized in the United Nations Charter and thus derives its authority from the legal standing of this international treaty. The other maintains that it has been instrumental in bringing into existence generally accepted practices of civilized nations and thereby now has the status of a declaration of customary international law

It may be useful to locate the articles that follow against this background. Louis Henkin discusses the Universal Declaration primarily as a historical and political document during the cold war. James Nickel responds to the philosophical problems posed by the claim that the declared economic and social rights are rights in the strict sense. Susan Moller Okin examines the philosophical issue of how women's rights must be reconceived if they are to be genuine human rights and the political obstacles to doing so in a manner that will be effective in practice. And Carl Wellman speculates on how the Universal Declaration can be both a statement of moral philosophy and a legally valid document.

Notes

1. H. Lauterpacht, An International Bill of the Rights of Man (New York: Columbia University Press, 1945), 86.

2. Richard McKeon, "Philosophy and History in the Development of Human Rights," in Ethics and Social Justice, edited by Howard E. Kiefer and Milton K. Munitz, (Albany: State University of New York Press, 1968), 300-301.

3. UNESCO, Human Rights (New York: Columbia University Press, 1949), 255.

4. Ibid., 262-263.

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