Why Was There No League of Nations Universal Declaration of Human Rights?
This is the seventh in a series of essays I wrote as an undergraduate, honours, and then masters student in political theory. This one is from my masters year, 1991–92, and is presented here almost unchanged.
Respect for human rights is widely seen today as the measure of a state’s moral standing. States which persistently deny their citizens these rights are condemned by bodies ranging from the United Nations to Amnesty International. For both these organisations, and for many governments, groups, and individuals around the world, the gauge by which respect for rights is measured is the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948.
The Declaration has, accordingly, become a focus of scholarly attention. Its claim to universality has been questioned, its influence explored, and its origins traced. Rights scholars trace those origins on the one hand to its great eighteenth century antecedents—the American Declaration of Independence of 1776 and Bill of Rights of 1791, and the 1789 French Declaration of the Rights of Man—and on the other hand to the tumult of the early twentieth century:
The reasons for the twentieth-century movement to create human-rights institutions are not hard to discern. The atrocities of two world wars provided the impetus for establishing machinery to enforce human rights standards.1
As with histories of the United Nations in general, mention is made in such studies of the role played by its predecessor, the League of Nations. Although the League’s encounters with the issue of the protection of human rights were limited and few, some see it as having “laid the foundation for the development of lasting human-rights institutions”.2
Such observations raise some important questions. Why did the League of Nations not declare an interest in human rights as unequivocally as did the UN? What differences were there between League and UN attitudes to human rights? Why was recognition of “equal and inalienable rights” as “the foundation of freedom, justice and peace in the world” obvious to the UN but not to the League?3
The answers shed light on a stage in the development of concepts of rights little considered today. They show that the transition from the declarations of the eighteenth century to the Universal Declaration was not as straightforward as we might now think, and that even the Declaration itself holds a different significance for us than it did in 1948.
Proposals for a “league of nations” predate the First World War: a league was discussed in pacifist circles during the early twentieth century as a possible means of fending off that impending conflict. The concept itself goes at least as far back as 1795, when Immanuel Kant proposed a “federation of free states” as a necessary means towards achieving perpetual peace.4 Kant’s vision, says liberal writer Robert Keohane, “clearly presages the international organisations of the twentieth century”.5
The League had many “founders”, notable among them such international political figures as Sir Edward (Viscount) Grey of Britain, but in the words of a contemporary, “by far the most potent and effective single exponent of the League idea” was United States President Woodrow Wilson; his first speech on the subject, delivered on 27 May 1916, “made a marked impression on the statesmen and people of the world”.6 Wilson remained the key figure in the League movement until its establishment.7
In a speech made before he became President, Wilson outlined a grand vision for the world:
My dream is that as the years go by ... the world ... will turn to America for those moral inspirations which lie at the basis of all freedom ... [and that] all shall know that she puts human rights above all other rights, and that her flag is the flag not only of America, but humanity.8
His early statements on the League idea continued along such lines. The League, as he saw it, “shall safeguard right as the first and most fundamental interest of all peoples and government”.9 It was “to guarantee peace and justice throughout the world”.10
Such language from the League’s foremost exponent suggests that it was originally conceived as more than a body aimed solely at the prevention of war between states. An examination of the views of other League proponents supports this impression. In France, an influential conservative group, the “League of the Rights of Man”, proposed (on 3 November 1917) the formation of an international body to settle disputes, any member state of which must have “obligated itself to respect the rights of peoples that form part of it, or to re-establish such rights if already taken away”.11 Another important figure, President of the French “Association for a Society of Nations” Léon Bourgeois, argued that there be international institutions to define law and apply it. A contemporary outlined his arguments thus:
The rights of individuals within the State are secured by the Constitution of the State. If this guarantee is to be real we must have common rules of justice for all nations. “There can be no peace without order and there can be no order without justice”.12
This last argument, in particular, strongly prefigures post-World War Two human rights language. But Bourgeois qualified his argument in a significant way: he denied “any intention of setting up a super-State which may affect sovereignty and curtail the liberty of its members [i.e. member states]”.13 This qualification lies at the heart of the League’s founders’ failure to arrive at a conception of universal human rights standards as we think of them today; first and foremost, the chief concern of the day was for the rights of nations, not individuals.
In 1939, Edward Carr wrote:
The French Revolution ... raised the issue of the rights of man. Its demand for equality was a demand for equality between individuals. In the nineteenth century, this demand was transformed into a demand for equality between social groups. ... Before 1914 the demand for equality was already beginning in Western Europe to pass over from the issue of equality between classes to that of equality between nations.14
The abandonment of the language of individual rights was so widespread that the English philosopher F. H. Bradley was able to write in 1894 that
the rights of the individual are today not worth serious criticism ... the welfare of the community is the end and the ultimate standard. And over its members the right of its moral organism is absolute. Its duty and its right is to dispose of these members as it seems best.15
Such language was a response to both Marx and Darwin: the former’s concentration on class struggle, and the latter’s evolutionary doctrine of the “survival of the fittest” transferred to human society. In this new logical framework the individual was easily lost to view. In contemporary literature discussing the League proposals and its later functioning, the language of individual rights is rarely to be seen, if at all.16
Although not clearly spelled out, the reasons for this oversight are implicit in many writings about the League. F. H. Hinsley in 1963 described the League’s founders’ thinking as so:
All men envisaged a league of states, not a union of nations; and the central question in war-time discussion was how far sovereign states should accept restrictions on their freedom.17
The answer arrived at was “not very far”. Viscount Grey considered it “essential” that “the Governments and peoples of the states willing to found [the League] understand clearly that it will impose some limitation upon the national action of each”;18 a typical critic replied that “in so far as such limitation demands the actual subjection of a strong nation to the will of the rest, I do not believe we are ready for it”.19 The latter view carried the day. The League was not to be a world government with authority over all others; it was, wrote one observer in 1924,
to secure agreement not to enforce decisions; to help what is good in the nations to assert itself, not to compel the nations to be good.20
The League was an agreement between states to attempt to impose a greater degree of order upon the international sphere than had existed. The rights of individuals were largely seen as no part of that international sphere. Individuals’ rights were secured by their state; and in so far as they were affected by the international sphere, their rights were protected by the protection of that state’s rights.
Such was the prevalence of this view that the vague dreams of people such as Wilson of rights to be enjoyed by all humanity quickly gave way to pragmatic reality. As a contemporary put it,
Mr. Wilson modified his position in respect of more than one feature of the League after turning over the project in his mind, and, later, when he came to take up the problem of the actual structure and functions of the League.21
By the end of the War Wilson was explaining to the United States Senate that he was proposing
the doctrine of President Monroe as the doctrine of the world—that no nation should seek to extend its policy over any other nation or people, but that every nation should be left free to determine its policy, its own way of development.22
Wilson’s proposal echoed the fifth of Kant’s “Preliminary Articles of a Perpetual Peace Between States”:
‘No state shall forcibly interfere in the constitution and government of another state.’ For what could justify such interference? Surely not any sense of scandal or offence which a state arouses in the subjects of another state. It should rather serve as a warning to others ...23
The clash between state sovereignty and the status of the individual became particularly clear during the meetings in 1919 of the Commission formed to draw up the League Covenant. The Japanese delegate, Baron Makino, proposed an additional clause (for an Article that President Wilson had been sponsoring which proclaimed the “inviolability of the human conscience and the exercise of religion”) which read:
The equality of nations being a basic principle of the League of Nations, the High Contracting Parties agree to accord, as soon as possible, to all alien nationals of States members of the League, equal and just treatment in every respect, making no distinction, either in law or fact, on account of their race or nationality.24
Despite being far from a recognition of the universal equality associated with human rights, this proposal was too “controversial” for most of those present, and the entire Article was dropped. Makino’s later proposal to insert an “endorsement of the equality of Nations and the just treatment of Nationals” in the Covenant’s preamble failed to achieve the necessary unanimous approval, and also was not adopted.25
The response to the latter proposal of the British delegate Lord Robert Cecil is illuminating. Although he personally favoured it, his government thought the solution of the racial question “could not be attempted by the Commission without encroaching upon the sovereignty of States members of the League”. Furthermore, the proposal “opened the door to serious controversy and to interference in the domestic affairs of States”.26 Finally, Cecil “thought it better that the Covenant should be silent on these questions of right. Silence would avoid much discussion.”27
The United States rejected the proposal for the similar reason that it would raise the race issue throughout the world (most uncomfortably for them, of course, in the USA).28 Australia even more bluntly opposed the proposal on its own merits (that is, that it would afford alien nationals equal rights). As its selectively xenophobic Prime Minister, Billy Hughes, had argued before the Imperial War Cabinet on 26 November 1918:
You have Japan and China, which are desirous that their people should be allowed to settle in Australia. ... The question would then be taken to the League of Nations. By what right can five million people usurp territory that would feed 100 million? You have no moral right at all. Therefore, they come in. But whilst Australia had a leg to stand on she would fight ...29
One aspect of the debate over the rejected Article concerning religious liberty illustrates another reason for the scant attention paid by the League to the issue of individual rights. The anxieties of President Wilson over the issue of religious liberty, said one delegate, “related to countries which were not members of the actual League”.30
The League of Nations was not conceived as a League of all nations. It was, as prefigured by Léon Bourgeois, to be “established only between nations which are free”.31 Wilson, similarly, proposed the exclusion of Germany until it had become a democracy, a policy which was to have
a considerable influence upon European history. In German minds, above all, it was to assume symbolic importance, for it involved the question of status, of equality with other nations.32
The logic behind the League’s restrictive membership stemmed, as ultimately did so many aspects of the League, from Kant. Kant’s “First Definitive Article of a Perpetual Peace” was that every state should be republican, founded upon freedom, a single common legislation, and legal equality for everyone;33 and although not every member of the League corresponded precisely to Kant’s ideals, they certainly saw fit to exclude (at its inception, at least) states which clearly did not.34 Thus the issue of individual rights became largely superfluous. There was no need for the League to proclaim “human rights”, as only those states that respected them (so the subconscious logic went) would be members of the League in the first place.
The members of the League hoped to be a good example to non-members, thereby promoting a world-wide respect for “freedom”, if only indirectly. The League did to an extent, however, allow for its guarantee in the “less civilised” nations. They did so primarily in the case of the League of Nations Mandates.
The mandates were colonies seized from Germany and its allies during World War One, most of them in Africa and the South Pacific. Their rule was entrusted (individually) to various League members; their inhabitants were, however, able to bring grievances against their new masters before the League Council. Thus, says a modern scholar,
for the first time some nation states became regularly accountable [to] an international body for mistreatment of individuals subject to their rule.35
This was certainly an important step. It was not, however, one made with recognition of universal rights in mind.36 Rather, the mandate system reflected a degree of international paternalism which seems outrageous today:
It is surely but mischievous folly to ... [place] the savage in a position to choose for himself. It is not our domination that is wrong—such domination is in the law of nature, and even more necessary to the undeveloped races than it is profitable to us.37
And, as another League proponent wrote in 1912:
A great tribunal ... may well, in course of time, be empowered to pass upon the question of conditions in backward countries.38
The right of mandate inhabitants to bring grievances before the League Council was intended not for the protection of their rights but to ensure that the mandate rulers were doing a proper job of civilising the “children” in their charge:
Still more disastrous would it be to employ anything in the nature of cajolery or persuasion in our dealings with them. Those who understand children know how fatal are such methods in dealing with them; infant nations are similar in their requirements.39
One of the few “individual rights” issues to attract the League’s attention was that of slavery, first put before the League in 1922. A New Zealand delegate, Sir Arthur Steel-Maitland, “asked the Assembly to recognise that this was a matter for the League, as representing humanity”.40 Particularly of concern was Abyssinia (Ethiopia), where slavery continued despite the best efforts of its Regent (later the Emperor Haile Selassie). Indeed, Britain, thinking (again) to keep the League a body of free states,
had been most reluctant to admit Abyssinia to membership, because of the slavery and slave-trading that went on there.41
In 1926, the League drew up a Convention to combat the problem, and in 1934 instituted a Committee to further consider means of eliminating the institutions of slavery. The League Secretariat considered these to have had good results.42 The ratification of the convention, however, was at the discretion of each state; the Convention was not a mechanism for ensuring the universal recognition of an individual’s right not to be held in slavery.
A greater problem confronting the League at its inception was that of minorities living in European states. A former director of its Minorities Questions Section, de Azcárate, wrote about the League’s dealings with the issue:
[The aim of] the protection of minorities instituted by the treaties of 1919 and 1920, whose application was entrusted to the League of Nations ... was not humanitarian, but purely political. The object [was to avoid] inter-state frictions.43
Those treaties did contain, de Azcárate noted, “an interesting precedent for any future international ‘bill of rights’”:
The signatory state guaranteed to all its inhabitants full protection of life and liberty, and recognised that they were entitled to the free exercise, whether public or private, of all creeds, religions or beliefs whose practices were not inconsistent with public order or public morals.44
The Minorities Treaties, however, applied only to a limited number of countries, and furthermore “were guaranteed by the League of Nations only in so far as they affected members of such a minority”.45 De Azcárate, in 1945, recognised that this meant that “essential rights of a universal character” could not be widely enforced, and arrived at two possible explanations for this anomaly, the second of which—that “the authorities of the states placed under the obligation were considered more likely than those of the other states to perpetrate such attacks”46—appears the more likely to be true, in light of the attitudes discussed so far.
Even here, where the concept of individual rights (if not for all) was clearly enunciated by the League, that concept took a back-seat to states’ sovereignty. The League Council moved only with painful caution:
In view of the general postulate of State sovereignty, which applies indiscriminately to States with obligations to minorities and to all other States, the Council must, of course, take care not to give States of the former class the impression that it is interfering in their internal affairs. ... The Council must, for example, be specifically careful to satisfy itself that petitions from discontented minorities or individuals are not really intended, or indirectly likely, to stir up trouble.47
Modern rights scholar Antonio Cassese has highlighted one malcontent who managed to satisfy these conditions. Franz Bernheim, a German Jew, who lived in (German) Upper Silesia (protected under the German-Polish Treaty of 1922), complained to the Council in 1933 about German practices of racial discrimination against Jews. Germany countered that Bernheim, who had only lived in Upper Silesia for two years, was not a proper member of a Silesian minority. A Committee ultimately found Germany in the wrong, but the Council satisfied itself with accepting German claims that its laws had been “misconstrued” by subordinate authorities, and “decided to adopt a report inviting Germany to bring the violations to an end”.48
The Polish delegate, however, took a firmer stand. During the debate he said that although the Council was only able to deal with the fate of Jews in Upper Silesia, “all members of the Council had, however, at least a moral right to make a pressing appeal to the German Government to ensure equal treatment for the Jews in Germany”. He concluded that “a minimum of rights must be guaranteed to every human being, whatever his race, religion or mother tongue”;49 Cassese notes that “these words may today seem obvious, but at the time they caused a sensation”.50
Given the formidable collective opinion in favour of avoiding any infringements of state sovereignty which was extant throughout the first three decades of the twentieth century, the surprise is perhaps not that there was no League of Nations Universal Declaration of Human Rights, but that world opinion had changed so decisively in favour of one only a few years later. It is not true that the League’s Covenant contained nothing which we would today recognise as predecessors of one or two elements of a Declaration,51 but it is incontrovertible that nothing approaching a comprehensive declaration of Human Rights was even considered by the League’s founders.
What changed? The answer appears obvious: the behaviour of several states, but in particular Nazi Germany, forced the world community to acknowledge that “turning a blind eye” was not an adequate response to persistent violations of rights. As the interwar years passed, the failure of the League to satisfactorily achieve its major aim—the maintenance of peace between nations—became obvious enough; but the League’s failure in other areas, and the importance of those areas, also became obvious. In the debate concerning Jews in Upper Silesia mentioned above, the Polish delegate concluded that “the present system for protecting minorities has all the defects of an inadequate system”.52 A few months later the League confronted the issue head-on. The Assembly’s VIth Committee
had a very lively debate on a question of principle: whether in every modern civil state all citizens ought to enjoy equal treatment both in law and in fact. Most states replied in the affirmative; only one delegation (the German one) stated instead that a sovereign state had the right to regard such an issue as a domestic matter.53
France proposed that the minority treaties be interpreted to mean that “minorities within a [treaty] state were protected even if they were not on the territory designated specifically in the treaties”, and that states not signatories to such treaties had in principle to treat their minorities at least as well as the Minorities Treaties required. Germany rejected the proposal (which therefore did not pass) on 11 October 1933, three days before Hitler announced Germany’s withdrawal from the League.54
Early in the war which raged throughout Europe after such diplomacy had been exhausted, the US President, Franklin D. Roosevelt, advocated in his annual message to Congress “four freedoms”: freedom of speech, freedom of worship, freedom from want, and freedom from fear.55 This was “not just a programme outlined by the leader of one of the Great Powers for its future action on the world scene; it was also posited as a point of reference for action by other states”.56 These “four freedoms” were included by Roosevelt and Churchill in the Atlantic Charter of 14 August 1941, along with the need for self-determination, economic progress, and social security.57
The idea began to emerge that
one significant cause of the war lay in Hitler’s contempt for human rights and freedoms. If, then, a repetition of such a catastrophe were to be avoided, there would have to be an awareness of the importance of the interdependence of peace and human rights ...58
Jewish associations, as they learned of Nazi concentration camps, searched for ways to “prevent a relapse into such barbarism”; and the writings of French political philosopher Jacques Maritain, who developed a programme for a rights-based post-war world, had, observes Cassese, “a vast influence both in Europe and in the United States”.59
By the end of World War Two, therefore, one of the most important tasks facing the new United Nations was what Churchill called “the enthronement of human rights”.60 Although it referred to human rights in only the most general terms,
the UN Charter was the first international agreement in which the countries of the world made a commitment to promote human rights at the international level.61
Some at the April 1945 conference which drafted the Charter called for an additional Declaration to define those rights more precisely. The drafters decided not to provide one, however, “to ensure that the scope of rights protected by the UN be expansive ... to allow the concept to evolve”.62 They also feared that attempting to draft such a Declaration in the short time then available might result in a less than satisfactory document, considering that value conflicts were already surfacing in the debate over what constituted “fundamental human rights”.
The Charter did, however, set up a UN Commission on Human Rights, and it fell to this Commission to arrive at an “International Bill of Rights”. Since the time of the drafting of the Charter, opinion had swung behind the actual enforcement of rights:
At [the Commission’s] second session, in 1947, the expectation was that [a Bill of Rights] would include a declaration, a convention on human rights, and methods of implementation.63
Thus, the limitation of state sovereignty in favour of international individual rights was seriously being contemplated for the first time. Significantly, these proposals arose at the same time as the relationship between the individual and the international sphere was being redefined by another important event in this testing of post-war morality: the trials at Nuremberg of German war criminals.
The decisions of the International Military Tribunal at Nuremberg, and the question of the legality of its powers, set international lawyers writing for years afterwards. Of key interest here is the question of whether individuals can be held criminally responsible under international law. The Tribunal held that they could. As one law scholar, Robert Woetzel, wrote in the 1950s,
In recent times the basic structure of international society has changed ... so that international law is no longer exclusively concerned with relations between states, but also in certain cases with relations between individuals and states and among individuals, when they are of international concern.64
The implications for the human rights debate are clear: if individuals do have a place in the international sphere, they might reasonably expect some international concern for their enjoyment of rights. Some lawyers criticized the Tribunal’s judgement, however, “on the ground that international law applied only to states, while national law applied to individuals”. The modern view of international law, Woetzel added, “has not yet been generally recognised”.65
Perhaps more significant, however, were the Tribunal’s dealings with the issues raised by Count Four of the charges against the defendants, dealing with “Crimes Against Humanity”:
It charged as crimes murder, extermination, and “persecution on political, racial or religious grounds,” whether committed “before or during the war,” just so long as such acts were undertaken or executed in connection with other acts “under the jurisdiction of the Tribunal.”66
The latter qualification forced the Tribunal to rule that some pre-war Nazi acts, terrible though they were, were outside its jurisdiction. But it was able to rule on “crimes against humanity” committed from 1939 to 1945.
This led the Tribunal into new territory. Long-standing war crimes conventions allowed for the prosecution of the nationals of one country (in this case Germany) who committed such acts against the nationals of another country. But
a completely different legal situation exists with the so-called crimes against humanity perpetrated by the German Government against its own citizens. ... The prosecution of such acts has traditionally been left to the authorities of the nation whose citizens have been so abused.67
Criticisms of Count Four along these lines were defended against by those who drafted it by
pointing to the murderous farce that the exemption of policy makers and sovereigns had made out of international law. ... Only by imposing responsibility on government leaders, responsibility backed by the force of punitive international law, could peaceful human life be possible.68
Furthermore, they claimed this conclusion was not an innovation:
Law was not simply produced by treaties and statutes ... it took shape through the customary usage and belief of the “civilised” people of the world. By 1945, mass murder of civilians had thereby evolved into an international crime.69
Of the seventeen defendants charged under Count Four, only two were acquitted. One could, then, regard the Nuremberg Trials, in part, as the first case of the lawful enforcement of international human rights. Members of the German government had committed “crimes against humanity”—they had severely violated the rights of German citizens—and for that (and for many other things, of course) they were punished.70
In this atmosphere, then, the UN Commission on Human Rights began to draft its Declaration. But it quickly ran into a major difficulty: the UN’s members could not easily reach agreement over what constituted “universal human rights”. The Western countries set the agenda; the Latin American countries vigorously promoted the cause, sometimes going further than the West were willing to accept; the Moslem countries “expressed reservations dictated by Moslem cultural tradition regarding religion and family life”. Finally came the “unified, intransigent group from Socialist Europe”, forming the other side in what basically became an East versus West confrontation and, in Cassese’s view, “an aspect of the cold war”.71 The Socialists mistrusted the very concept of human rights, as they considered that in communist society, in which “the complete integration of the individual and community has been achieved”, human rights were “superfluous”.72 Their stated belief (if not their actual belief) was that all rights were recognised in their countries. Given this, however, they began to see the Declaration as an opportunity to force upon the Western countries other rights which they considered important. Thus the Declaration became a mix of Western-derived “civil and political rights” (as the Commission referred to the rights in the first twenty articles) and Eastern “economic and social rights” (as the rest became known), and the right to own property sat alongside the right to equal pay for equal work.
The USSR’s belief in its own respect for human rights was brought into question when it fell back on the familiar argument that state sovereignty took precedence over the international enforcement of human rights. When Britain, India and Australia put forward proposals to make violations subject to international law, the Soviet representative “protested that it was ‘premature’ to discuss any measure of a binding and judicial nature. The USSR was willing to support a Bill of Rights, but only a ‘Bill’ understood as a manifesto of rights”.73 The Socialist countries “maintained that human rights ought to be conceived in such a way as to make them compatible with state sovereignty”.74
As a result, the Universal Declaration of Human Rights of 1948 did not fulfil wartime dreams of the creation of a practical mechanism for ensuring international respect for a fundamental set of human rights. It was not the international equivalent of the United States Bill of Rights. The advance on the position of the League of Nations was therefore far less than it could have been, advance though it was.75
But “even the General Assembly was not satisfied with this pious utterance”,76 and the Commission was instructed in 1948 to produce “a draft convention on human rights and draft measures of implementation”.77 From that point the process of producing what ultimately became two International Covenants on human rights slowed down. More members of the Commission began to protest that machinery to enforce human rights “would tend to undermine the sovereignty and independence of states”.78
The International Covenants on, respectively, Civil and Political Rights (ICCPR) and Economic, Social, and Cultural Rights (ICESCR) were passed by the General Assembly in 1966, but it was ten years before both had received the required thirty-five ratifications to enter into force.79 Furthermore, an Optional Protocol to the ICCPR allowing individuals to complain of state violations of their rights directly to the Human Rights Committee (a permanent juridical body set up by the Commission) had by 1986 been ratified by only 38 states.80 And, of course, only those states which ratify either Covenant or the Optional Protocol are subject to the enforcement mechanisms they provide for the protection of individual rights.
The fact is, however, that (even if gradually) more and more countries are ratifying the Covenants; and it may be too early to say that a plateau has been reached. We can, therefore, view the years since World War Two as a period of evolving international opinion on the issue of universal rights, during which, increasingly, the world has been learning to accept the limitation of state sovereignty in favour of the enforcement of rights—exactly that which the League’s founders could not believe was feasible. The Universal Declaration of 1948, though of no practical use in providing for such enforcement, has acted as a “lodestar”, as Antonio Cassese puts it, and has even, many now think, become legally binding “as part of customary international law”.81 Most importantly,
the Declaration is one of the fundamental parameters with which the international community delegitimizes states. A state that systematically tramples the Declaration under foot is not regarded as worthy of approval by the world community.82
That community consists not only of states, but of non-government organisations, such as Amnesty International,83 and of the individuals who form those states. The Universal Declaration and the events which inspired it have placed the issue of individual rights before the public eye to an extent that would have amazed the founders of the League of Nations,84 so that today, when a government persecutes its people, the world decries its “violation of their rights”, and many (though still far from all) ask why the world’s governments do not act to stop it.
The concept of universal human rights has been widely accepted. An important step has been made. The journey, however, is far from complete. We have yet to show that the rights proclaimed in the Universal Declaration are the right ones. Until we can demonstrate that an Amazonian Indian (or, for that matter, a white-collar worker in the West) is fundamentally entitled to “periodic holidays with pay” (to mention but one of its provisions), we cannot consider the Universal Declaration to be the final word on basic and universal human rights.
March 1992, posted December 2012
1. Alison Dundes Renteln, International Human Rights: Universalism versus Relativism, Frontiers of Anthropology Volume 6 (Newbury Park, California, and London, 1990), pp. 17-18.
2. Ibid., p. 19.
3. Universal Declaration of Human Rights, preamble.
4. Immanuel Kant, ‘Perpetual Peace: A Philosophical Sketch’, in Kant’s Political Writings, edited by Hans Reiss, translated by H. B. Nisbet, Cambridge Studies in the History and Theory of Politics (Cambridge, 1970), pp. 93-130.
5. Robert O. Keohane, ‘International Liberalism Reconsidered’, in The Economic Limits to Modern Politics, edited by John Dunn (Cambridge, 1990), pp. 165-94 (p. 180).
6. Theodore Marburg, Development of the League of Nations Idea: Documents and Correspondence of Theodore Marburg, edited by John H. Latané, 2 vols (New York, 1932), II, p. 763.
7. The United States, however, did not join the new League of Nations. Historian George Scott assigns much of the blame for this to Wilson’s intransigence:
If Woodrow Wilson had not become President of the United States in 1916, there might never have been a League of Nations at all. ... Yet, paradoxically, if Woodrow Wilson had not been President, the United States might have accepted the Treaty of Versailles and joined the League. Quite simply, Woodrow Wilson put people’s back’s up.
[George Scott, The Rise and Fall of the League of Nations (London, 1973), pp. 38-39.]
8. Quoted in Edward H. Carr, The Twenty Years’ Crisis 1919-1939: An Introduction to the Study of International Relations, second edition (London, 1946), p. 234. Carr calls this a “vision of [U.S.] world supremacy”, but to infer a simplistic nationalism on Wilson’s part is unfair. Wilson naturally spoke (on Independence Day 1914) in American terms, but he was speaking for the world supremacy of human rights which America happened to enjoy, not for the world supremacy of America.
9. Speech delivered 27 May 1916, quoted in Marburg, Development of League Idea, p. 764.
10. Speech delivered 23 January 1917, quoted in ibid.
11. Ibid., p. 769.
12. Ibid., p. 771.
13. Ibid., p. 770.
14. Carr, Twenty Years’ Crisis, pp. 226-27. Although this is the 1946 second edition, Carr kept the text largely as it was written for the 1939 first edition.
15. Quoted in Maurice Cranston, What Are Human Rights? (London, 1973), p. 3.
16. It is significant that the previously cited World War One references to rights in the League debate come from France and the United States, the homes of the eighteenth-century rights declarations, where one would expect individual rights to remain more in the public mind.
17. F. H. Hinsley, Power and the Pursuit of Peace: Theory and Practice in the History of Relations Between States (Cambridge, 1963), p. 145.
18. Quoted in M. D. Petre, ‘“The Mandate of Humanity”’, in James Walker and M. D. Petre, State Morality and a League of Nations (London, 1919), pp. 67-121 (p. 115).
19. Petre, ‘Mandate’, p. 116.
20. H. W. V. Temperley, quoted in Hinsley, Power and Peace, p. 149.
21. Marburg, Development of the League Idea, p. 765.
22. Quoted in James Walker, ‘A League of Nations’, in Walker and Petre, State Morality, pp. 11-63 (p. 43). Walker comments:
It may be assumed, from the implications involved in his decisions, that the right of intervention by the League would be asserted in all internal disputes that threaten to have a disruptive effect upon the general relations of the League. [p. 44.]
Even if this was Wilson’s view, the League failed to put it into effect.
23. Kant, ‘Perpetual Peace’, p. 96.
24. Quoted in David H. Miller, The Drafting of the Covenant, 2 vols (New York and London, 1928), II, p. 324.
25. Quoted in ibid., p. 389. The vote for the proposal was eleven out of seventeen in favour; Wilson said that “no one could dream of interpreting the vote which had just been taken as condemnation of the principle proposed by the Japanese Delegation” (ibid., p. 392).
26. Quoted in ibid., p. 389.
27. Quoted in ibid., p. 392.
28. The Japanese claim was just, wrote an American observer in a private letter, but “was it not best for the United States to avoid raising, for the time being, a question with the individual States of the Union [i.e. states of the USA] which would have brought so many difficulties in its train?” [Marburg to Jonkheer van Beek en Donk, 15 August 1919, in Marburg, Development of the League Idea, p. 651.]
29. Quoted in Scott, Rise and Fall of the League, pp. 27-28. Australia’s attitudes towards Asian immigration have long since changed: immigrants from Hong Kong today [i.e. 1992] outnumber any other group in the annual intake. But similar fears probably exist in the subconscious of every Western nation, in an age of increasing restriction of immigration. The world’s attitudes towards mass migration may yet be put to the test if the Greenhouse Effect does its worst and, for example, millions of Bangladeshis are flooded out of their country.
30. Larnaude, quoted in Miller, Drafting of the Covenant, p. 323.
31. Quoted in Marburg, Development of the League Idea, p. 772.
32. Scott, Rise and Fall, p. 22.
33. Kant, ‘Perpetual Peace’, p. 99.
34. Over the life of the League this policy did to a degree lose its sway, and gradually countries in Asia, Africa and Latin America were admitted, as were the former European enemies of the allied nations. But the rules for vetting potential League members remained restrictive enough to prompt Argentina to vacate its seat in protest from 1926 to 1933 [Scott, Rise and Fall, p. 74]; and as late as 1934, the prospect of Russia’s admission drew protests that the country failed to permit “freedom of worship” [ibid., p. 312]. Notably, the Council of the League maintained a predominantly European membership.
35. H. Tolley Jr., 1982, quoted in Renteln, International Human Rights, p. 19.
36. Under Article 23(b) of the Covenant the colonial powers did also undertake to “secure just treatment of the native inhabitants of territories under their control” (i.e. their previous colonies). The wide possible interpretation of “just treatment”, however, meant that neither was this a guarantee of specific universal rights. [See Scott, Rise and Fall, pp. 407-18, for a reproduction of the League of Nations Covenant.]
37. Petre, ‘Mandate’, p. 118.
38. Marburg, Development of League Idea, p. 842.
39. Petre, ‘Mandate’, pp. 118-19.
40. Secretariat of the League of Nations, The Aims, Methods and Activity of the League of Nations (Geneva, 1935), p. 167.
41. Scott, Rise and Fall, p. 177.
42. Secretariat, Aims of the League, p. 168.
43. P. de Azcárate, League of Nations and National Minorities: An Experiment, translated by Eileen E. Brooke, Studies in the Administration of International Law and Organisation (Washington, 1945), p. 14.
44. Ibid., p. 58. Emphasis in original.
46. Ibid., p. 59. The first possible explanation was “that attacks on life, liberty or freedom of conscience of the inhabitants of states which did not have to accept this obligation (among them all the so-called Great Powers) were considered less important than those which might have been made on the inhabitants of states subject to the obligations of the Minority Treaties”.
47. Secretariat, Aims of the League, p. 116. The Council was so “specially careful” that
of some four hundred petitions so far received (excluding the very large number from Upper Silesia), about half have been held to be non-receivable. Only fifteen of the remainder were brought before the Council.
Committees took care of the rest, making “courteous representations” to governments, which were reckoned “likely to be received in a conciliatory spirit”. The Council itself acted “in much the same spirit. ... On several occasions its conciliatory action has admittedly had a beneficiary effect”. [Ibid., p. 118.]
48. Antonio Cassese, Human Rights in a Changing World (Cambridge, 1990), p. 20.
49. Count Raczynski, quoted in ibid., p. 19.
51. Probably the closest to such an element in the Covenant was Article 23 (a):
[The Members of the League] will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations.
[See Scott, Rise and Fall, p. 417.]
52. Raczynski, quoted in Cassese, Human Rights, p. 19.
53. Ibid., p. 20.
54. Ibid., pp. 20-21.
55. Renteln, International Human Rights, p. 20. Roosevelt’s message was delivered in January 1941. Again, note that this initiative came from an American President (see note 16).
56. Cassese, Human Rights, p. 30.
57. Renteln, International Human Rights, p. 20.
58. Cassese, Human Rights, p. 29.
59. Ibid., p. 30.
60. Cranston, What Are Human Rights?, p. 3.
61. Renteln, International Human Rights, p. 21.
63. Ibid., p. 27.
64. Robert K. Woetzel, The Nuremberg Trials in International Law with a Postlude on the Eichmann Case, revised edition (New York and London, 1962), p. 97.
65. Ibid., p. 100.
66. Bradley F. Smith, Reaching Judgment at Nuremberg (New York, 1977), p.14.
67. Woetzel, Nuremberg Trials, p. 177. My emphasis added.
68. Smith, Judgment at Nuremberg, p. 15.
70. One interesting point is that the Tribunal “did not consider in the sentence of any defendant two very important charges contained in the prosecution indictment, namely aerial and submarine warfare. The court appears to have been convinced that German practices did not differ very substantially from Allied actions in these areas” [Woetzel, Nuremberg Trails, p. 176]. That is, the Tribunal pragmatically decided not to raise the issue of prosecuting Allied “war criminals”, such as those who ordered the bombing of Dresden. This is not exactly surprising, but it prompts the observation that an Allied leader responsible for “crimes against humanity” was similarly overlooked: Josef Stalin. The Tribunal’s role as a “defender of rights” was thus, one might conclude, a carefully limited one.
71. Cassese, Human Rights, pp. 33-34.
72. Ibid., p. 32.
73. Cranston, What Are Human Rights?, p. 53. Even then, the USSR abstained from the Assembly vote which led to the Declaration’s adoption on 10 December 1948 [ibid., p. 54]. This, however, may have been because by then it had moved to a position of supporting a Declaration which included mechanisms for implementation (which by then were off the agenda) as the best way to force the West to accept the economic and social rights it was now proposing. [See Cassese, Human Rights, p. 36.]
74. Cassese, Human Rights, p. 37. These difficulties of disagreement between states over human rights arose in part, one could say, from the fact that the UN was and is not in keeping with Kant’s model of a “federation of free states”; as Keohane says, “most members of the United Nations would qualify as despotisms by Kant’s criteria” [Keohane, ‘Liberalism’, p. 180]. But in the world as it exists today (and did in 1945), no organisations with all countries as members could hope to satisfy Kant’s criteria. Indeed, the task of drawing up a Universal Declaration of Human Rights would be considerably less pressing in Kant’s ideal federation, as all its members would (being free “republics”) be able to keep themselves in line (cf. my earlier discussion of the League of Nations’ restriction of its membership).
75. Judge Lauterpächt of the International Court of Justice at the Hague observed in 1950 that “the people whose rights were best protected were those who lived in the Trust Territories of the United Nations, because they had the opportunity to appeal ... to the Trusteeship Council of the United Nations is they believed that their rights had been violated” [Cranston, What Are Human Rights?, p. 51]. (Cf. the position of the mandates under the League of Nations; indeed, most of the Trust Territories were simply the mandates renamed.)
76. Ibid., p. 55.
77. UN General Assembly Annexes, quoted in ibid.
79. Renteln, International Human Rights, p. 33. The ICCPR received 106 votes for, none against; the ICESCR received 105 votes for, none against. As of 1986, the ICCPR had received 81 ratifications, and the ICESCR had received 85 (out of approximately 150 UN member countries).
80. Ibid., p. 35. Cranston describes how this right of individuals (or non-government organisations) to complain to the Human Rights Committee was rejected for the Covenants themselves by a majority of the Commission on Human Rights: “the United Kingdom argued that if the right of petition were extended to individuals it would be abused”; others “made much of the consideration ... that the right of petition would be abused by frivolous, crankish, or litigious persons suffering from persecution mania” [Cranston, What Are Human Rights?, p. 57]. They settled instead on a procedure whereby states could complain the the HRC about other states—a procedure hardly used, for the obvious reason that states are reluctant to “risk diplomatic crises by raising controversial human-rights issues” [Renteln, International Human Rights, p. 35].
81. Ibid., p. 29.
82. Cassese, Human Rights, p. 47 [emphasis in original]. As this international approval often becomes a precondition for inter-country grants of economic and other aid, the Declaration does effectively have its own de facto enforcement mechanism. The Guatemalan government, for example, has been reported to have
launched an all-out effort to persuade the international community that the country’s human rights record has improved. ... The issue has become a foreign policy priority. A government study leaked recently found that human rights violations were the main reason for a sharp drop in foreign aid.
[Mike Reid, ‘Threat of Human Rights Blacklist Sets Guatemala Polishing Image’, Guardian, 15 February 1992, p. 8.] Unfortunately, this de facto enforcement mechanism holds no fear for countries not reliant on aid.
83. Indeed, Amnesty was originally formed in 1961 as a response, indirectly, to the UN’s lack (as there was then) of any method of enforcing respect for human rights by the world’s governments.
84. One clearly critical event in raising public awareness of the issue of universal rights in the post-war world was the Holocaust. As one philosopher has said, “the Holocaust must be grasped as a genuinely transformational event. ... We must never again subscribe to the myth that ... the ‘mores’ of a particular culture can provide an adequate justification for whatever practices that culture may engage in”. [Alan Rosenberg, ‘The Philosophical Implications of the Holocaust’, in Perspectives on the Holocaust, edited by Randolph L. Braham, Holocaust Studies Series (Boston, 1983), pp. 1-18 (p. 15).]
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