David Weissbrodt, Joan Fitzpatrick & Frank Newman ...



David Weissbrodt, Joan Fitzpatrick, and Frank Newman, International Human Rights—Law, Policy, and Process (3d ed. 2001)

Supplement to Chapter 1: Introduction to International Human Rights (August 2002)[1]

We would like to comment on several items relating to the history of the development of international human rights that have come to our attention since the publication of the third edition.

A. The Development of the Universal Declaration of Human Rights. [2]

On October 24, 1945, the UN Charter went into effect. Chapter X of the Charter created the Economic and Social Council (“ECOSOC”). One of its powers was to “make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. (U.N. Charter, Art. 62(2).)

In April and May 1946, at the appointment of the ECOSOC, a nine-person nuclear committee met to make recommendations on the structure and functions of a future UN Commission on Human Rights (“the Commission”). Chaired by Eleanor Roosevelt of the USA, it recommended that the first project of the Commission should be the writing of a bill of rights. (Glendon at 30-32.)

In June 1946, the Commission was established. Its permanent members were from the Great Powers (USA, Soviet Union, United Kingdom, France and China) while thirteen members were selected for three-year terms (Australia, Belgium, Byelorussia, Chile, Egypt, India, Iran, Lebanon, Panama, Philippines, Ukraine, Uruguay and Yugoslavia). (Glendon at 32.)

In January-February 1947, the Commission held its first meeting, elected Mrs. Roosevelt its Chair and appointed a Drafting Committee to prepare a draft of the international bill of rights. (Glendon at 32-46.)

The Drafting Committee was also chaired by Mrs. Roosevelt. Its other members were Charles Malik (Lebanon), Rene Cassin (France), Peng-chun Chang (China), Colonel William Roy Hodgson (Australia), Hernan Santa Cruz (Chile), Geoffrey Wilson (United Kingdom) and Vladimir Koretsky (Soviet Union). (Glendon at 45-49.)

The Drafting Committee was supported by the ECOSOC’s John Humphrey, a Canadian international lawyer. (Glendon at 43, 45-47) His staff studied all of the world’s existing constitutions and rights instruments as well as suggestions from all over the world and distilled their common core concepts in order to prepare a draft of the international bill of human rights. Humphrey was particularly impressed by the draft of a Pan American declaration of human rights then under consideration and by the 1944 Statement of Essential Human Rights produced by the American Law Institute. The ALI’s Statement was based, in part, on consultations with experts from Arabic, British, Canadian, Chinese, French, pre-Nazi German, Italian, Indian, Latin American, Polish, Soviet Russian and Spanish counties and cultures. (Glendon at 56-58.) Humphrey’s initial draft contained extensive annotations to existing rights instruments. (Glendon at 58.)

Corroborating Humphrey’s work was a Committee on the Theoretical Bases of Human Rights that had been appointed by the United Nations Educational, Scientific, and Cultural Organization (“UNESCO”). Its chair was E. H. Carr, a Cambridge University historian, and the committee included Richard McKeon, a University of Chicago philosopher, and Jacques Maritain, a French social philosopher. It distributed a questionnaire to statesmen and scholars around the world. It received 70 responses from American, European and socialist points of view as well as from China, India and Muslim sources. (Glendon at 51, 73-78.) Bengali Muslim poet and philosopher Humayin Kabir stated:

“Early Islam had ‘succeeded in overcoming distinction of race and color to an extent experienced neither before nor since.’ In the world today . . ., ‘[t]he first and most significant consideration in the framing any charter of human rights

. . . is that it must be on a global scale . . . . Days of closed systems of divergent civilizations and, therefore, of divergent conceptions of human rights are gone for good.’” (Glendon at 74.)

Within the Drafting Committee, changes were made primarily at the suggestion of M. Cassin, who added a preamble and restructured the draft, but very few substantive changes. (Glendon at 63-69.) The main features of the Declaration were in place by the end of June 1947. (Glendon at 72.) In December 1947, the Commission on Human Rights preliminarily approved a revised draft, 13-0, with four abstentions (Soviet Union, Byelorussia, Ukraine and Yugoslavia). (Glendon at 79-98.) In June 1948, the Commission gave its final approval to the draft of the Declaration, 12-0, for consideration by the ESC. (Glendon at 99-121.)

In August 1948, ECOSOC was unable to approve the draft of the Declaration. Instead, it unanimously voted to forward the draft to the General Assembly’s Third Committee, which had delegates from every UN member state. (Glendon at 23-30, 136.)

After much debate, on December 7, 1948, the Third Committee unanimously approved the draft for submission to the General Assembly with seven abstentions (the Soviet bloc and Canada). (Glendon at 139-63.) One of the main points of debate was the Soviet Union’s complaint that the draft lacked sufficient regard for national sovereignty. (Glendon at 141.) Another main point was whether specific parts (marriage and religious freedom) were based largely on Western concepts at variance with culture in other parts of the world. Saudi Arabia was a major spokesman taking the affirmative on this issue. (Glendon at 141.) In response, Chang (China) and Santa Cruz (Chile) argued that everyone had to see things from another’s standpoint and that the document was meant for all people; this position received some support from delegates from nations with large Islamic populations. (Glendon at 142.)

On December 9, 1948, the General Assembly unanimously approved 23 of the 30 articles of the Declaration. There were negative votes on the nondiscrimination article (one vote), the article on the family (six votes) and the article on freedom of expression and opinion (seven votes) as well as some abstentions on articles 1 and 2. Then the Declaration as a whole was adopted, 48-0 with 8 abstentions (Soviet bloc, South Africa and Saudia Arabia). (Glendon at 163-71.)

During the General Assembly debate, the Foreign Minister of Pakistan (then the UN member with the largest Muslim population) and head of its UN delegation, Muhammad Zafrulla Khan, stated that the article on religious freedom

“’involved the honor of Islam.’ He cited a passage from the Koran for the proposition that faith could not have an obligatory character: ‘Let him who chooses to believe, believe, and him who chooses to disbelieve, disbelieve. . . .’

Islam was a proselytizing religion that strove to persuade others to change their faith and to alter their way of living. . . . The freedom to change beliefs . . . was consistent with the Islamic religion.” (Glendon at 168.)

The Declaration was also defended by the Syrian representative as “the achievement of generations of human beings.” (Glendon at 168.)

B. Statement by the President of the Islamic Republic of Iran, H.E. Mohammad Khatami, at the Episcopal Cathedral of St. John the Divine, New York City, November 13, 2001.[3]

Two months after September 11th, President Khatami, an Islamic cleric, participated in a conversation at New York’s Episcopal Cathedral of St. John the Divine, an event significant in itself. After criticizing “terrorists who concoct weapons out of religion” and before saying that the “house of God adopts architecturally different shapes and different plans . . . and [has] various names in various languages,” President Khatami said:

“The eruption of two catastrophic world wars has amply demonstrated that purely materialistic concerns cannot suffice in laying the foundation for human rights. The discourse of human rights is apparently a secular discourse with no eventual connection with a religious outlook. However, for those familiar with the deeper layers of religious reason and understanding, it is clear that the concept of human rights is both ontologically and historically rooted in religious thoughts. We should free human rights from the bounds of diplomatic negotiations and regard it as a discourse for defending human life, dignity and culture. In doing so we ought to realize its deep religious aspect. Christian, Jewish, Muslim, as well as thinkers from other divine traditions, can collaborate on this important issue.” [4]

C. Michael Ignatieff, The Attack on Human Rights. [5]

According to Ignatieff, there are three challenges to the universality of human rights. One is from Islamic thinkers. Another is from some Western radical, post-modern scholars who say human rights are attempt by West to mask its will in impartial universal language of human rights. The third challenge is from East Asian societies and economies which prior to 1997 were pursing an apparently successful different way of economic development.

As the above summary of Professor Glendon’s book about the Universal Declaration of Human Rights points outs, however, and as Ignatieff recognizes, many traditions, not just Western ones, participated in the drafting of the Universal Declaration of Human Rights and based it on moral universals from many different religions and traditions. (The threat of vetoes by communist countries prevented the Declaration from mentioning God.) Moreover, the Declaration was not a proclamation of the superiority of Western civilization, but a warning to the world not to repeat the mistakes of the West, especially the idolatry of the nation-state, and to recapture the natural law tradition.

The Declaration’s moral individualism, Ignatieff continues, comes out of Western civilization, but rights are meaningful only if they confer entitlements and immunities on individuals to be enforced against institutions like the family, the state and the church. Rights cannot be translated into a nonindividualistic, communitarian framework. It is precisely this individualism that makes human rights attractive to non-Western peoples and explains why the fight for these rights has become a global movement.

Human rights is a revolutionary creed, Ignatieff argues, because they make a demand that all human groups serve the interests of those who compose them. Thus, groups should be, as much as possible, consensual so that an individual has the right to leave the group when the latter’s constraints become unbearable.

Human rights, according to Ignatieff, do not require adopting Western ways of life or delegitimize traditional culture. These rights are “negative” rights, the freedom “from” certain restraints, leaving the individual to choose what makes the good life. Human rights becomes the shared vocabulary from which differing ideas of human good can take root.

D. Other Recent Books Regarding the History of International Human Rights.

We also note three recent books that relate to the history of international human rights: J. Laber, The Courage of Strangers: Coming of Age with the Human Rights Movement (Public Affairs); A. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford Univ. Press); W. Schulz, In Our Own Best Interest: How Defending Human Rights Benefits Us All (Beacon 2001, 2002).

In reviewing these books, Professor Ignatieff acknowledges the successes of international humans rights. But he then asserts that with the existence of stateless societies like Somalia, “there is now the additional need to create states strong enough to protect their citizens.” In such situations, he asks, what is the role of human rights organizations? “[W]hat weapons will work?” If they cannot take part in such situations, he argues, these organizations will “be consigned to irrelevance.” [6]

Following that idea, with asserted justifications of supposed budgetary limits or national self-interest, some governments have even begun to undermine the great importance of international law, human rights, and international organizations that has been painstakingly built over the past half-century. In their practice and in their statements, some governments have begun to use terrorism and the anti-terrorist measures of other nations as excuses for widespread and serious violations.

But now, more than ever, human rights law and procedures need to be strengthened and used. Human rights advocates must reaffirm the nearly universal commitment to human rights treaties and particularly humanitarian law obligations. We should recall that the Geneva Conventions and the International Bill of Human Rights arose from the terrible violence of World War II. The framers of the U.N. Charter, the International Bill of Human Rights, and the Geneva Conventions did not believe that human rights and humanitarian law were applicable only in times of peace and order. They recognized that the only way to achieve peace is through respect for human rights. If we discard those bulwarks to our rights every time there is violence, human rights will have little value. In the justified effort to condemn and oppose terrorism, we need to assure that human rights protections are still guaranteed.

10/15/2002

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[1] The authors would like to thank Duane W. Krohnke, a Minneapolis attorney and Adjunct Professor at the University of Minnesota Law School for assistance in preparing this and further Supplements. Professor Fitzpatrick did not, however, have any responsibility for the contents of this and further Supplements.

[2] This section is based on A World Made New—Eleanor Roosevelt and the Universal Declaration of Human Rights by Professor Mary Ann Glendon (2001). The page citations in the text are to Glendon’s book. This section is also relevant to the issue of cultural relativism (Chapter 15 (F)(1), at 896-900.)

[3] The full text of President Khatami’s statement at an Interfaith Conversation, “Dialogue Among Civilizations,” was available at . A copy can be obtained from World Conference on Religion and Peace, Religions for Peace, 777 United Nations Plaza, New York, NY 10017.

[4] Among the resources regarding Islam and human rights are the Universal Islamic Declaration of Human Rights (ISLAMDEC.html) and “Human Rights in Islam” (Institute of Islamic Information and Education). These resources and President Khatami’s statement are also relevant to the issue of cultural relativism (Chapter 15 (F)(1), at 896-900.)

[5] The above is a summary of the article The Attack on Human Rights by Michael Ignatieff in Foreign Affairs, Nov.-Dec. 2001, at 102, which is also relevant to the issue of cultural relativisim. (Chapter 15 (F)(1), at. 896-900.) The article is adapted from Michael Ignatieff, Human Rights as Politics and Idolatry (2001). He is the Director of the Carr Center for Human Rights at the Kennedy School of Government at Harvard University.

[6] Michael Ignatieff, The Rights Stuff, The New York Review of Books, June 13, 2002. at 18.

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