06 Nov The Universal Declaration of Human Rights [and Duties]
Many people don’t realize how close the modern law of human rights came to becoming a law of human rights and human duties. The first article of the first draft of the Universal Declaration of Human Rights, prepared by former McGill law professor John Humphrey, first director of the UN Human Rights Division, stated: “Everyone owes a duty to his State and to the [international society] United Nations. He must accept his just share of responsibility for the performance of such social duties and the share of such common sacrifices as may contribute to the common good.” Latin American delegations pressed the negotiators to adopt a list of duties like those that they were simultaneously preparing to include in the American Declaration.
But the delegates charged with negotiating the Universal Declaration decided against listing duties, because they saw the danger that governments might rely on such duties to limit human rights in unpredictable, unacceptable ways. The American Declaration includes duties “to obey the law and other legitimate commands of the authorities of his country,” and “to render whatever civil and military service his country may require for its defense and preservation.” Which should prevail, in a conflict between such duties and human rights to expression, association, religion, and political participation? Listing duties along with rights could suggest that in case of conflict, they should simply be balanced against one another. The vertical duties owed by states to respect individuals’ rights could be offset by the converse vertical duties owed by individuals to states. If adopted, this approach would have hamstrung human rights law at its inception.
Of course, deciding not to list duties in the UDHR did not mean that individuals had no duties at all. The negotiators acknowledged in Article 29(1) that “Everyone has duties to the community . . . .” Nor did they take the absolutist view that every right must outweigh every duty. Instead, they focused on finding language that best expressed the idea that rights could be limited only by certain interests. Humphrey’s original draft had said that the exercise of rights is limited by the “just requirements of the State.” But the delegates decided that this language left too much discretion to the state to decide what those “just requirements” might be. Benigno Aquino, the Philippine representative, spoke for many in pointing out that since the definition of the requirements of a State “would lie with that State, it could . . . annul individual rights and freedoms contained in the Declaration.” Similarly, the Mexican representative emphasized that the effect of such language “would be to permit the State to impose such limitations as it pleased upon the rights and freedoms of the individual.” (The quotes are from Johannes Morsink’s The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999), the most complete history of the negotiation.)
The final language was adopted as Article 29(2): “In the exercise of his rights and freedoms, everyone shall be subject only to such restrictions as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” This language turned out to be only a first, rough-draft effort to find the balance between human duties and human rights. The negotiators and interpreters of later human rights agreements developed more specific solutions in the years that followed, making clear that some rights could not be limited at all and others could be limited only under certain conditions. The end-result is a careful balance between rights and duties.
Nevertheless, as I wrote yesterday, from time to time proposals are again made to include private duties to society in the body of human rights law. Some, like the InterAction Council’s Universal Declaration of Responsibilities, are from well-meaning people who don’t seem to understand how their proposals would disrupt existing human rights law. The more pernicious proposals are from those who intend to do just that. In the early 1990s, I was the U.S. representative to the negotiation of a declaration on human rights defenders and, along with the other delegates, spent much of my time fending off Cuban proposals to list human rights defenders’ duties, such as duties to obey the law. The Cuban delegate was one Miguel Alfonso Martínez, who was later appointed to be the special rapporteur on human responsibilities. In that position, he drafted a declaration on human social responsibilities, full of duties owed by individuals to their societies. The intent underlying the declaration is clearly to provide a counterbalance to all those annoying human rights. It has received little attention within academia, but from 2003 to 2005, it was the subject of a series of extremely close votes within the UN, in which the least democratic countries uniformly supported it while more democratic countries overwhelmingly opposed it. In the end, the good guys managed, barely, to drop it from the agenda of the Commission. To my knowledge, it has not been raised at the Human Rights Council, although it seems only a matter of time before it returns.
OK, you say, using human rights law to set out converse vertical duties owed by individuals to governments isn’t so great. But what about horizontal duties owed by one private actor to another? Shouldn’t multinational corporations, for example, be bound by human rights law? For that, tune in tomorrow.
John, I think you are referring to the Humphrey Draft (the first draft of the Declaration). When René Cassin revised the Humphrey draft he took out references to duties because of fears that it implies a certain metaphysical and religious statement about the nature of man. Here is how Mary Ann Glendon describes the redrafting by Cassin in her book “A World Made New” (p. 68): The main difficulty in framing the introductory “General Principles,” Cassin later wrote, was “to find a formula that did not require the Commission to take sides on the nature of man and society, or to become immured in metaphysical controversies, notably the conflict among spiritual, rationalist, and materialist doctrines on the origin of human rights.” The introductory general principles in the Latin American draft, for example, would not do. They recited: “Duties of a juridical nature presuppose others of a moral nature which support them in principle and constitute their basis”; and, “Inasmuch as spiritual development is the supreme end of human existence and the highest expression thereof, it is the duty of man to serve that end with his strength and resources”; and, “Since moral conduct constitutes the noblest flowering of culture, it… Read more »
It might also be interesting to note that the UK government has recently launched an initiative to adopt a British Bill of Rights and Duties. The current Lord Chancellor, Jack Straw, had the opportunity to elaborate on that initiative in a recent speech here at Cambridge (see here for the video, here for the transcript).
Thankfully, this initiative is not meant to replace the UK Human Rights Act, and is mostly a product of political pressure on the government put by the opposition. I do think, however, that it shows rather well how the language of human duties can be used to potentially erode human rights, even in a strong and stable democracy such as the UK.
Roger, I am referring to the Humphrey draft, but it isn’t the case that the Cassin draft took out duties. At the risk of trying your patience, I’ll just quote from my article on duties: “In the summer of 1947, after Humphrey presented his draft to a small committee of the Human Rights Commission, the committee asked Professor René Cassin of France to redraft it. His first effort provided two alternative approaches to duties: [First alternative:] Article 3. Man is essentially social and has fundamental duties to his fellow-men. The rights of each are therefore limited by the rights of others. [Second alternative: Article 3.] As human beings cannot live and develop themselves without the help and support of society, each one owes to society fundamental duties which are: obedience to law, exercise of a useful activity, willing acceptance of obligations and sacrifices for the common good. Article 4. In the exercise of his rights, everyone is limited by the rights of others. The first alternative would simply refer to duties without specifying them, and also leave open their relationship with rights. The second alternative was more in line with the American Declaration and the Humphrey draft, in that it… Read more »
Roger,
One other brief point: the decision Cassin describes about dropping any references to the moral underpinnings of the rights to be included is sometimes traced back to the very first, informal meeting of the drafting committee, in Eleanor Roosevelt’s sitting room, at which Charles Malik, a Thomist from Lebanon, and P.C. Chang, a Chinese Confucian, got into an inconclusive wrangle over what human rights were based upon. It became clear to everyone early on that they would never be able to reach agreement on the rights if they had to agree first on what Cassin describes as “metaphysical controversies.”