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.