In part I of this series I outlined an alternative analysis of human rights – one that focuses on rights as the institutionalisation of particular values and relationships, specifically as responses to the question of what obligations and privileges grant political authority legitimacy. This leads to a focus on the act of claiming rights as a way of reconstructing the social order. To clarify and develop this analysis of rights I look at the drafting of the Universal Declaration of Human Rights (UDHR), which is taken by supporters and critics alike as the foundational text of the international human rights regime. This historical inquiry is intended to achieve two ends: first, to clarify how an account of rights that takes contestation and ambiguity as inherent and productive aspects of the idea of human rights alters our understanding of the development of human rights; and second, to use two key conceptual debates that dominated the drafting of the UDHR to further develop my agonistic analysis of rights by illustrating the way that claiming human rights  generates contestation over the moral significance of humanity as a political identity and the reconstruction needed to produce a legitimate international/world politics.

Narratives of Consensus and Imposition

The fundamental debate over human rights has been, and continues to be, over whether human rights are universal or not. There are clearly identifiable camps on both sides of the issue – those convinced of the universality of human rights and anxious to move past such basic questions on one side, and on the other those who think human rights are a compromised project born of an assimilative Western universalism that is best overcome or abandoned – and these opposing views of human rights strongly affect how we understand their historical development. History does not speak for itself, this much we know, but the history of human rights in particular suffers from a lack of awareness – an awareness of how our understanding of what rights are and how they are justified affects our understanding of historical events.

In the paper presented at ISA I trace out these contrasting narratives more carefully, but the broad strokes can be made in terms of consensus and imposition. In the consensus narrative, the UDHR, and the post-WWII period more broadly, represent a moment of consensus in which a fundamental moral truth was discovered (or constructed), which affirmed a comprehensive list of rights possessed by all members of the human family and which served (and continues to serve) as an ideal we should strive to implement through reform of international politics. The counter narrative of imposition re-frames the consensus achieved in the UN General Assembly vote in 1948 as a moment of Western liberal imposition, suggesting that the victors of WWII declared the universality of liberal values and politics by fiat,i mposing them upon the rest of humanity.

This is a rather crude dichotomy, I know, but it captures an important element of debates over human rights – critic and supporter alike presume that human rights, in order to become what they aspire to be, must be based in certain and undeniable values that promise the transcendence of the political by the moral. While the critic may think this project is tragically doomed or, more radically, reject the desirability of such an approach to political ethics, the assumption is that human rights should be abandoned rather than reconstructed by developing an alternative account of rights.  I know I’m not alone in thinking that this impasse is unsatisfactory and for me the dissatisfaction is expressed in the difficulty one finds in taking the critique of human rights seriously while also supporting the positive work done with human rights as both an ideal and form of legal/political practice. Because we understand human rights as claims that require universal validation, when we ask question that require historical knowledge the answers we find reflect the presumptions about rights that we carry with us.

This implies that starting from an alternative understanding of what human rights are will change how we understand the history of human rights. I argue that in place of a narrative of consensus or imposition we can see the drafting of the UDHR as the start of a contest over the meaning of humanity as a political identity, and with that, also an opening up of the question of what a just international/world politics should look like. What this narrative does not suggest is that there’s a final resolution to be reached – a consensus that will determine the truth of such matters. Instead, the always political content of human rights claims is acknowledged and singular narratives of human rights progress (or regress) are rendered inadequate.

The Contested Meaning of Human Rights

If the argument thus far is accurate and persuasive, then it leads to the question: what are the important points of ambiguity and contestation in the drafting of the UDHR?

There are two conceptual aspects of the UDHR, which emerge from the debates that took place during the drafting, that I want to highlight. First, the debate over what justifies universality – which resulted an affirmation of human dignity in article 1 of the declaration; and, second, the political consequences of declaring international human rights – which resulted an an affirmation that declaring human rights required a transformation of international politics in article 28.

Article 1. All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Human dignity is the ambiguous idea at the centre of the UDHR. From the very beginning the difficulty of affirming a universal humanity without claiming a contested essentialism was obvious – Jacque Maritain, for example, claimed that human dignity was a concept everyone could consent to, so long as no one asked what it actually meant. Looking at the debates over human dignity that took place in the drafting committee, however, reveals not a vacuum but  an  excess of meaning, an account of humanity ambiguous in its over-fullness. While an agreement was achieved among the drafters, it was not because they agreed to affirm a vacuous notion of human dignity, but because an ambiguous and plural account of human dignity was sufficient for the practical challenge they faced – articulating a first statement on universal human rights as a response to horrific events in leading up to and culminating in WWII. To illustrate this, I will look briefly at three differing conceptions of human dignity offered by leading figure in the drafting process which have informed the UDHR.

Charles H. Malik (the representative from Lebanon), who I’ve written about before, viewed human dignity as fundamentally about the capacity for human beings to not only act freely but to use their freedom to change themselves as individuals and members of communities. He expressed this as a distinction between freedom of being and freedom of becoming. This understanding of what human dignity refers to is more open than a typical liberal affirmation of human autonomy, as it is more strongly democratic and expresses an openness to what human beings can become rather than trying to define what humanity is. Malik’s insistence that human rights should protect our capacity for creative change lead him to oppose many of the developments of the modern era; he feared the bureaucratic state, the industrialised economy, the prominence of universalising political ideologies and the isolation of individuals in modern society, feeling that these developments threatened the individual human being’s capacity to be the author of their own lives.

In drafting the UDHR, Malik was a supporter of both civil and political rights that protected individuals from the state and economic and social rights that could grant individual protection from the industrial economy – though he was strongly anti-Stalinist and suspicious of communism as a universalising ideology. He also was among the most ardent supporters of democratic rights and a  strong international system to uphold individual human rights and protect small states from powerful states with imperial ambition. Malik’s conviction that human rights should both protect individuals from the threats of modern society and enable the transformation of those conditions continues to resonate in the human rights project, but it also sound a more critical note, for example in his affirmation of rebellion and resistance to the state as fundamental to the protection of human freedom.

P.C. Chang (the representative from China), was a philosopher and playwright before becoming a diplomat, and among the most theoretically minded members of the drafting committee.* He understood human dignity as essentially about a shared capacity for conscience, which he expressed in terms of two-man mindedness. The idea of two-man mindedness implied sympathy as fellow feeling, but also something deeper and more demanding, what Chang described as ‘extending our consciousness to others.’ This involved both recognition of mutual duties between all human beings and a respect for the values of others, which he explicitly contrasted with the notion that human rights were simply about asserting the freedoms and rights of the individual. He highlighted that the consideration of human rights requires determining which social ties and obligations  exist internationally, bringing to the surface the very real danger of assimilation by powerful states and importance of empathy and respect, a respect that must go beyond toleration.

The practical consequences of this in the UDHR included recognition that individuals have obligations to the community and that states have a moral value to the degree that they give space for the free development of distinct ways of life. While Chang’s empahsis on rights and duties is lost to some degree in later human rights developments, it highlights a too often unappreciated aspect of human right – they establish new social relationships, usually between people and institutions separated by geographical and social distance, which makes Chang’s idea of stepping into the perspective of others even more relevant, if we are concerned to ensure that the social relationships that are developed and institutionalised as human rights are not assimilative. Chang’s great contribution is to remind us that humanity is not a single identity, but rather a plural one and to speak of human rights and obligations requires that we struggle to understand humanity in its plurality, and not reduce it to singular universalism.

René Cassin (the representative from France) was an international lawyer by training and his legal background allowed him to take a lead role in the writing of the UDHR.** His understanding of human dignity was essentially an internationalisation of the French rights tradition. Human rights, he thought, must be based in the shared legal personality of all human beings, and that the freedoms granted as human rights depended upon fraternity, upon the institutionalisation of reciprocal duties, between all people. In contrast to Malik’s emphasis on change/becoming and Chang’s insistence that we must struggle to see from the perspective of others, Cassin was insistent that human dignity required the affirmation of a common human identity. His view that there was a universal humanity, as a moral and political identity, served as a justification for a universal polity of some sort – while Cassin did not argue for a world state, he was among the very strongest supporters of a robust and independent UN that could protect human rights against the sovereign power of states.

Cassin’s understanding of human dignity is clearly the most familiar to contemporary accounts of human rights. Yet, even as his ideas may sound more familiar, they do highlight the radical nature of the challenge human rights present to conventional political authority. In the drafting process Cassin encountered resistance both from those representatives that were concerned to preserve state power as a guarantee of their own hegemony (the USA and USSR, most prominently) and those that saw state sovereignty not only as a threat to individuals but a form of protection against powerful states (this included South American, Asian and Middle Eastern states newly liberated from colonial rule).

Attending to the complexity and plurality of the debate over human dignity not only highlights strains of thought that are missing or under-emphasised in contemporary human rights thinking, but also that while there may be times when a continuity between contesting visions of human dignity is possible, this is not always or necessarily the case. Affirming a particular human identity produces remainders, as the account of humanity that we affirm risks rendering what is excluded non-human and unworthy, which is why a pluralist and agonistic orientation is so important, as it allows us to recognise, acknowledge and preserve that complex ambiguity, and leave space for further contests and articulations of what humanity means.

Article 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

The second key debate that occupied the drafters was the question of how human rights should alter the international political order. Clearly the political realities of the post-war period limited what the UN could achieve as an international institution, but my interest is in what the drafters thought the implications of human rights were, rather than whether their visions of reform were successful. This an important point to consider because history matters when we consider the prospects of human rights. Supporters tend to read the history of human rights as a progressive realisation of universal emancipation, while sceptics appeal to the supposedly timeless nature of international politics, with its absence of authority and always present threat of violence. (See Kimberly Hutchings’ Time and World Politics for an excellent discussion on such matters)

Both narratives depend upon the presumed necessity of particular ideals of international order, suggesting that a cosmopolitan potential was expressed in the early moments of the human rights regime, struggling for expression; or that the hope for a substantive human rights regime was a tragic impossibility precluded by the realities of the state system. Once again thinking in terms of contestation reveals different potentialities and ambiguities, it also emphasises that claiming human rights is a deeply political act that aims to restructure basic social relationships and institutions.

The various parties drafting the UDHR saw themselves as primarily responding to specific problems brought to the surface by the disruptive effects of WWII. And while there were some who embraced the opportunity to draft a bill of right as a way of participating in a grand narrative of human emancipation, they were largely relegated to activist and advisory positions, rather than acting as state representatives. And there were certainly voices echoing the old realist wisdom that state sovereignty was an unavoidable reality and, paradoxically, in need of protection – but again such views were not dominant in the actual drafting process, though clearly the US State Department exerted pressure on Eleanor Roosevelt to rein in her more internationalist impulses, and the USSR’s delegation was a confused mixture of stubborn statism and ideological grandstanding.

Attentiveness to the problem the drafters set for themselves is more revealing. Clearly European states, in particular France and Belgium (along with Australia), were expressing nascent desires for a more robust international order, aspiring to develop cosmopolitan institutions such as an international court of human rights that could remake a world that must have seemed utterly broken after half a century of destructive war. The victorious powers, especially the US and the USSR, were much more sceptical of using human rights to restructure the international system and each instead seemed more concerned with buttressing an international system, and creating a UN, that would enable them to maintain their power and promote their competing visions of world order, though each saw that human rights could serve these purposes. Finally, the group of smaller and newly liberated states were generally supportive of human rights and international institutions that could protect these newly declared rights (in particular Latin American states), but they were also concerned to preserve their hard-won independence through both moral appeals and legal means.

It is all too easy for human rights supporters to take such struggles over the institutionalisation of human rights as the unhappy victory of politics over morality – this reading of history enables a sense of moral superiority that pervades some human rights advocacy and a broadly European scholarly effort to enable and justify a more cosmopolitan world politics. But in fact, the differing visions of world order that were debated and unresolved in 1948 each contains its own moral ideals and none of them are innocent of politics, as the imposition of one’s will onto others. Like the human rights supporter, the realist also attempts to close down contestation over the meaning of human rights for international/world order – though in place of an appeal to a morally necessary transformation the realist appeals to the political impossibility of changing the structure of world politics. Both understandings depend upon not an ignorance of history but an unwillingness to think carefully about what human rights are, and can be, when mobilising history to their cause.

In the final post of this series I’ll offer a brief account of the democratising account of human rights that I support, in the process I will also consider the implications of adopting a pluralist and agonistic orientation to human rights for how we understand the place of those rights in political practice.

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*Peng-chun Chang was originally an educator, playwright and literary critic, who earned a doctorate at Columbia University under the supervision of John Dewey. He was involved in the fight against Japan after they invaded China in 1937 and it was during and after the war that he was recruited to the Chinese diplomatic service, first as a spokesperson charged with disseminating information Japanese atrocities, then later as a ambassador to Turkey and Chile. He was known to be a strong advocate of Chinese culture, keenly interested in cross-cultural dialogue and a committed secularist. Like Malik he was concerned to establish greater equality between states and was deeply effected by Western and Japanese dominance of China.

** René Cassin was a secular French Jew who had served as a soldier in WWI before studying law. WWII interrupted his career as a professor of law when he went to England to join De Gaulle’s resistance and served as the general’s chief legal advisor. His support of human rights was influenced by the murder of many family members by the Nazis and his conviction that the French rights tradition, focused on the equal legal standing of all citizens should to be expanded to the international levels.