A Non-Theoretical Justification of Human Rights:
A Response to David Little’s
The Right of Self-Defense
– Part I –
T. Jeremy Gunn
This is the first installment of a two-part essay responding to David Little’s analysis of self-defense as a foundation for human rights. In this first part, Jeremy Gunn challenges David Little’s premise that a justification for human rights must be rooted in an underlying moral, philosophical, or theoretical foundation. Rather, Gunn argues, the core of human rights standards were the product of negotiations and drafting compromises among states and their representatives. Subsequent to the adoption of human rights instruments, individuals, NGOs, and institutions such as the UN Human Rights Committee and the European Court of Human Rights have played an important role in developing and interpreting them. In the next part, using the Declaration of Independence and the Universal Declaration of Human Rights as examples, Gunn questions further the value of searching for theoretical foundations of human rights, arguing instead that human rights should better be understood as calls to conscience and to action.
David Little’s essay, “The Right of Self-Defense,” correctly recognizes that human rights are under mounting assault by dictatorial regimes at the same time that the foundations of human rights are being questioned within academe.1 I would even add that human rights are increasingly being undermined by many non-authoritarian states as well. With human rights under threat both by ill-intentioned autocrats and well-meaning academics, Little proposes an innovative intellectual justification — which he himself identifies as being “theoretical” — for human rights by evoking a rationale emerging from the longstanding and respected doctrine of self-defense. Little’s approach is interesting and is one to which others in this Canopy conversation are responding. I will respond to his proposal, however, not by engaging with the twists and turns of his argument, but by questioning what I perceive to be one of his underlying premises (perhaps a premise shared, mutatis mutandis, by academics such as Samuel Moyn and Eric Posner) with whom he takes issue (as do I).
Here, I suggest that human rights do not need, and have never needed, an underlying philosophical, theoretical, moral, religious, or ideological foundation. Scholars may wish to discover, invent, propose, or imagine justifying ideologies, but such endeavors are largely post hoc exercises. Simply put, and as uninspiring as it may sound, existing human rights norms are not based on sophisticated theories of human nature, Kantian deontological norms, coherent legal concepts, Enlightenment doctrines, or Western liberalism. Rather, they arose originally and principally from political negotiations and compromises among states. Human rights did not emerge from a profound consensus of philosophers (and certainly not from statesmen-philosophers), or out of the mind of a genius, but from smoke-filled rooms crowded with diplomats and political appointees. These diplomats negotiated, argued, compromised, evaded difficult questions, and sometimes deliberately obfuscated language when compromises on more precise language could not be reached. Bismarck’s analogy of legislation-making to sausage-making is not without merit when applied to treaty-drafting. In all cases, we place our hopes on the final products and not on the elegance of the methods that produced them.
In this paper, I reference in particular the mother of all human rights documents, the Universal Declaration of Human Rights (UDHR), though its drafting procedure is but one example of how human rights declarations, conventions, and treaties have been drafted (although happily the rooms in which they are prepared have largely ceased to be smoke-filled). The underlying modern concept of individual human rights as a part of public international law was, for practical purposes, first articulated in the UN Charter of 1945. The brief references to human rights in the Charter were drafted by state-appointed diplomats and political representatives, as later were the UDHR, the Genocide Convention, the Race Convention, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, as well as others. The basis of the human rights system, as a simple matter of fact, is that the documents were drafted by state representatives and came into existence by the votes (and ratifications) of a majority of states. Although some participants in the UDHR process were philosophers and scholars, including René Cassin, Peng-chun Chang, and Charles Malik, the final text was not adopted by a committee of philosophers or theologians who applauded its intellectual coherence, but by states, the representatives of which acknowledged that it had unresolvable flaws.
It goes without saying (though I hasten to say it to avoid the charge that I did not say it!): institutions and individuals who were not state representatives have played a crucial role in the shaping and elaboration of human rights. The most important interpretations and analyses of human rights have been produced by individuals (typically academics and jurists) who do not represent states. Human rights organizations play a significant and needed role in calling states to account. From my perspective, the two most important institutions to have elaborated (and to some extent enforced human rights) are not state institutions per se: the UN Human Rights Committee and the European Court of Human Rights. Although the members of these institutions and others like them do not represent states (as was the case in the drafting of human rights charters), states nevertheless continue to play an important, albeit indirect, role in appointing and operating such institutions. So although it should not be said that states are the only entities fundamental to the promotion of human rights, it should be acknowledged that they are the principal entities that established human rights standards. Human rights conventions, in short, are not the outcome of articulated philosophical norms, but of political realities.
One may wish to imagine or invent an underlying philosophical justification for the UDHR or any other human rights declaration, but the reality is rather more pedestrian. That said, the world has a great need for pedestrians. And that is where my own pedestrian reflections enter into the discussion.
A Theoretical Foundation of the UDHR?
Many statements issued by those involved in the UDHR drafting process acknowledge that the goal in preparing the text was to reach a practical consensus in identifying and describing rights rather than identifying philosophical origins or justifications for the rights. Perhaps the most famous statement in this regard was that made by the French theologian Jacques Maritain, who was himself not part of the drafting process, but who had been enlisted by UNESCO to compile the viewpoints of some of the world’s leading religious, intellectual, and political figures. Maritain thus worked contemporaneously and in parallel to the official UDHR drafting sessions that took place in New York, Paris, and Geneva. In his official introduction to the collected observations of the “wise men,” Maritain emphasized that, despite the thinkers’ vastly different philosophical viewpoints, they were able to reach something of consensus: “we agree about the rights but on condition that no one asks us why.”2 UNESCO, Human Rights: Comments and Interpretations, 1, U.N. Doc. UNESCO/PHS/3(rev.) (July 25, 1948) (emphasis in original).
Although Maritain played no role in the drafting of the UDHR and did not describe it, his observations neatly tracked those who were directly involved. From the beginning, Eleanor Roosevelt, the Chair of the UDHR Drafting Committee, said as early as May 3, 1948, “that little would be gained by a discussion of general principles, since this was not the time for theoretical conjecture.”3 U.N. ESCOR, 2nd Sess., 20th mtg. at 2, U.N. Doc. E/CN.4/AC.1/SR.20 (May 3, 1948). The time for theoretical conjecture never came. Later that year, Chilean delegate Hernán Santa Cruz observed that:
Tremendous difficulties had been involved in preparing a declaration of human rights which would meet the frequently divergent views of fifty-eight States. It had been necessary to reconcile the different ideologies of the Soviet Union and other Eastern European countries and of the other Members of the United Nations; the difference between the economic and social rights recognized by Christian Western civilization and those recognized by the Oriental civilization; the varying legal systems of Latin and Anglo-Saxon countries. It should not be forgotten that the draft declaration was a result of two years’ painstaking effort by several organs of the United Nations to reach a compromise, acceptable at least to the majority, of all those conflicting views.4 U.N. GAOR, 3d Sess., 91st mtg. at 49–50, U.N. Doc. A/C.3/SR.91 (Oct. 2, 1948).
Peng-chung Chang of China, a member of the Drafting Committee and a formidable intellectual, set aside his own intense philosophical interest in the “nature of man” and argued that the United Nations as a body should not be reaching conclusions on such philosophical matters and thought it best to avoid discussing the ideological basis of human rights.5 U.N. GAOR, 3d Sess., 98th mtg., U.N. Doc. A/C.3/SR.98 (Oct. 9, 1948). Agreeing with Chang’s opposition to a proposed amendment by Brazil to insert a reference to God in the text, Salomon Grumbach, a French representative to the UN General Assembly’s Third Committee, “respected the religious sentiments” that had inspired the Brazilian proposal, but argued that it should not be included because it was something on which “all representatives could not agree.”6 U.N. GAOR, 3d Sess., 99th mtg. at 116, U.N. Doc. A/C.3/SR.99 (Oct. 9, 1948). Referring to the same proposal, New Zealand’s representative favored the “reasonably satisfactory compromise” that avoided taking a position on a theological issue.7 Id. at 117.
Emile Saint-Lot, the Haitian representative who had served as the Rapporteur of the General Assembly’s Third Committee and who was one of the UN’s leading advocates for national independence movements, officially presented the Committee’s December 7, 1948 version to the General Assembly plenary on December 9, a short 24-hours before it was ultimately adopted. In officially presenting the completed draft document to the General Assembly, Saint-Lot offered a brief explanation of the drafting process in which he had been heavily involved:
After the war, at a time unpropitious for the success of such a venture, with rival ideologies confronting each other, the United Nations representatives had sought out, among old-established or recent political, economic, social and cultural rights, formulas which might be acceptable to men from the four corners of the earth. The text of the draft declaration represented a kind of common denominator for those various ideas. It was perhaps not perfect, but it was the greatest effort yet made by mankind to give society new legal and moral foundations; it thus marked a decisive stage in the process of uniting a divided world. Its authors had tried to make it simple, clear and easily intelligible both to the masses and to the élite.8 U.N. GAOR, 3d Sess., 180th plen. mtg. at 853–54, U.N. Doc. A/PV.180 (Dec. 9, 1948).
Other members of the Drafting Committee shared Saint-Lot’s assessment. Charles Malik of Lebanon, who had served as Chairman of the General Assembly’s Third Committee and Rapporteur for the Drafting Committee, reported that of the “29 articles of the present draft declaration, 18 had been adopted without any opposition,” and of the “1,233 individual votes, 88.08 per cent had been affirmative, 3.73 per cent negative and 8.19 per cent had been abstentions.”9 Id. at 860 Immediately thereafter, Eleanor Roosevelt, the Chair of two of the preparatory committees, added that the UDHR “represented, to a certain extent, a compromise . . .”10 Id. at 861. The document was “foremost a declaration of the basic principles to serve as a common standard for all nations.”11 Id. at 862. She explained that the document had been prepared simultaneously with the grave world crises that splintered the world and preoccupied the Security Council in 1947 and 1948, including the Greek civil war, the Chinese Civil War, the Berlin blockade and the Berlin Airlift, the Indonesian rebellion against the Netherlands, the conflict in Palestine, and the conflict between India and Pakistan regarding Kashmir as well as the beginning of the Cold War. Roosevelt found it remarkable that the “58 States, which had had so much difficulty in reaching a common basis of agreement in many other fields, should have found a large measure of agreement on the subject of human rights was proof of their desire to raise the standard of living of peoples and guarantee mankind greater freedom.”12 Id.
Santa Cruz, the Chilean delegate who had steadfastly promoted economic and cultural rights from the beginning, acknowledged that the UDHR was “not of course perfect.” Nevertheless, he noted, 58 countries “had succeeded in overcoming ideological and juridical differences and had agreed on a joint proclamation of human rights.”13 Id. at 863. Speaking to the General Assembly, René Cassin, who authored the first comprehensive version of what ultimately became the UDHR, “stressed that it was impossible to attain complete agreement on doctrine, but that an agreement based on the practical as well as the ideal could be achieved . . .”14 Id. at 865.
Alan Watt, Australia’s erstwhile ambassador to the Soviet Union was seconded to Paris to represent his country throughout the Third Committee meetings in the Palais de Chaillot. Speaking to the General Assembly plenary on December 10, Watt acknowledged that the states had “differed profoundly” with regard to political, economic, social, and religious viewpoints, and that therefore, the UDHR necessarily was “an effort at compromise and mutual understanding.”15 U.N. GAOR, 3d Sess., 181th plen. mtg. at 875, U.N. Doc. A/PV.181 (Dec. 10, 1948). Australian Ralph L. Harry had served on the UDHR Drafting Committee. Brazil similarly found that the UDHR “did not reflect the particular point of view of any one people or of any one group of peoples,” and it was not “the expression of any particular political doctrine or philosophical system.”16 Id. at 878. The UK stated that “never before had so many nations joined together to agree on what they considered to be the fundamental rights of the individual,” noting that, “[m]ore than 50 nations with differing systems of government and differing social structures, religions and philosophies had adopted by an overwhelming majority the articles of the draft declaration . . . ”17 Id. at 882–83. New Zealand as well recognized the wide variety of state philosophies that were in competition, but concluded that it was possible to reconcile divergent points of view. It was this ability to draft a common text that made the declaration “universal.”18 Id. at 888. Syria noted, shortly before the final vote was taken on the UDHR, that it did not believe that the UDHR was “perfect,” but that perfection was not possible at the time. Improvements would need to be made during the upcoming years. Although Syria opposed some (unspecified) portions of the document, it nevertheless agreed to support the compromises that had been reached.19 Id. at 921.
No delegate, at any point during the entire drafting process, asserted that the UN should attempt to identify an underlying philosophical rationale for a human rights charter, and, a fortiori, none claimed in retrospect that they had done so. ♦
T. Jeremy Gunn is the University Professor of Law and Political Science at the International University of Rabat (Morocco). He received his Ph.D. from Harvard University, and has published widely in the area of religion and law and religion and politics.