Avi Cover 2006 Human Rights Conference Speech

In thirty short articles, the Universal Declaration of Human Rights (UDHR) sets forth a wide-ranging set of rights, from civil and political liberties, to family rights, to economic, social and cultural rights. The declaration was the product of the haggling of 58 nations and took almost two years, twenty-seven meetings and 1200 ballots on proposed amendments. The Declaration announced the rise of the human rights movement and the document itself might be viewed as embodying the movement’s own strengths, weaknesses and aspirations.
We in North America are quite familiar with what may be termed the western set of rights, those enshrined in the American Declaration of Independence - “all men are created equal” the inalienable rights of life liberty and the pursuit of happiness.” These rights are to be sure enshrined in the declaration. So we see in the substance of Article 1 - “All human beings are born free and equal in dignity and human rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Or Article 3 “everyone has the right to life, liberty and security of person.” Also present in some nations' laws, but certainly not in the United States, is the content of Article 23, “Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. Everyone, without any discrimination, has the right to equal pay for equal work.” These rights spoke more perhaps to the socialist bloc countries at the time of the declaration’s adoption.
It is also, of course, a product of its time. While the notion of these economic social and cultural rights seems now a bit askew with particularly American sensibilities, one should recall that it was a few years earlier that FDR had famously posited the four freedoms that must be secured: freedom of speech and expression, of worship, of want and of fear. There were also somewhat trailblazing enshrinements of rights in the family, Article 16’s pronouncement of men and women’s equal rights in marriage; the requirement that individuals enter into marriage freely and that the family should be protected by the society and state. In addition the declaration acknowledges the critical need for order and community to respect and enforce these rights, as embodied in 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.”
One critique leveled at the declaration and at the notion of universal human rights generally is that it is philosophically incoherent, a splattering of rights that bang up against one another and that cannot be reconciled with one another. There is of course some truth to the cacophony of the rights set out in the declaration. They do not all derive from one line of political thought; no natural state or social contract precede this; the civil and political rights on one hand establishing the primacy of the individual against the state and the economic and social rights establishing the obligations of society to provide social security and work came from seemingly different ends of the political universe in 1948.
The philosopher Alasdair MacIntyre thought so little of this sort of enterprise that he declared “there are no such rights, and belief in them is one with belief in witches and unicorns.” Whether commitment to human rights amounts to fidelity to a set of fairy tales is beyond the time allotted to me here today. (Though there is no doubt a certain messianic zeal to human rights). But one line of consistency courses through all of these rights - the belief that all of these rights in the words of the declaration’s preamble “derive from the inherent dignity of the human person.”
But the declaration does not explicitly justify human dignity as the source of rights or state its precise meaning. But in the following sentence in the preamble it is clear that the declaration and the human rights movement cannot be separated from the horrors of the Holocaust, reminding the reader that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.” Perhaps here we have our coherence. Without these rights; without respect for human dignity, we will revisit barbarism. I have to believe that human rights amount to something more than mystical imaginings to keep starvation, torture and discrimination at bay.
The Declaration of Human Rights is then also a partial repudiation of the nation state system. Unflinching and groveling respect for national sovereignty saw the dangerous repercussions in the world wars of the twentieth century. So the creation of the UN in 1945 and the declaration was in part a break from the nation state systems and a push toward primacy of the individual, an understanding that rights of individuals, lives of individuals must transcend the prerogatives of states and assertions of sovereignty.
The Declaration does not ignore the state as it is not a purely utopian document. It recognizes that a great level of the enforcement of these rights will rely on states but by asserting the primacy of the individual – his or her rights and dignity, it was making clear that sole responsibility for securing these rights was no longer, could no longer be entrusted to the state but was the obligation of all peoples, of the UN, but also of ordinary citizens, and groups and churches and synagogues and mosques.
As Eleanor Roosevelt said: “Where, after all, do human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual persons; the neighborhood he lives in; the school or college he attends; the factory, farm or office where he works.”
Seeking universal acceptance of these rights prompted in part one of the more controversial aspects of the declaration. It is not legally binding. “It is not a treaty; it is not an international agreement. It is not and does not purport to be a statement of law or of legal obligation.” (Eleanor Roosevelt)
Raphael Lemkin and others criticized this decision, concerned that this would then just be in the words of one Soviet critic in 1948 “ a collection of pious phrases.” If indeed human dignity is to be protected and owes it high position to the ashes of the atrocities of the Holocaust how may be defended the lack or timidity of enforcement mechanism? What is a right after all without a remedy? What justice is there if those who violate rights are not prosecuted? These are fair and valid questions.
Part of the answer is the declaration was but the incipient stage of human rights and also a product of diplomacy and politics. It was understood that legally binding instruments would derive from the declaration and indeed they did. In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted (Mexico, Canada and the US have all ratified the ICCPR and only the US has held back from ratifying the ICESCR).
But the framers of the UDHR were not pie in the sky utopians. They knew that primary enforcement of the UDHR would have to come from nations, through incorporation of the UDHR in their respective constitutions and through enforcement. Europe where the horrors of the Holocaust were visited has seen the greatest and clearest success, the creation of a European Convention on Human Rights and European Court of Human rights with accession to judgments.
But I suspect the declaration’s lack of legal effect also owed something to the declaration’s framers’ understanding of human nature. The declaration is an aspirational document. It no doubt was not and is not descriptive. Indeed we will likely never see any nation that fulfills or ensures the enjoyment of all the rights enumerated in the UDHR.
Choosing not to legally bind all nations to the declaration was perhaps an acknowledgment that the world community was and continues to be like the Israelites wandering in the desert for forty years. Citizens of nation states, enraptured by national sovereignty and politics were a generation not ready to bind themselves to human rights obligations. This generation was not ready to enter Israel. Reorientation was and is necessary. Or as Charles Malik, one of the Declaration’s framers, said “Men, cultures and nations must first mature inwardly before there can be effective international machinery to adjudicate in complaints about the violation of human rights.”
Indeed its greatest accomplishment has been in spearheading a cultural shift. The declaration has served as the model for constitutions and other authorities adopted by many countries in the era of self-determination following World War II. The values and principles of the UDHR served as inspiration to movements fighting apartheid in South Africa and the police states of Eastern Europe. Exposing nations as violators of these rights proved a powerful tool for the human rights movement. The UDHR has triumphed in many areas because of its moral power and its universal assent, perhaps because of, not despite its non-legal power.
But we are of course still wandering. Not unlike the Israelites’ relationship with God and his commandments is the continual stubbornness or inability or unwillingness of the world community to adhere to the UDHR. Just prior to his acceptance of the Nobel Peace Prize in 1668 the UDHR drafter Rene Cassin remarked: “The Declaration holds up an ideal for us, and it draws the guidelines for our actions.
But a glance at reality today is enough to show us that we are far from the ideal.” How sad and tragic and repetitive do Kofi Anan’s words, reflecting on his unsuccessful efforts to make human rights a third pillar of the UN beside peace and security sound. “Sixty years after the liberation of the Nazi death camps, and 30 years after the Cambodian killing fields,” the inaction on Darfur, he acknowledged, means “the promise of "never again" is ringing hollow.” He bemoaned the assertions of sovereignty in the face of genocide and he decried the impunity for war crimes, the use of torture and cruel treatment in the face of fighting terrorism, the failure of the human rights council to address abuses throughout the world and the plight of Africa.
This catalogue of the human rights violation violations around us should not be viewed as primarily an indictment of the UN or the impotency of the declaration and human rights laws. Rather it is an indictment of us, a reflection of our own impotency in the face of this seemingly perpetually shattered world. Yes we are far from the ideals of the UN and the declaration but that means if we think they are broken or impaired we should not dismiss them but seek to realize their importance, imbue them with power and try to fix this broken world.