Renewing Human Rights

When Eleanor Roosevelt and a small group of people gathered at the behest of the U.N. in early 1947 to draft the world’s first “international bill of rights,” they cannot have had very high hopes for their endeavor. The world was awash in colonial oppression, discrimination, poverty, and conflict. Though the Great Powers had just ended a war that saw unimaginable violations of human dignity, the Allies were reluctant to establish any system that threatened their national sovereignty. The idea of “human rights” barely existed in the public imagination, and had almost no role in international law; it had only recently gained currency as a phrase among scholars and policymakers in the United States, the United Kingdom, and Latin America. The idea that some rights could be universal—applicable across all the world’s different societies—was controversial.

Yet in the decades that followed, this very idea had a transformative influence on the post–World War II political order. The Universal Declaration of Human Rights (UDHR), the most prominent symbol and instrument of these changes, successfully challenged the view that sovereignty provided an iron shield behind which states could mistreat their people without outside scrutiny. In thirty short articles, the Declaration gave expression to deep yearnings among men and women everywhere, strengthening the movements that would soon bring an end to colonialism, and later apartheid, and eventually communist rule behind the Iron Curtain. It contributed to the wave of democratization that started in the 1970s in Europe and spread across Latin America, Africa, and Asia. It inspired legions of activists, who wrote reports, published articles, pressured politicians, appealed to courts, and publicized abuses. And it gave the weak members of any society an instrument to amplify their voices.

But now that the Universal Declaration is seventy, the international human rights idea is in crisis, losing support both at home and abroad. Good intentions, honest mistakes, power politics, and plain old opportunism have all played a role in a growing skepticism, and even a backlash.

In the developing world, the way human rights have been promoted has reawakened old resentments associated with colonial rule. The International Criminal Court has focused on cases from geo­politically weak—African—countries, while governments such as Syria’s commit atrocities with little fear of prosecution. Western governments often use human rights in ways that appear to advance their own interests. And human rights actors emphasizing “international justice” have in some cases made it harder to resolve conflicts, remove dictators, and reconcile groups in places such as Uganda, Sudan, and Libya.

Meanwhile, cynicism about international human rights has been growing in Western liberal democracies. The U.N.’s Human Rights Council, successor to the distinguished Human Rights Commission that drafted the UDHR, has been credibly accused of bias and bloc voting. At the national level, attempts to frame complex political questions (such as whether and how to limit immigration) as human rights issues fuel divisiveness, shortchanging the necessary work of finding solutions that promote the common good.

How did an idea that once showed such surprising power fall into disrepute? As we see it, there were three stages: a pick-and-choose attitude toward rights initiated by the two superpowers in the Cold War era; an over-extension of the concept once the human rights idea showed its moral force; and a forgetfulness of the hard-won wisdom of the men and women who had lived through two world wars.

The ink was barely dry on the UDHR when the Cold War antagonists tore it in half, so to speak, with the U.S. championing political and civil rights, and the Soviet Union social and economic rights. Each side extracted the parts of that integrated document that suited its purposes, and ignored the rest.

In the 1960s, the idea of human rights started penetrating the global consciousness, spurred by the spread of mass media and the rise of groups such as Amnesty International. In the U.S., Cold War politics coupled with humanistic ideals gave the issue growing salience in foreign policy on both the left and right, especially after Congress established the human rights bureau within the U.S. State Department in 1977, and President Jimmy Carter made an explicit commitment to the cause in his inaugural speech. Ronald Reagan, initially skeptical, did not hesitate to embrace human rights in the Helsinki Accords.

The end of the Cold War increased the influence of human rights. American predominance, Western ideological ascendancy, a series of atrocities and conflicts, and a growing role for the United Nations and other international actors spurred the rapid growth of human rights activism in the 1990s. By the 2000s, there were many human rights organizations, including specialists, activists, agencies for monitoring and enforcement, and academic journals.

Meanwhile, significant shifts in ambition and focus took place. From the nineteenth century to the later parts of the twentieth century, neutrality, reciprocity, and non-interference in the affairs of sovereign states were core principles, as exemplified by the International Committee of the Red Cross. Since the late 1970s, however, an interventionist approach, backed by Western—especially American—power, gained ground. The establishment of state-like institutions such as the International Criminal Court (which the United States ultimately did not endorse), and doctrines such as the “Responsibility to Protect,” reflected this shift. They increased the human rights field’s ability to frame the international agenda and set global standards.

This encouraged an expansion in the number of basic rights. Groups harnessed the moral authority of the human rights idea to champion their causes. Today there are calls to make everything from access to the Internet to development aid to free university education a right. The Universal Declaration’s modest thirty articles have burst into potentially more than a thousand rights provisions in agreements that many governments have signed. A 2013 article in Foreign Affairs notes with disappointment that “much of the human rights community has not only shied away from expressing qualms about rights proliferation, it has often led the process.” At the same time, activists followed the selective approach of the old Cold War antagonists, promoting some rights and ­ignoring others.

Given that individual rights were gaining ascendancy, the role of social institutions and non-­individualistic values were deemphasized. A one-size-fits-all approach triumphed over the idea of a common standard that could be brought to life in a variety of legitimate ways. The indivisibility and inter­dependence of fundamental rights were ­forgotten.

Some states argue that they signed on to legal commitments in international agreements, but not to uniform methods of interpreting and implementing them. There is, for example, no reason why African states should not emphasize restorative over retributive justice; East Asian countries, the ­communitarian aspects of their cultures and developmental policies of their states; and Middle Eastern countries, the role of ­religion—as long as they keep their legal ­commitments.

Many have also grown disenchanted with supra­national institutions. They are remote from the people whose lives they affect. They lack public scrutiny and accountability, are susceptible to lobbying and political influence, and have no internal checks and balances. Both the United Nations Human Rights Council and the International Criminal Court have lost credibility through the appearance of bias. Scholars and public figures criticize the sort of human rights thinking that they view as insufficiently respectful of national constitutions, democratic legislation, and local contexts. As Eric Posner has argued, human rights should be less about a crude “top-down mode of implementation” that “requires massive changes in the behaviour of most non-­western countries,” and more about paying attention to the “minutiae of social context,” with an emphasis on “promoting wellbeing” in a humble manner.

When such disagreements come from repressive regimes or dictatorial communal leaders, they are easy to dismiss. But when they come from people who are sympathetic to the cause of human rights, they reflect something more fundamental. In our view, Nobel Prize winner Amartya Sen’s criticisms of ­international policymakers go to the heart of the ­problem. With regard to the U.N.’s 1994 Cairo ­population conference, Sen took to task those who exhibit“a tendency to search for emergency solutions which treat the people involved not as ­reasonable beings, . . . but as impulsive and uncontrolled sources of great social harm, in need of strong discipline.”

These signs of discontent reflect today’s changing geopolitical landscape: Southern and Eastern value systems, ideas, and ways of organizing society—which are more sociocentric and tradition-based—have greater sway. The rising economic and political power of Asian, African, Middle Eastern, and Latin American countries increasingly draws Western-­dominated international institutions and Western global norms into question. At the United Nations, for instance, support for European Union positions on human rights began dropping in the 1990s, while the number of votes in the General Assembly in line with China’s position started increasing. China, India, Indonesia, Brazil, Ethiopia, Nigeria, Russia, Turkey, Saudi Arabia, and others already have greater, or at least comparable, ­influence within their regions than does the West. Their political and social norms are spreading beyond their borders, sometimes rolling back Western initiatives and ideas in the process.

Freedom House reports that democracy “is under assault and in retreat around the globe.” The organization’s measurements of political rights and civil liberties have registered twelve consecutive years of decline. Meanwhile, foreign-funded civil society organizations that promote human rights are increasingly viewed suspiciously. This is true not only in authoritarian regimes such as Russia, Azerbaijan, Turkey, Sudan, Egypt, and Venezuela, but also in democracies such as Mexico, Malaysia, Nigeria, Hungary, and Israel, all of which have passed or are considering passing legislation regulating these kinds of NGOs.

The West has often tried to use a rights-first approach to solve problems that require more comprehensive and differentiated treatment. The failure of Western attempts, for example, to help developing countries overcome their biggest challenges—­ethnic conflict, weak institutions, and exclusionary growth—has undermined the moral authority of human rights in the countries where it is needed most. The rush to elections in places such as Libya and the Democratic Republic of the Congo has done little to improve lives; on the contrary, it has contributed to persistent human rights violations. As Michael ­Walzer, professor emeritus of the Institute for Advanced Study in Princeton, argues, “Politics must sometimes substitute for justice, providing a neutral frame within which a common life slowly develops,” producing “negotiated” rather than “imposed” ways of living.

Meanwhile, within Western societies, growing political divisiveness and ideological diversity threaten to turn the idea of rights from a shield that protects everyone into a spear that opposing groups hurl at one another.

In European countries such as Norway, Denmark, Switzerland, Germany, and France, there is a growing divide between the secular state (backed by a secularized majority population) that pursues animal rights, children’s rights, and nondiscrimination, and minority religious groups defending their right to practice their faith. Jewish and Muslim groups, for example, now must defend circumcision—an ancient ritual integral to their faiths—against human rights groups declaring it a violation of children’s right to bodily integrity. The capacious right to religious freedom in the Universal Declaration’s Article 18, which includes the right to “manifest” one’s religion in “teaching, practice, worship and observance,” is being narrowed to mean only a right to believe and worship—not a right to practice and observe.

In the United States, the reliance on rights and courts to solve disputes encourages a winner-takes-all attitude, at the expense of tolerance and compromise. Whereas most democracies introduced policies on controversial matters, such as abortion and sexual freedoms, through legislation and compromise, in the U.S. they have often been dictated by courts, thereby alienating parts of the population and reducing the scope for political settlements.

These trends risk undermining one of the West’s greatest achievements: its ability to tolerate difference and to host minority groups. Instead of providing a home to a great variety of viewpoints and belief ­systems—including dissenters from mainstream views—the positive tradition of human rights risks becoming more conformist and less ideologically ­diverse.

The questions the drafters of the UDHR faced are similar to the questions we confront today. How can rights be deemed universal in a world of great cultural and political diversity? What is the role of society, the state, and international bodies in implementing those rights? How much scope should countries offer minority groups to diverge from majoritarian concepts about rights? What happens when one fundamental right clashes with another?

Four major principles that the UDHR’s framers followed can reinvigorate the human rights idea in our own time: Modesty concerning what rights can be universal; pluralism in bringing rights to life; interdependence of basic rights; and subsidiarity.

Modesty concerning universality

The framers wisely confined themselves to a small set of principles so basic that no country or group would openly reject them. This was essential not only in order to gain broad political support within the U.N., but also to ensure that the Declaration would have deep and long-lasting support across vastly different cultures, belief systems, and political ideologies.

The minimum standards in the UDHR, which blended community-oriented and individualistic concepts, won acceptance from a wide assortment of European, Middle Eastern, Latin American, Asian, communist, capitalist, developed, and developing countries.

Flexible universalism

The original Commission on Human Rights included people from a broad range of different cultural, religious, economic, and political systems. The major players—notably René Cassin from France, Peng Chun Chang from China, Charles Malik from Lebanon, and Eleanor Roosevelt from the United States—were universalists but not homogenizers. They crafted a document that was flexible enough to respond to different needs, in terms of emphasis and implementation, but not so malleable that any basic right could be ignored.

They achieved this by synthesizing and integrating concepts from many parts of the world. Some elements focus on the individual, others on community and society. Some focus on freedom, others on solidarity and duty. The vision of liberty is inseparable from the call for social responsibility.

The framers understood that there would always be different ways of applying human rights to different social and political contexts, and that each country’s circumstances would affect how it would fulfill its requirements. Developing countries have fewer resources than developed countries. Socialist states emphasize different priorities than capitalist ones. Muslim states’ values vary from those of Western states. The framers recognized that each part of the world has its particular concerns. This is especially the case where economic and social rights are concerned. Article 22 of the Declaration declares that those rights should be put into practice “in accordance with the organization and resources of each State.”

During his speech to the General Assembly urging adoption, Chang emphasized that there was no single way of thinking or living. Uniformity can only be achieved by force, or at the expense of truth, and is unsustainable.

So the drafters of the UDHR deliberately left room for different states to experiment with different solutions. Article 14, for example, states that everyone has the right “to seek and to enjoy” asylum from persecution, but it is silent on how that right should be protected. It was expected that the Declaration’s fertile principles would be interpreted and implemented in a variety of legitimate ways. French philosopher Jacques Maritain, who supported the U.N. process, explained that this allows “different kinds of music” to be “played on the same keyboard.”

This flexible pluralism has often been restated in human rights documents, notably in the 1993 Vienna Declaration which affirms the universality of human rights, providing that “the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind.” We need the same flexibility today.

Interdependence of basic rights

The framers of the Universal Declaration took care to ensure that it would be read as a holistic document containing a small number of interdependent, mutually reinforcing rights. As the Ramsey ­Colloquium’s statement, published in First Things on the UDHR’s fiftieth anniversary, pointed out, “Far from asserting a random collection of unconnected rights, the ­Declaration is an integrated document that turns on a concept of the human person in community, and of the free and just society required for human ­flourishing.” 

Today, we are so accustomed to viewing the UDHR as a list of separate guarantees that hardly anyone realizes the document has a structure, includes duties as well as rights, and must be read as a whole. By isolating each part from its place in the overall design, misreadings of the Declaration facilitate misuse. Clashes of rights are treated as winner-takes-all contests. Forgotten are the sections of the Declaration making it clear that everyone’s rights depend on respect for the rights of others, on the rule of law, and on a healthy civil society.

One of the surest ways to misconstrue—or ­misuse—human rights is to think that any particular right is absolute, or that all the diverse rights can be wholly in harmony with one another. On the contrary, every right has certain boundaries and exists within a constellation of other rights.

The framers of the Declaration did not expect uniform management of tensions or conflicts between rights. They assumed that communities must balance the weight of claims of one right versus another before determining the best course of action. A handful of rights, however, were prioritized, tightly drafted so as to allow little scope for variation. They include protections for freedom of religion and conscience, as well as prohibitions of torture, enslavement, degrading punishment, of retroactive penal measures, and of other grave violations of human dignity made non-derogable under the International Covenant on Civil and Political Rights.

Our challenge is to retrieve the understanding that the principles of the UDHR were meant to work ­together, rather than to be pitted against each ­other—and to resist the notion that any basic right can be ignored.

Subsidiarity

The framers of the UDHR recognized that, when it came to human rights, there would always be disputes over the relative responsibilities of international bodies, national and local governments, and civil society. They took a pragmatic approach that today would be called subsidiarity. Subsidiarity emphasizes the primacy of the lowest level of implementation that can do the job, reserving national or international actors for situations where smaller entities are incapable of addressing the issues adequately. Although the principle is clearly written into international human rights agreements such as the one that established the International Criminal Court, too many international organizations fail to develop the local relationships that are fundamental to the lasting guarantee of ­human rights.

National governments have the ultimate obligation to fulfill their human rights commitments. But any group in society can advance human rights. Given the failures of the state-centric approach in so many areas of human rights—and in view of the importance of social norms, relationships, and morality to promoting rights—it is appropriate that the Proclamation clause of the UDHR calls on “every organ of society” to promote recognition and observance of human rights. The most important are ­specifically named: families, communities, religious groups, workplaces, associations, societies, cultures, nations, and an emerging international order.

Subsidiarity seeks to determine how human rights can be implemented in a way best fitted to each context. While there will be cases when international or centralized approaches are necessary, focusing on the local level will often be the best way to ensure that the UDHR’s standards actually penetrate ­society, reaching the maximum number of people possible. Subsidiarity encourages local institutions and processes to improve their performance, rather than expecting it of distant international actors.

Today, human rights activists declare: “Here is how you need to change to join us.” Instead, they should begin by asking: “What does human flourishing look like in your society or community, and how can we support you in encouraging it?” This shift in tone and perspective would reduce resistance and resentment, and result in a greater impact. But it would also require making the field far more inclusive of different viewpoints and cultures than it is now.

While some may claim that the flexible universalist approach we recommend is ineffective to check—and may even provide a license for—rights abuses, the reverse is true. A modest understanding of what rights can claim to be universal, and a pluralistic approach to their implementation, will gain wider support than overly ambitious strategies. Acceptance of the inter­dependence and indivisibility of basic rights will encourage more constructive ways to respond to clashes of rights. Subsidiarity will make the international human rights movement more influential and effective.

The international human rights project would do well to move toward a popular, uncontroversial, and properly ambitious new goal: the systematic elimination of a narrow set of evils for which a broad consensus exists across all societies. The bedrock of this should be the handful of rights prioritized and given little scope for flexibility by the drafters of the Declaration. The list, which could be augmented through negotiations, must include protections against genocide; slavery; torture; cruel, inhuman, or degrading treatment or punishment; retroactive penal measures; deportation or forcible transfer of population; discrimination based on race, color, sex, language, religion, nationality, or social origin; and protection for freedom of conscience and religion.

It is not the absence of laws that most oppresses the poor and marginalized in many places. They suffer everyday violence, discrimination, and corruption in spite of the laws. No system of rules and norms can depend solely on treaties, laws, and the force of the state. Only a popular culture of human rights can make this possible.

Ultimately, successful human rights promotion depends on attention to the attitudes, ideas, values, relationships, and institutions within which individuals, families, and communities are embedded. As Eleanor Roosevelt put it, documents expressing ideals “carry no weight unless the people know them, unless the people understand them, unless the people demand that they be lived.” And these, as she said in one of her last speeches at the U.N., depend on implementation in lots and lots of “small places.” 

Mary Ann Glendon is the Learned Hand Professor of Law at Harvard University. Seth D. Kaplan is professorial lecturer at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University.