The Universal Declaration’s bias towards Western democracies

By Elizabeth Willmott-Harrop

January 2003

Introduced in 1948 by a UN General Assembly Resolution, the Universal Declaration of Human Rights (UDHR) aimed to exert a moral and political influence on states by way of a series of recommendations. However, as one of the most widely cited human rights documents in the world, the non-compulsory form of the declaration should not belie its enormous influence in steering global human rights culture in the five decades that followed.

The question of whether the UDHR ignores the social differences of the 191 United Nations member states today and the 58 which existed when the UDHR was drafted, is therefore a pertinent one.

Influence of the UDHR

The UN General Assembly refers to its desire to encourage “the progressive development of international law and its codification” in article 13 of the Charter of the United Nations. Although the declaration is not a legally binding document, its lack of legal status has not prevented its significant influence in formulating legislation at a domestic and international level.

For example, its principles are enshrined in and are the inspiration of the constitutions and national legislation of many newly independent states, which often seek to embody the spirit of democracy, which is promoted by the UDHR.

The incorporation of the principles of the UDHR into domestic legislation is one argument used to show that the declaration has now become part of the body of customary law. Other examples of opinio juris include references in UN resolutions and declarations to the duty of states to observe the UDHR and decisions in national courts that refer to the UDHR as a source of standards for judicial decision.

Meanwhile at a regional level, references to the declaration have been made in the charters and resolutions of regional intergovernmental organizations as well as in treaties and resolutions adopted by the United Nations system. The UDHR is said by the United Nations High Commission for Human Rights (UNHCHR) to have inspired more than 60 human rights instruments, which together comprise an international standard of human rights.

Among these instruments are the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), which were designed to make the provisions of the UDHR legally binding and which therefore refer to the UDHR explicitly in their preambles. To illustrate the impact of the UDHR on these treaties, just compare the close wording and structure of some of the articles, for example article 19 of the UDHR and article 19 of the ICCPR, both of which talk about freedom of opinion and information.

As the United Nations human rights system undergoes constant evolution and development, so too the principles embodied in its treaties continually give rise to new instruments, which again carry the original influence of the UDHR. Examples include the Convention against Torture, which entered into force in 1987, and the Convention on the Rights of the Child which entered into force in 1990.

Input into the original drafting

Although the UNHCHR claims there was broad-based international support for the Declaration when it was adopted, the UDHR has been accused of omitting the voice and values of states, cultures and peoples. Adamantia Pollis and Peter Schwab (Quoted in Johannes Morsink, The Universal Declaration of Human Rights Origins, Drafting and Intent) are not alone when they assert that “the Western political philosophy upon which the Charter and the Declaration are based provides only one particular interpretation of human rights.”

When one considers the scope of the document, as discussed above, it is easy to see why these accusations continue to this day.

Here I will look at five key areas in which the UDHR can be accused of ignoring social difference:

• the values it expresses are predominantly Western with a specifically capitalist view of how society operates

• prominence is given to civil and political (CP) rights, rather than economic cultural and social (ESC) rights

• the declaration does not acknowledge that significant economic inequalities between states will impair the ability of some to implement the recommendations

• there is no mention of the rights of peoples or minorities, other than in the general terminology of non-discrimination

• various aspects of the UDHR are unhelpful in the protection of women’s rights

Western values

That the UDHR espouses primarily Western values is the core accusation levelled at the declaration, out of which several other of the criticisms listed above flow.

There were 58 UN member states at that time of drafting the UDHR. According to Philippe De La Chappelle (Quoted in Johannes Morsink), this membership was composed as follows:

• North and South America: 21 countries
• Europe: 16 countries
• Asia: 14 countries
• Africa: 4 countries
• South Sea Islands: 3 countries

The UN now has 191 member states, over three times the number at drafting, so it is perhaps not realistic to claim that the UDHR represented “a common statement of goals and aspirations – a vision of the world as the international community would want it to become” because the international community at that point was far from fully realised.

As for the composition of the 58 states at drafting, Africa and Asia were vastly under represented, illustrated by the fact that Africa gave rise to over 30 independent states in the decade 1958 to 1968 (Harry Magdoff quoted in Johannes Morsink). This under-representation was compounded by and resulted from the fact that at the time of drafting, many Asian and African countries were colonized by nations such as France and Britain who were involved in the drafting process: The drafting committee was composed of eight people, from Australia, Chile, China, France, Lebanon, the Union of Soviet Socialist Republics, the United Kingdom and the United States of America.

It is therefore the views of the colonizing, and not the colonized, which were represented. This, in spite of the fact that in the late 1940’s, Lenin’s 1914 calculation that over half of the world’s population lived in colonies, covering 75% of the world’s territories, remained reasonably accurate (Johannes Morsink).

The issue of Western domination of the drafting process was raised directly by UN member states during the two year drafting process. For example, the Saudi Arabian delegation in discussion on article 16 relating to marriage, commented that the UDHR represented “… standards recognised by Western civilisation and had ignored more ancient civilisations…” (Jamil Baroody quoted in Johannes Morsink).

It is interesting to note that the delegations which abstained from voting in favour of the UDHR were ‘non-Western’ namely Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR, Union of South Africa, USSR, and Yugoslavia. However, underlining the complexity of the process of bringing the declaration into force, it can be noted that these abstentions did not necessarily boil down to objections over Western dominance.

The USSR and its partners, for example, abstained from voting because the declaration did not provide an outright condemnation of fascism and nazism. Likewise, it is believed that South Africa abstained knowing that the declaration would be used to condemn its discriminatory practices.

The text of the declaration

Although it could be argued that objections such as that by Saudi Arabia above, endorse a cultural relativist perspective, there is no doubt that while the UDHR purported to be universal in quality, it did in fact closely reflect Western values. Within the declaration’s text one can see clearly that assumptions about how society is organised, which are akin to capitalist or a generally Western style of society, are prevalent. Examples include:

Preamble: “the peoples of the United Nations have in the Charter … determined to promote social progress“

This assumes that social progress is good, that societies who turn their back on social progress are therefore somehow ‘uncivilized’ and unworthy of membership of the international community and finally that social progress is automatically inclusive of the promotion of human rights. One has only to look at the current arguments surrounding the human genome and the complex issues related to globalisation to realise that this is not necessarily the case.

Preamble: “… every individual and every organ of society …”

This statement adopts a typically Western, capitalist perspective, which is based upon the individual as the empowering agent of society. Other concepts of self, such as those found in patriarchal and familial systems common to Asia, are swept away in this simple reference.

Article 16: “Men and women … have the right to marry” (above right)

This assumes the marriage of a man and woman to be the social norm, thereby discounting homosexual relationships, polygamous societies or societies which do not recognise the institution of marriage.

Likewise, Article 16 declares that “The family is the natural and fundamental group unit of society”, again failing to embrace alternatives such as extended family or tribal structures.

Article 17: “Everyone has the right to own property … ”

Although the words ‘in association with others’ were added as a result of the Communist lobby, the whole concept of property ownership is inherently capitalist and could be argued to serve primarily the interests of affluent societies and individuals.

Article 23: “Everyone who works has the right to just and favourable remuneration ensuring for himself and his family …” (left)

The male as primary bread-winner, worker and family head is a reflection of a very specific style of social organisation and one that is becoming increasingly outmoded in even Western societies.

Predominance of Civil and Political Rights

The UDHR is accused of focussing on ‘first generation’ CP Rights to the detriment of ‘second generation’ ESC rights.

However, the drafting committee were given a clear brief to include ESC rights by Henri Laugier, the boss of John Humphrey who was responsible for producing a first draft of the UDHR. Laugier stated: “…political rights are the first condition of liberty but … economic organisations are inflicting on politically free men intolerable servitude and … in the future, the declaration of the rights of man must be extended to the economic and social fields” (Quoted in Johannes Morsink).

This quote illustrates how it is in the interest of capitalist Western societies to place more emphasis on CP rights than ESC rights. Many of the CP rights underpin democracy and therefore Western styles of government, while ESC rights may be advocated more strongly by worker-led socialist or communist societies. This dichotomy was played out in the drafting process with the delegates from Australia and the UK believing it better to leave ECS rights to a later convention and the Soviet lobby arguing that “The common man was only interested in freedom of speech and freedom of the press when he was protected against poverty…” (Quoted in Johannes Morsink).

Bearing such tensions in mind, it is pleasing to note that an explicit reference is made to ESC rights in Article 22 (right) which states that “Everyone … is entitled to realization… of the economic, social and cultural rights indispensable for his dignity and the free development of his personality” as well as a number of individual ESC rights being elucidated.

Economic inequalities

As the indivisibility of CP rights and ESC rights has come to the fore in recent human rights discourse, I would argue that these distinctions will become less important than the ability of states to implement both categories of right. This takes the argument away from one of first generation vs second generation rights and turns the spotlight to the international community and its role or obligation in supporting the implementation of rights universally.

Likewise the individual states which make up the international community have a responsibility to incorporate human rights values in all of their public policies. There is little point for example, in the West creating mass displacement of rural populations through the desire for cheap production in third world urban factories and then shrieking hysterically as droves of economic migrants arrive at their borders.

The General Assembly in the preamble proclaimed the Declaration as a “common standard of achievement for all peoples and all nations”, towards which individuals and societies should strive “by progressive measures, national and international, to secure their universal and effective recognition and observance”.

The use of the phrase ‘progressive measures’ indicates that states with fewer means and resources are able to realise the rights at a slower pace. The only acknowledgment however, that the international community has a responsibility to help each state fulfil the recommendations of the declaration comes in the unspecific wording of Article 28 which states that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised.”

The declaration therefore contains a list of universal values and universally respectable human rights but without acknowledging the need for a universal benchmark in the form of the minimum resources or infrastructure a state would require for implementation and how that need should or could be met by the international community.

Rights of Peoples

Although self-determination is mentioned in articles 1 and 55 of the UN Charter, there is no reference to minorities, the rights of peoples or of self determination in the UDHR.

A General Assembly resolution passed at the time of the UDHR – 217C(III) – declared that the United Nations cannot remain indifferent to the fate of minorities. However, Janusz Symonides points out that the resolution goes on to say that “… it is difficult to adopt a uniform solution to this complex and delicate question, which has special aspects in each State in which it arises”.

The issues surrounding minority rights and the rights of peoples were therefore far from clear at the time of the drafting of the UDHR. Indeed coinciding with the adoption of the UDHR on 10 December 1948, the General Assembly invited the Commission on Human Rights to make a thorough study of minorities in order that the United Nations might take effective measures for their protection. According to Janusz Symonides, between 1948 and 1955, the Sub-Commission on Prevention of Discrimination and Protection of Minorities undertook a number of studies and in 1950, a classification based on eight criteria contained nearly thirty different groups of minorities.

Added to this lack of clarity was the fact that, as discussed earlier, it was not in the interests of colonizing powers to acknowledge the rights of peoples. However, the Communist drafters successfully lobbied to include a reference to colonized peoples in the wording of article 2 which reads: “… no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.” A minor achievement perhaps, but an achievement none the less.

Women’s Rights

The equal rights of men and women were first referred to in an international human rights context in the preambles of both the United Nations Charter of 1945 and the UDHR. Indeed the Sub-Commission on the Status of Women, which worked with the drafting committee, has been applauded for its achievement in for example removing sexist language from the declaration.

However, the UDHR is also unsupportive of women’s rights. Abuses of Women’s Human Rights take place predominantly in the private sphere by non-state actors, for example in the area of employment or the family. As we have seen earlier, the rights in this sphere fall under ESC rights, which are weaker in the declaration and in the form of the ICESCR have poor enforcement mechanisms as a result of their progressive nature.

Both the UDHR and the ICCPR fail to acknowledge how some fundamental rights have a specific application to women. One example is the right to life, which does not address ways in which simply being female is life threatening. Furthermore, in the case of the ICCPR, which seeks to provide a legal framework for many of the rights in the UDHR, such crimes are outside the boundaries for redress which apply only to violations committed by a “person acting in an official capacity” (ICCPR Article 2, Paragraph 3a).

The declaration is also careful to protect the family as a social unit, stating in Article 16: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. This reinforces the impotence of women in situations of domestic violence or slavery. As H Holmes notes: “The sacrosanct image of the family in human rights law discourages intervention and proper scrutiny of whether the rights to life, liberty, freedom from slavery and security of person are realised in particular family contexts” (quoted in Charlesworth and Chinkin).

Regrettably this sentiment was later reinforced by article 10 of the ICESCR which states that: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.”

Conclusion

Without doubt the UDHR is flawed. It fails to address social differences by virtue of its Western perspective and is ineffective in addressing the complex issues of minority rights and the rights of peoples. However, these weaknesses in no way detract from the monumental impact and significance of the document in terms of international standard-setting in human rights and in providing at least a starting point from which enormous strides have been taken in the past 50 years.

In spite of the criticisms levelled at the declaration, over 170 countries reaffirmed their commitment to the UDHR at the World Conference on Human Rights held in Vienna in June 1993. The weaknesses of the UDHR have therefore been forgiven if not forgotten and it is up to the international community to move beyond the limitations of the declaration to further advance international human rights standards.

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Bibliography

1. Antonio Cassese: International Law
2. Charlesworth and Chinkin, The Boundaries of International Law, A feminist analysis
3. Charter of the United Nations
4. International Covenant on Civil and Political Rights
5. International Covenant on Economic, Social and Cultural Rights
6. Johannes Morsink: The Universal Declaration of Human Rights Origins, Drafting and Intent
7. Steiner and Alston, International Human Rights in Context
8. Janusz Symonides, The United Nations System Standard-Setting Instruments and Programmes Against Discrimination: Introductory Remarks
9. Patrick Thornberry, Ethical Dimensions of International Human Rights in Hegarty and Leonard, Human Rights: An Agenda for the 21^st Century
10. United Nations High Commission for Human Rights
11. Universal Declaration of Human Rights