Drafting History
The last stage was the debate in the Plenary Session of the Third General Assembly, which led to the adoption of the Declaration the same day, on December 10, 1948. This was the fourth time the rest of the UN membership could seek to amend what the eighteen-member Commission had done. Both the General Assembly and the Third Committee met in Paris that year. While numerous amendments were proposed, only one substantive change was made. About half of the time was spent on explanations of the abstentions. The other half was taken up with self-congratulatory speeches about what the delegates felt they had achieved. Naturally they were proud of the inclusiveness of the drafting process. The delegates were tempted to move from that inclusive process to the claim that the product therefore had worldwide applicability. The Third General Assembly adopted the Declaration just before midnight on December 10, 1948 with a vote of 48 to zero and eight abstentions. The abstentions came from the USSR, the Ukrainian Soviet Socialist Republic (UKSSR), the BSSR, Yugoslavia, Poland, Saudi Arabia and South Africa. It is important to note that none of these countries voted against the Declaration and that even these abstaining delegations had participated and cooperated in the various drafting procedures. The Six Communist Abstentions The Communist abstentions coalesced around the view that the Declaration did not go far enough. They had repeatedly made the point that to protect human rights adequately, the Declaration needed explicitly to condemn fascism and Nazism. Since it did not do that, they would abstain from the vote. The deep animosity that exists between Marxist egalitarianism and Nazi racism led the USSR delegation to propose amendments to what became Articles 19 and 20 stating that fascists and Nazis did not have human rights to freedom of expression and association. When those amendments were rejected, the Communists, rather than abstaining, which was their custom, voted against these articles. But the speech of the head of the Soviet delegation, Andrei Vyshinsky, the prosecutor of the infamous Stalin purge trials, made another more substantive ideological criticism, which came close to questioning the whole project. He retracted most of his acceptance of human rights in a speech on the relationship between the individual and the state, at times taking a legal positivist approach to the matter of human rights. Human rights in this approach cannot be conceived outside the State, because the very concept of right and law was connected with that of the State. From a purely ideological point of view, the Communist countries probably should have voted against the UDHR, if they wanted to be consistent. However, insisting on a legal positivist interpretation of human rights would have deprived them of the ability to condemn nazism, because one needs a leverage point outside the nazist ideology. Only a conception of human rights as rights transcending existing national law could reject nazist legislation. A legal positivist view accepts all legislation - even immoral legislation - as long as it is drafted according to existing formal procedures. Human rights, on the other hand, are rights which people have, independent from and even against their own states. Thus the Communist bloc abstained. The Saudi Arabian Abstention The Saudi Arabian delegation abstained in the final vote mostly for two reasons: because of the wording of Article 16 on equal marriage rights and because of objections to the clause in Article 18 which states that everyone has the right ?to change his religion or belief.? In an essay he wrote later, Cassin pointed out that the inclusion of Article 18 had not prevented other countries with Muslim populations, like Syria, Iran, Turkey and Pakistan, from voting for the Declaration.(10) The South African Abstention The Union of South Africa abstained from approving the document, which it knew the United States would use to condemn South African practices of apartheid and racial discrimination. Already in 1946, the First General Assembly had interceded in a dispute between India and South Africa about the treatment of Indians in the Union. Two-thirds of the Assembly had expressed the wish ?that the treatment of Indians in the Union shall be in conformity with ? the relevant [human rights] provisions of the Charter.?(12) At first glance the South African position on the Declaration seems straightforward. While the Communists thought the Declaration did not state enough, the South African government thought that it said far too much. Speaking in the General Assembly, just before the vote, Harry Andrews repeated the South African theme that the draft declaration submitted to the General Assembly went far beyond the rights and freedoms contemplated in the Charter. ?It was clear from the provisions of the Charter,? he said, ?that social, cultural, and economic rights had never been intended to be included in the draft declaration.? Upon closer scrutiny, however, the South African position can be seen to have been advanced not because of its philosophical merits, but for the protection of the system of apartheid, which clearly violated any number of articles in the Declaration. A basic human right, the right of a person to participate in the government of his or her country, which is included in even the most conservative packages of human rights, was according to Louw, the South African representative on the Third Committee, not universal. ?It was conditioned not only by nationality and country, but also by qualifications of franchise,? which in his country - and this he did not add ? included race. According to the South African Constitution of that day, only a ?person of European descent? could be a member of the House of Assembly or the Senate. (Morsink, 29) As noted by Morsink, it is one thing to construct a conservative approach to human rights and to want to keep the list of entitlements as short as possible; but that high legal ground cannot be bought with racist coin. Accordingly, this abstention by the Union of South Africa lacked integrity and does not detract from the universality of the Declaration. Moreover, even if South Africa had been clear about its racist premises, the abstention would nevertheless not detract from the universality of the UDHR, because a racist position has unanimously been rejected as immoral. (Asbjørn, 3; Morsink, 4-12) Peter Danchin, Columbia University |