Assessing the Universal Declaration of Human Rights:

Last December was the 60th anniversary of the enactment of the Universal Declaration on Human Rights. Nobel Prize-winning economist Amartya Sen has an article in The New Republic claiming that the Declaration was a major advance in the protection of human rights. I'm a big fan of Sen's work, even though I often disagree with him. In this case, however, most of his arguments seem unpersuasive.

A striking omission in the article is Sen's failure to identify even one country or region where the Declaration has led to increased protection for human rights or to some other form of tangible progress. If, as Sen claims, the Declaration really has "played an indisputably significant and astonishingly constructive role" in advancing the cause of human rights, we should be able to cite at least one case where it has led to major progress that would not have occurred otherwise.

Sen does claim that the Declaration facilitated progress in four different ways, at least three of which don't withstand close scrutiny.

I. Does the Universal Declaration Place Human Rights Above Legislation?

Sen argues that the Declaration was important because it "took the firm view that human rights do not depend on legislation for recognition. People have these rights simply by virtue of being human." Sen hails the Declaration's apparent conclusion that human rights transcend legislative enactments. But, as Sen himself acknowledges, this was hardly a new idea, since it had already been embodied in the US Declaration of Independence and in the liberal natural rights tradition more generally. Moreover, the text of the UDHR actually defends sweeping legislative constraints on the supposedly "universal" rights it purports to defend. Article 29 of the Declaration emphasizes that "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." Almost any restriction on freedom "determined by law" can be defended on the grounds that it is needed to promote "morality," "public order," or "general welfare." Worse still, Article 29 also notes that "These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations." Far from placing human rights above legislation, the Declaration makes them subject to the "purposes and principles" of an undemocratic transnational legislative body where oppressive dictatorships are heavily represented. From a natural rights standpoint,this is a retrogression relative to traditional majoritarian democracy, not an improvement. The issue is of more than just legalistic importance in light of recent UN initiatives such as the ongoing attempt to ban "defamation of religion." If the UN decides that this new norm is one of its "purposes" or "principles," the UDHR will not only permit governments to censor speech that violates it but may actually require them to do so.

II. Does the Universal Declaration Promote the Protection of Human Rights by Nonlegislative Means?

Sen's "second intellectual innovation of the Universal Declaration concerns the instruments that can be used to pursue the ethics of human rights." He claims that the Declaration for the first time allowed for the protection of rights through nonlegislative action, such as advocacy in civil society. However, nonlegislative human rights advocacy long predates the Declaration. Consider, for example, the nineteenth century antislavery movement, which made extensive use of the kind of "public discussion, social monitoring, investigative reporting, and the functioning of the media as a forum for news and comments" that Sen claims was an "intellectual innovation" of the Declaration.

Moreover, as noted above, Article 29 of the Universal Declaration gives repressive governments a wide range of rationales for suppressing individual freedom and those civil society organizations that dare to criticize their human rights records. For example, if governments decide that such organizations are inimical to "morality, public order [or] the general welfare," Article 29 justifies their suppression. And if they undercut the "purposes and principles of the United Nations," such suppression is not only permitted but arguably required.

I don't mean to suggest that the Universal Declaration actually leads to a net increase in repression. Most dictatorships would probably repress even without it. However, its provisions certainly don't alleviate it.

III. "Universality" and the Dirty Hands of the Declaration's Drafters.

Sen also argues that the Declaration was an advance over previous human rights law because of its supposedly greater universality:

[Another] remarkable feature of the Universal Declaration is its universal coverage: it applies to everyone in the world, without exception. This was a serious issue in the interpretation of rights following the American Declaration of Independence, since independence was fought and won on behalf of all even as the application of many of the rights remained for a long time confined to white people. Indeed, it is the non-inclusive character of the American Revolution that led Mary Wollstonecraft, the radical thinker, to make an enigmatic remark about Edmund Burke, who supported the American Revolution: "On what principle Mr. Burke could defend American independence, I cannot conceive." What could the revolutionary Wollstonecraft have meant in criticizing Burke, in many ways the father of British conservatism, for his support for the American Revolution? She was of course talking about the dubious viability of a human right from which an entire American population, the population of slaves, was excluded. The U.N. Declaration speaks up powerfully against any kind of double standard, and it is in many ways the watershed event in the recognition that universal coverage is essential for global ethics in the contemporary world.

Sen is certainly right to criticize the American Founders for failing to live up to their own principles, especially with respect to slavery. But it's hard to understand why he thinks the Universal Declaration is an improvement in this regard. After all, the Declaration was enacted in 1948, and its content heavily influenced by Stalin's Soviet Union and its allies. Stalin, of course, was one of the greatest mass murderers in world history, and his regime was guilty of many other human rights violations as well, including extensive use of slave labor on a much larger scale than in the Founding-era US. The Stalin-era Soviet Union also deported and partially exterminated numerous ethnic groups, such as the Crimean Tatars. The non-communist governments that helped produce the Universal Declaration were not nearly as egregious as their communist coauthors. But most of them - including a still-segregationist US - were hardly paragons of virtue either.

The fact that Stalin's minions played a major role in drafting the Declaration does not in and of itself prove that it is a bad document. Even the most evil regimes can occasionally do good. However, the nature of the Soviet regime is definitely relevant by Sen's implicit standards for judging human rights documents, which devalues the American Declaration of Independence because of the wrongs committed by its framers. Moreover, the USSR really did influence the content of the final draft for the worse. As John McGinnis and I discuss in this article (pg. 28), the Soviets prevented the inclusion of protection for the right to form political parties in order to legitimize their own one-party state, watered down protection for private property rights, and - most importantly - facilitated the inclusion of a "right" to suppress speech that constitutes "incitement" to "discrimination" (Article 7 of the Declaration). The latter has become a rationale for numerous proposals for censorship, including the movement to ban "defamation of religion" discussed above. As co-conspirator Eugene Volokh has often pointed out, Article 7 and other similar international law "hate speech" norms are a potentially serious threat to civil liberties.

If the universality of the Declaration of Independence is undercut by the moral failings of its authors, the same point applies with vastly greater force to the Universal Declaration.

Perhaps Sen merely means to say that the Universal Declaration was an advance because it is universalist in its wording, regardless of the intentions of its drafters. However, the same can be said for the Declaration of Independence and Constitution, which also make no explicit racial, religious, or ethnic distinctions.

Finally, Sen argues that the Universal Declaration represents an important advance over previous human rights documents because it incorporates "positive" socioeconomic rights such as the right to employment and state-provided welfare programs. I'm not going to give a complete rebuttal to this argument here. To do so would require recapitulating the entire longstanding debate between free market advocates and their opponents. Here, I will only note that the case for these rights is not nearly as open and shut as Sen suggests. To the extent that the inclusion of positive rights in the Declaration serves to legitimate government control of health care, welfare, and education, it might actually reduce the quality of their provision, for reasons that I elaborated in my recent post on the dangers of expanding government power. Nevertheless, I'm actually less critical of Sen on this point than on the others. The Declaration's positive rights provisions are vaguely enough worded that they need not necessarily be interpreted to mandate provision of these rights by the government, as opposed to free markets and civil society. Moreover, I am not as categorical as some of my fellow libertarians in opposing all state-imposed redistribution to the poor. At least in principle, I think that some redistribution to those genuinely unable to provide for themselves is defensible.

My overall verdict on the Universal Declaration is far more negative than Sen's. Some of the rights enumerated in the Declaration are eminently defensible, such as the right of freedom of association. These, however, are offset by the Declaration's more dubious articles, such as Articles 7 and 29 (which undercuts the impact of the Declaration's beneficial provisions by giving states easy justifications for their violation). I would not say that the Universal Declaration has had a significant negative impact on human rights. But Sen's claims of a massive positive impact are at best greatly overstated.

The UN Human Rights Council Resolution on "Defamation of Religion" and the Influence of Repressive Regimes on International Human Rights Law:

Last week, the United Nations Human Rights Council adopted a resolution supporting the suppression of speech that "defames" religion. The resolution is not considered to be binding international law in and of itself, but many experts claim that such resolutions should be considered in determining what counts as "customary international law."

The substantive weaknesses of the resolution are fairly obvious. In any society where people advocate public policies based at least in part on religious reasoning, free political debate is impossible unless opponents have the right to criticize that reasoning. Even when adherents of a given religion do not seek to use the power of the state to impose their views, open debate over the merits of those views is vital. For example, when the Catholic Church claims that the use of contraceptives is forbidden by God (but does not argue that contraception should be forbidden by the state), skeptics should be able to reply by arguing that the Church has misinterpreted God's will or even that there is no God in the first place.

The UN Human Rights Council resolution also exemplifies a crucial procedural weakness of international human rights law: the extensive role of repressive authoritarian states in determining its content. Most of the nations that voted for the Human Rights Council resolution are oppressive dictatorships, whereas most liberal democracies opposed it. As I explained in this post, the same thing happened when a similar resolution passed the UN General Assembly in 2007. Obviously, authoritarian regimes like the resolution because they can use it to suppress criticism of religions they seek to promote. For example, the present resolution was sponsored and promoted by the Organization of Islamic Countries; most OIC members are dictatorships that have Islam as their official religion and they have an obvious interest in suppressing critics of Islam or even advocates of more liberal interpretations of Islam that view it as compatible with individual freedom and democracy.

To the extent that the content of human rights law is influenced by the very sorts of governments most likely to violate rights, that content is likely to do more to support their repressive activities than curb them. Unfortunately, that problem is far from limited to this particular resolution. As John McGinnis and I discuss in this forthcoming article, it afflicts many other aspects of international human rights law as well. Even the Universal Declaration of Human Rights, usually considered the most important international human rights treaty, includes repression-justifying provisions inserted at the behest of Joseph Stalin and his communist allies. Indeed, Article 7 of the UDHR (inserted because of Soviet influence) can easily be used to justify banning "defamation of religion," since it forbids speech that incites "discrimination" and any speech critical of a religious doctrine might inspire "discrimination" against that religion's adherents.

The fact that the content of international human rights law is heavily influenced by oppressive governments does not prove that all of that content is harmful. Brutal dictatorships might sometimes support beneficial legal norms, and certainly democratic governments often support harmful ones. However, as John and I explain in our article, it does suggest that we should be wary of allowing such international law to displace the domestic law of liberal democracies. Although there will be exceptions, on average the domestic human rights law of democratic states is likely to be far better than international human rights law whose content has been heavily influenced by repressive regimes.

Vaclav Havel on the UN Human Rights Council:

Few people have greater moral authority to write about human rights issues than Vaclav Havel, the former president of the Czech Republic. In the 1970s and 80s, he led the dissident movement in then-communist Czechoslovakia, spending several years in prison under brutal conditions. Later, as president, he helped manage Eastern Europe's most successful transition to democracy and free markets. As a bonus, Havel also wrote The Power of the Powerless, perhaps the best book on how repression operates in a totalitarian state. Thus, it's worth paying attention to his recent New York Times op ed criticizing the United Nations Human Rights Council:

Governments seem to have forgotten the commitment made only three short years ago to create an organization able to protect victims and confront human rights abuses wherever they occur.

An essential precondition was better membership. The council's precursor, the United Nations Commission on Human Rights, was folded in 2006 mainly because it had, for too long, allowed gross violators of human rights like Sudan and Zimbabwe to block action on their own abuses.

The council was supposed to be different. For the first time, countries agreed to take human rights records into account when voting for the council's members, and those member-states that failed to, in the words of the founding resolution, "uphold the highest standards in the promotion and protection of human rights" would find themselves up for review and their seats endangered. For victims of human rights abuses and advocates for human rights worldwide, the reforms offered the hope of a credible and effective body.

Now, it seems, principle has given way to expediency. Governments have resumed trading votes for membership in various other United Nations bodies, putting political considerations ahead of human rights. The absence of competition suggests that states that care about human rights simply don't care enough. Latin America, a region of flourishing democracies, has allowed Cuba to bid to renew its membership. Asian countries have unconditionally endorsed the five candidates running for their region's five seats — among them, China and Saudi Arabia.

Havel is absolutely right to criticize the UN for electing egregious human rights abusers to the Council. Not only does the Council fail to protect human rights, it actually promotes repression by passing resolutions such as the recent one calling for censorship of speech that "defames" religion.

The difficulty here goes deeper than the moral failings of individual states that "don't care enough," highlighted by Havel. The fundamental problem with the Council - and the entire UN system - is structural. Most of the UN's member states are either oppressive dictatorships themselves or dubious quasi-democracies - states like Venezuela and Russia that retain some democratic processes but also routinely resort to repression against political opponents. Such governments have an obvious interest in blocking the creation of a UN body that might actually curb their abuses - especially if those abuses help their governments stay in power by crushing opposition movements. Havel rightly criticizes democratic states for not doing more to oppose the election of authoritarian human rights abusers to the Council. But there are limits to how much democracies can do to influence UNHRC elections so long as the authoritarians and pseudo-democrats continue to outnumber them. As long as the UN's membership remains as it is, expecting the UN to create a human rights body that actually protects human rights is much like expecting a committee of foxes to guard a henhouse against themselves.

This structural flaw of the UN Human Rights Council is just one facet of the more general problem of the influence of repressive nondemocratic regimes on international human rights law. As John McGinnis and I discuss in this forthcoming article, that influence is broad and pervasive. Even the Universal Declaration of Human Rights, generally considered the most important international human rights treaty, contains repression-justifying provisions inserted at the behest of totalitarian states such as the Soviet Union.

McGinnis and I argue that this structural shortcoming of international human rights law should lead us to be wary of allowing that law to override the domestic law of liberal democracies. We must also be realistic about the very low likelihood that international human rights law will do much to curb repression in authoritarian states anytime soon.