The Declaration of Human Rights in Postmodernity

I. Introduction

For more than half a century, the Universal Declaration of Human Rights, proclaimed by the United Nations in 1948, has played an extraordinary role in the history of mankind. ¹ It codified the hopes of the oppressed, supplying authoritative language to the semantics of their claims. It offered a legislative basis to the political struggles for liberty and led national constitutions to transform the notion of citizens' rights into positive law. It subverted the rules of the Westphalian system of international relations, in which sovereign states were the only actors, by conferring upon the human person the status of a subject of law beyond domestic jurisdiction. It launched a new and profuse juridical discipline, the International Law of Human Rights, substituting erga omnes obligations for the criterion of reciprocity. It set parameters for evaluating the legitimacy of any government, replacing the efficacy of force by the force of ethics. It mobilized consciences and agencies, both governmental and nongovernmental, for international solidarity action, thereby outlining the embryo of a transcultural civil society that may one day develop into a real, richly diverse world community.

It is true that none of those achievements took place without dispute. At its beginning, not even those states that drafted the Declaration looked seriously committed to abide by it. This was demonstrated by their resistance to accord an obligatory nature to the document. In contrast to the mere two and a half years that negotiations lasted for the proclamation of the Universal Declaration, the two formal covenants that would ensure compulsory character to the rights it enshrined--within and among state-parties--took thirty years to come into force. ² Even today, neither covenant has received the adherence of every existing country. In light of such political reluctance and other concrete shortcomings, the fact that the 1948 Declaration, a piece of recommendatory soft law, did have an immense, historical outreach might seem, at least, intriguing. Far more paradoxical is the situation it faces at this end of the century.

Although human rights basically received the stamp of universality at the Vienna Conference of 1993, ³ when the end of the Cold War appeared to afford an unprecedented opportunity for their worldwide strengthening, multiple factors create a current threat to them. Some of these factors have always existed and will tend to exist forever. Arising from power politics, arbitrary authority, deep-rooted prejudices, and economic exploitation, such threats are neither old nor new. They are virtually eternal, having changed only in intensity and shape. Others, however, are typical of contemporary times, though not necessarily exclusive of the present decade. More difficult to face than the traditional challenges, the new factors that oppose human rights are insidious and effective. They can be found both in the side-effects of economic globalization and in the prevailing anti-universalistic stance of postmodernity. It is to these new factors that this essay turns its focus.

II. The Question of Universality

Heir to the European Enlightenment as much as the United Nations Organization itself, the 1948 Declaration makes clear from the start its modern, universalistic doctrine. As expressed in its Preamble, the whole document results from the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family" as "the foundation of freedom, justice and peace in the world." ⁴ In order that member states fully implement the commitment to promote universal respect for human rights--a commitment they had pledged three years before when signing the Charter of the United Nations in San Francisco--the Preamble stresses the importance of "a common understanding of these rights and freedoms." ⁵

Thirty articles follow the Preamble, although not all of them are truly operative. Article 1 is doctrinal: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a...