Indivisible Human Rights: A History

Chapter 2: Antecedents of the Universal Declaration

Chapter 2 Antecedents of the Universal Declaration Any history of indivisible human rights would be impossible to convey without exploring the centrality of the 1948 Universal Declaration of Human Rights to that history. The contemporary rhetoric of indivisibility draws significant normative support from the organic unity of the Universal Declaration—that it includes civil, political, economic, social, and cultural rights while drawing no explicit distinctions between these categories (although they are there). Johannes Morsink argues that the drafters “meant for us to interpret each article in the Declaration in light of all the others, but especially in light of other articles that touch on the same topic.”1 He continued: “Many of these connections and linkages depend on the principle that if one has a right to X, and Y is necessary to get X, then one also has a right to Y. Often an old right like freedom of association is needed to implement a new right such as that of forming a trade union. . . . But just as often a new right is needed to realize an old one, as when the new right to an education is essential to the implementation of the old right to participation in government.”2 The language of indivisibility is centrally concerned with the question of economic and social rights and their relationship to civil and political rights. But indivisibility as a political rhetoric of human rights did not emerge until the Commission on Human Rights began the process of translating the principles embedded in the Universal Declaration of Human Rights into legally binding treaty law, and the question of categories became more significant. But at the time, as Morsink makes abundantly clear, the drafters of the Universal Declaration dismissed the relative importance of old versus new rights, and purposely crafted the document to make clear to the average reader that each article should be interpreted in light of the others. “This organic character of the text applies to both how it grew to be what it now is, as well as to a deeper interconnectedness of all the articles.”3 Because Morsink and others4 have carefully researched the actual drafting of the Universal Declaration and addressed the inclusion of 12 Chapter 2 economic and social rights as part of a unified catalogue of human rights, it would be redundant to recreate that work here. Still, we should ask how, when, and in what manner economic and social rights came to be included in the general pantheon of guaranteed rights, especially in terms of their articulation as human rights, which were to be protected and promoted in the postwar international order. Many accounts of the Universal Declaration and its drafting reify the magnificence of the Declaration’s organic unity and blame the compromise of that unity—two separate Covenants—on Cold War politics and especially the myth of Western opposition to economic and social rights.5 I discuss these controversies in more detail in Chapters 4, 5, and 6. What is important to realize here is that the Universal Declaration of Human Rights is, and was intended to be, a statement of principles, as important as that was and is. The Declaration punts on the question of the origins of rights, espouses no particular philosophy of rights, and creates no legal obligations for states. Those questions would have to be settled later. And they were, in debates that were heated and sometimes acrimonious. The U.N. Commission on Human Rights did not start drafting a bill of rights from scratch. Proposals for bills of human rights that would be the object of international protection and promotion had been in circulation since at least 1929, with the number of proposals reaching a zenith toward the end of World War II. All these proposals included expressions of economic and social rights together with civil and political rights, without making any reference to their organic unity or indivisibility . In this chapter I focus my attention on how economic and social rights came to be considered central to an ideal of the liberal-democratic welfare state. How would a state that “recognizes” these rights fulfill duties and obligations for their protection and promotion? The other side of the coin—embodiment of a full catalogue of human rights including economic and social rights through international means and mechanisms—is explored in the next chapter. Rather than constructing a history that must have a point of origin, I work backward from what is relatively well known and uncontested. We...