Though I am a legal comparatist, I must admit that my own interest in the Declaration and its origins was awakened only rather recently—when I represented one of the strongest contemporary supporters of the UDHR, the Holy See, at the U.N.'s Beijing Women's conference in 1995.

One of the main tasks of that conference was to produce a Declaration. Thus, I was more than a little puzzled to see delegates from the European Union countries leading a charge to eliminate cross-references to several key provisions of the 1948 Declaration. One of the main targets of these attacks was the freedom of religion--along with the Declaration's language on parental rights, marriage, motherhood, the family, and human dignity!

The reason for attacking these venerable concepts, apparently, was that they were thought to be in tension with women's rights. Ironically, the delegates from the European Union seemed to be unaware that the language they wanted to eliminate was present not only in the UDHR, but in most of their own constitutions!

That experience aroused my interest in the UDHR for three reasons: First, as head of an ethnically diverse delegation drawn from five continents and under instructions to try to be a voice for women who are poor and marginalized, I was impressed by the Declaration's vision of freedom linked to the sense of one human family for which all bear a common responsibility. In the global economy where poor people and nations risk being shunted aside and forgotten, the UDHR stands as a powerful reminder that productivity and efficiency are not the most important values.

Secondly, it was apparent that it was precisely this unified vision that was under siege—openly attacked by cultural relativists who challenge its universality, and covertly undermined by various interest groups who wish to smuggle their own agendas into the canon of universal rights.

And finally, I noted with regret that many of the ideas about rights that were spreading fastest seem to be American exports, but not the best that have emerged from centuries of American reflection on freedom and dignity. I am referring here to the tendency to regard one or another right as absolute without considering its relation to other rights—or to constitutional government and the rule of law—or to the responsibilities that are often correlative with rights. This tendency, as we have found in the U.S., encourages the appropriation of rights language by special interests with the attendant risk of trivializing core freedoms. All of these problems are magnified in international settings where institutions operate far from public scrutiny and without democratic participation.

The desire to know more about the document that was at the center of these developments drew me into the study of its framing. And, as I read the 50-year-old records, I found them illuminating in relation to two issues that concern all of us who care about religious freedom: (1) the charge that the UDHR cannot serve as "a common standard" for all nations and cultures because it is a "western" creation, and (2) the asserted tension between freedom of religion and other important rights, or would-be rights.

A "Western" Document?

Let me give you an example of the flavor of the first critique. At a recent Harvard symposium on the Declaration, Professor Makau Mutua described the Declaration as an arrogant attempt to universalize a particular set of ideas and to impose them upon three-quarters of the world's population who were not represented in its creation. Mutua, who was born in Kenya, said that "Muslims, Hindus, Africans, non-Judeo Christians, feminists, critical theorists, and other scholars of an inquiring bent of mind have exposed the Declaration's bias and exclusivity." From this point of view, the UDHR is an instrument of cultural imperialism, inapplicable to "non-western" cultures.

Here is what I found when I tried to get to the bottom of that claim:

The charge that the UDHR is a "western" document is based mainly on two facts: (1) many peoples living in non-Western nations or under colonial rule were not represented in the United Nations in 1948, and (2) most of the Declaration's rights first appeared in European and North or South American documents. Those statements are accurate, but how do they bear on the Declaration's aspiration to universality?

On the issue of representation, it is true that in 1948 large parts of Africa and a number of Asian countries remained under colonial rule. On the other hand, there was much diversity among the 58 member states. The largest group of countries was the Latin American contingent—21 of 58 U.N. members. There were six members from Asia (giants like China, India, and Pakistan, plus Burma, the Philippines, and Siam). Islamic culture was predominant in nine nations (Afghanistan, Egypt, Iran, Iraq, Pakistan, Saudi Arabia, Syria, Turkey, Yemen). Three countries had large Buddhist populations (Burma, China, Siam).

The 18-member Human Rights Commission that actually prepared the Declaration over a two-year period was chosen with a view toward cultural and ideological variety. Among its most influential and independent members were the Nationalist Chinese delegate Peng Chun Chang who was a prominent Confucian philosopher; Lebanon's Charles Malik, a Christian Arab who was chief spokesman for the Arab League; Carlos Romulo of the Philippines who had won a Pulitzer prize before the war for his articles criticizing colonial regimes in Asia; Hernan Santa Cruz of Chile, the Commission's chief proponent of social and economic rights; and Mrs. Hansa Mehta, an Indian legislator who had been a fiery crusader against British colonial rule and a pioneering advocate of women's rights.

It is often said by the Declaration's critics that the educational backgrounds or professional experiences of some of these people—especially those who had studied for a time in Europe or the United States--"westernized" them. But their performance in the Human Rights Commission suggests something rather different. Not only did each contribute significant insights from his or her own culture, but each possessed an exceptional ability to understand other cultures, and to "translate" concepts from one frame of reference to another. Those skills, which can hardly be acquired without substantial exposure to traditions other than one's own, are indispensable for effective cross-cultural collaboration.

Over the two-year period when the UDHR was drafted and debated, there was remarkably little disagreement regarding its basic substance. A rare exception was Article 18 on religious freedom where controversy centered on the specification of the right to change one's religion. Saudi Arabia targeted that provision as "western", but the other eight predominantly Muslim countries voted for it. An eloquent speech by Pakistan's Zafrullah Khan seems to have been influential. Khan cited a passage from the Koran for the proposition that faith could not have an obligatory character: "Let him who chooses to believe, believe, and him who chooses to disbelieve, disbelieve." He pointed out that Islam was a proselytizing religion and said that it recognized the same right of conversion for other religions, though it had objections to Christian missionary work when that work assumed a political character.

So, on the issue of representation, I conclude that the claim that the world's cultures were inadequately represented has merit where sub-Saharan Africa is concerned, but that it ignores a very substantial Asian, Islamic and Arabic presence and participation. Not every country in the world had its say, but many did, and their response suggests that a few basic practical concepts of human rights do indeed transcend geography and culture.

But what of the claim that the UDHR's rights are not universal because they were drawn from "western" sources? There is no doubt that most of the Declaration's provisions were derived from existing and proposed constitutions and rights instruments, that is, mostly from North and South American and European models. And it is also the case that the initial elaboration of these ideas about human freedom and dignity as "rights" was a European phenomenon. But what are we to make of those facts? Does the origin of the Declaration's rights endow them with a genetic taint that prevents them from being "universal"? One might think the question should be whether the idea is a good one, rather than who had the idea first. Besides, when a legal idea is adopted and internalized, for how long and in what sense does it still "belong" to its country of origin? And what if the ideas were widely held, even though the characterization of them as rights was not?

To my mind, four facts tend to undercut the attacks on the UDHR based on its proximate sources: First, most of the countries that were not represented in the U.N. in 1948 have since adopted bills of rights resembling the Universal Declaration. Second, most of them have ratified the two 1966 U.N. Covenants that were designed to give effect to the Declaration's principles. Third, most of them approved the 1993 Vienna Human Rights Declaration that incorporated and reaffirmed the Universal Declaration. It is hard to dismiss these subsequent acts as mere vestiges of the colonial mentality.

The fourth reason for doubting the validity of the "western" charge is the growing body of evidence that where the most basic human rights are concerned, cultural diversity has been greatly exaggerated. That, in fact, was the conclusion of a multicultural group of philosophers consulted by UNESCO in 1947 on the question of whether any rights could really be said to be universal. The group, which included such notables as Jacques Maritain and the Confucianist Chung-shu Lo, sent a questionnaire to philosophers and religious leaders the world over, asking their opinions on that issue, and what ideas they thought were most important to include in a universal declaration.

From the seventy responses they received, they gathered that while the formulation of some basic ideas about human decency as rights was originally European, the ideas themselves were widely shared in the world's major cultural and religious traditions. Here, for example, is what Chung-sho Lo said about China. He explained that the absence of formal declarations of rights did not signify "that the Chinese never claimed human rights or enjoyed the basic rights of man":

There was no open declaration of human rights in China, either by individual thinkers or by political constitutions, until this conception was introduced from the West….[However], the idea of human rights developed very early in China, and the right of the people to revolt against oppressive rulers was very early established….A great Confucianist, Mencius (372-289 B.C.), strongly maintained that a government should work for the will of the people. He said: ‘People are of primary importance. The State is of less importance.'

In a similar vein, Indian political scientist S.V. Puntambekar wrote that great Hindu thinkers had "propounded a code, as it were, of ten essential human freedoms and controls or virtues necessary for good life": five social freedoms ("freedom from violence, freedom from want, freedom from exploitation, freedom from violation and dishonor and freedom from early death and disease," and five individual virtues ("absence of intolerance, compassion or fellow-feeling, knowledge, freedom of thought and conscience, and freedom from fear, frustration or despair").

The Bengali Muslim poet and philosopher Humayin Kabir sounded a universalist note in writing about human rights and the Islamic tradition. Kabir pointed out that early Islam had "succeeded in overcoming distinction of race and colour to an extent experienced neither before nor since." In the world today, he continued, "The first and most significant consideration in framing any charter of human rights…is that it must be on a global scale….Days of closed systems of divergent civilisations and, therefore, of divergent conceptions of human rights are gone for good." The "fundamental flaw in the Western conception of human rights," he said, was not in the idea but in the frequent failure to live up to it.

All in all, the results of the UNESCO survey were encouraging: somewhat to the UNESCO group's surprise, the lists of basic rights and values submitted by their far-flung correspondents were broadly similar. That led the philosophers to say, in their final report, that several practical concepts constituted "a sort of common denominator" among widely separated ideologies. But they harbored no illusions about how deep the agreement they had discovered went. Maritain liked to tell the story of how a visitor at one meeting expressed astonishment that champions of violently opposed ideologies had been able to agree on a list of fundamental rights. The man was told: "Yes, we agree about the rights but on condition no one asks us why."

Maritain and his colleagues did not regard this lack of consensus on foundations as fatal. The only feasible goal for the U.N., he maintained, was to achieve agreement "not on the basis of common speculative ideas, but on common practical ideas, not on the affirmation of one and the same conception of the world, of man, and of knowledge, but upon the affirmation of a single body of beliefs for guidance in action." If there are some things so terrible in practice that virtually no one will publicly approve them, and some things so good in practice that virtually no one will oppose them, a common project can move forward without agreement on the reasons for those positions.

The UNESCO report was duly forwarded to the Human Rights Commission, but I can find no evidence in the U.N. transcripts that the drafters of the UDHR paid the slightest attention to the philosophers' findings. The only reference in fact is a remark by the Belgian commissioner that UNESCO was intruding on the turf of the Human Rights Commission.

Whether or not influenced by the philosophers, however, the Commissioners had come to the same conclusion. There is little doubt about how the principal drafters of the Universal Declaration would have responded to the charge that it was a "western" document. What was crucial for them, indeed what made universal human rights possible, was the similarity among all human beings. Their starting point was the simple fact of the common humanity shared by every man, woman and child on earth--a fact that, for them, put linguistic, racial, religious and other differences into their proper perspective. In fact, they saw strong insistence on racial and cultural differences as one of the worst evils of Western colonialism and the recently defeated National Socialist regime.

At the Harvard symposium I mentioned earlier, a Chinese dissident, Xiao Quiang, took a position that was very much in the spirit of the framers. Quiang departed from his prepared remarks to respond to Professor Mutua's charge that the Declaration was an arrogant attempt to impose "Judeo-Christian" values on non-Western peoples. Quiang said he had often heard such charges in China—and Burma, and North Korea, and Indonesia. He agreed that the human rights idea was Western in the sense of its origin. Communism, he noted, was a Western idea, too. But had Professor Mutua considered what a luxury it was to be able to voice his opinions on that subject freely? he asked. Turning to Mutua, he said, "If you were to voice dissent from the prevailing view in China, you would end up in jail, and there you would soon be asking for your rights, without worrying about whether they were `American' or `Chinese'."

The Deconstruction of the Declaration

After having heard my extended effort to refute the charge of "western-ness", you may be surprised to hear me say now that I think Mutua and others are right to be concerned about human rights imperialism. Where they are mistaken, I believe, is in targeting the 1948 Declaration rather than the host of special interest groups that seek to universalize their agendas in the name of human rights.

This brings me to the assaults on the UDHR emanating from the West—or, more precisely, to the efforts to capture the moral force of the Declaration for various political ends. I am referring here to such things as the tendency of many governments and NGOs to ignore some rights at the expense of others, as we saw at Beijing, and to various attempts to redefine special interests as fundamental rights.

The deconstruction of the Declaration has been facilitated by three widespread assumptions that my research indicates would have been quite foreign to the framers of the Universal Declaration: first, that the Declaration mandates a single approved model of human rights for the entire world; second, that the only alternative to homogeneity is to accept the cultural relativist view that no rights are universal; and third, that the UDHR is a kind of menu from which one can pick and choose according to one's interests.

So far as the framers were concerned, universality did not mean that universal rights had to be inculturated in the same way everywhere; pluralism did not mean complete relativism; and the Declaration itself was not a menu, but an integrated document that must be read and respected as a whole.

As evidence that the document's "common standard of achievement" was never meant to produce completely uniform practices, the records contain dozens of statement like the speech of P. C. Chang to the General Assembly urging adoption of the UDHR. The world had seen enough, he said, of that sort of uniformity in the efforts of colonial powers to impose on other peoples a standardized way of thinking and a single way of life. Uniformity of that kind could only be achieved, he added, by force or at the expense of truth.

What Chang and the other major architects of the Declaration did expect was that its principles could be brought to life in different societies in a legitimate variety of ways. That is evident from the leeways they afforded in the text for different modes of interpreting, weighting, and implementing various rights. The leeway is small, of course, in the case of the rights not to be tortured, enslaved, or otherwise subjected to aggression. But the provisions regarding marriage and family, property, freedom of expression, democratic governance, and social security all leave fairly broad scope for experimentation and adaptation to local conditions.

So far as the inevitable tensions among rights were concerned, the framers expected they would be handled by giving each right as much scope as possible within the overall framework of respect for human dignity—not by treating some rights as trumps and reading others out of the canon.

In sum, the framers' aim was modest--to proclaim a "common standard" that was capable of giving some guidance to societies as they choose among a wide range of alternative policy options. They hoped to promote a peaceful competition among nations as each strove to bring the common standard to life.

Unfortunately, however, the charge of cultural imperialism begins to sound more plausible as governments and interest groups deploy the language of human rights in the service of their own economic, political and military ends. That process, alas, began almost as soon as the ink was dry on the document. All through the Cold War years, the United States and the Soviet Union treated the Declaration as an arsenal of political weapons. Each yanked its favorite provisions out of context and ignored the rest. Ironically, the more the non-binding Declaration showed its moral force, the more nations and interest groups sought to cast their agendas or justify their actions in terms of human rights. Nearly every international dispute today sooner or later implicates human rights; nearly every exercise of military force claims some humanitarian justification. What began as expediency hardened into habit, until the sense of an integrated body of principles was lost. Today, the Declaration is almost universally regarded as a kind of menu of rights from which one can pick and choose according to taste. That cafeteria-style approach of course undermines the Declaration's claim to universality and facilitates further opportunistic uses.

A skeptical person who has patiently endured this discussion of how certain issues were viewed by the framers of a 52-year-old document might well ask at this point why a non-binding document like the Universal Declaration should matter, when all is said and done.

My own judgment on the question is mixed. When I began this project five years ago, I would have described my view of the UDHR as one of skepticism tinged with admiration. Now I would say that I view it with admiration tinged with skepticism. Why admiration? Besides what I have already mentioned, I found myself becoming as interested in the framers as in the Declaration itself. The members of that first Human Rights Commission were a remarkable group of men and women who overcame enormous obstacles—linguistic and cultural misunderstandings, political differences, personal rivalries—to produce a short statement of basic principles with a plausible claim to universality. It is hard to remain unmoved, for example, by the cooperation at the height of the Palestine crisis in 1948 between Charles Malik, the spokeman for the Arab League, and Rene Cassin, a French Zionist who lost 29 relatives in concentration camps. (And it is hard to resist unfavorable comparison with the diplomats of today.) I see the story of the efforts of the first Human Rights Commissioners as encouraging to those of us who want to believe that human affairs are not forever destined to be determined by force and accident, but that they can be affected to some extent by reflection and choice.

Why skepticism, then? I remain concerned about the way the UDHR has been pulled apart and politicized, by its friends and foes alike. I am troubled, in addition, about the tendency of persons and nations that are well-disposed toward human rights to think of rights violations only or mainly in terms of the most flagrant and violent assaults on human dignity—violations of five or six articles out of thirty. And by the relative indifference of the human rights industry to freedom of religion.

Those who think of human rights in such limited terms (including the major human rights organizations) tend to think of implementation mainly in terms of criminal punishment, often at the international level, and, in extreme cases, through military force.

The UDHR, unlike the Nuremberg Principles, the Genocide Convention and other U.N. human rights covenants, was mainly addressed to the difficult long-term task of transforming culture. Its framers believed that while criminal law is necessary to punish and deter offenses against order and decency, the foundations of a decent and orderly society are the habits and opinions of its members, reflected in appropriate institutions.

To put it another way: culture is prior to law. And since religion is at the heart of culture, it is ominous when freedom of religion falls off the screen of self-styled defenders of human rights.

I conclude, therefore, with the thought that one can say of human rights what Tocqueville said almost two centuries ago about democracy: the idea is here to stay; the only question is whether it will be conducive to human freedom and dignity—or the instrument of new forms of oppression.

© 2000 The Becket Fund for Religious Liberty
all rights reserved

This paper was presented at a conference entitled "Religious Liberty and the Ideology of the State," in Prague, Czech Republic, in August, 2000. It will be edited for publication. Do not quote without written permission of The Becket Fund.