Knowing the universal Declaration of Human Rights

Notre Dame Law Review

Volumn 73, Issue 5, 1998, Pages 1153-1176

  Glendon, Mary Ann ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 11844296821     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (101)

1. HOWARD LANCER, HUMAN RIGHTS: A DOCUMENTARY ON THE UNITED NATIONS DECLARATION OF HUMAN RIGHTS FEATURING AN INTERVIEW WITH MRS. ELEANOR ROOSEVELT (Folkways Records 1958).
2. HENRY STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 120 (1996).
3. Aryeh Neier observes that "the main impact [of human rights] today comes in curbing abuses by governments that lack geopolitical or economic significance. When human rights abuses occur in countries of first-rank importance, governments and intergovernmental bodies that could have influence pay lip service - at best to the problem." Aryeh Neier, The New Double Standard, FOREIGN POL'Y, Winter 1996-97, at 91.
4. See STEINER & ALSTON, supra note 2, at 269; Lynn Freedman, Reflections on Emerging Frameworks of Health and Human Rights, 1 HEALTH AND HUM. RTS. 314, 329 (1994).
5. See Mary Ann Glendon, What Happened at Beijing, FIRST THINGS, Jan. 1996, at 30, 32.
6. The Vienna Declaration adopted in 1993 at the Second World Conference on Human Rights provides in section 1 (5) that "[a] 11 human rights are universal, indivisible, and interdependent and interrelated."
7. For example, China's Premier Wei Jiang told President Clinton that "concepts on democracy, on human rights, and on freedoms are relative." John F. Harris, U.S.-China Summit on a Tightrope, INT'L HERALD TRIB., Oct. 31, 1997, at 1.
8. See Seth Mydans, Do Rights Come First? Asia and Europe Clash, N.Y. TIMES, Mar. 1, 1996, at A8; Steven Myers, Business Interests Overshadow Human Rights, Survey Results, N.Y. TIMES, Dec. 5, 1996, at A8.
9. See Seth Mydans, Do Rights Come First? Asia and Europe Clash, N.Y. TIMES, Mar. 1, 1996, at A8; Steven Myers, Business Interests Overshadow Human Rights, Survey Results, N.Y. TIMES, Dec. 5, 1996, at A8.
10. See SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE MAKING OF WORLD ORDER 38, 195 (1996).
11. For a developing world perspective, see Amartya Sen, Population: Delusion and Reality, N.Y. REV. OF BOOKS, Sept. 22, 1994, at 62.
12. Genesis 11:1-9.
13. MICHEL VILLEY, LE DROIT ET LES DROITS DE L'HOMME 12-13 (1983).
14. See ALASDAIR MACINTYRE, AFTER VIRTUE 1-21 (1981).
15. Id. at 67.
16. The Committee's report, the questionnaire, and several of the responses are collected with an introduction by Jacques Maritain in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS (UNESCO ed., 1949).
17. Jacques Maritain, Introduction, in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS 10 (UNESCO ed., 1949).
18. Richard McKeon, The Philosophic Bases and Material Circumstances of the Rights of Man, in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS, supra note 16, at 45.
19. Maritain, supra note 16, at 9.
20. Id. at 10.
21. McKeon, supra note 17, at 35.
22. Maritain, supra note 16, at 15-16.
23. Id.
24. McKeon, supra note 17, at 35.
25. Among the most important preparatory materials were an analysis of all existing treatments of human rights at the national level and the draft proposal that became the 1948 Pan-American Declaration of Human Rights and Duties (the socalled Bogota Declaration) sponsored by the regional organization that later became the Organization of American States. The analytical survey was prepared by a Canadian, John P. Humphrey, the permanent head of the Division of Human Rights in the U.N. Secretariat. Cassin acknowledged a debt to Humphrey's "excellent work" in RENé CASSIN, LA PENSEÉE ET L'ACTION 108 (1972).
26. ELEANOR ROOSEVELT, THE AUTOBIOGRAPHY OF ELEANOR ROOSEVELT 315 (1961).
27. See PHILIPPE DE LA CHAPELLE, LA DECLARATION UNIVERSELLE DES DROITS DE L'HOMME ET LE CATHOLICISME 34 (1967).
28. The principal biographies are MARC AGI, RENÉ CASSIN: FANTASSIN DES DROITS DE L'HOMME (1979); and GERARD ISRAEL, RENÉ CASSIN (1990). Among the many key positions held by Cassin after the war were the presidency of the Conseil d'Etat, the presidency of the Ecole Nationale d'Administration, the presidency of the European Court of Human Rights at Strasbourg, and membership on the French Constitutional Council.
29. In his memoirs, Cassin observed: "The study of comparative law is always useful. But when one seeks . . . as in the 1948 Declaration of Human Rights to identify a certain number of common principles concerning the fundamental rights of every human being, comparative law becomes a necessity." CASSIN, supra note 24, at 224.
30. See ISRAEL, supra note 27, at 181. Cassin later recalled his uneasiness when he found, at the first meeting of the Commission, that many of the eighteen delegates had no legal training whatsoever. Cassin, supra note 24, at 105. For a discussion of the continental advantage in legislative drafting, see Mary Ann Glendon, Comment, in ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 95, 95-114 (1997).
31. See MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS 58-62 (2d ed. 1994).
32. CASSIN, supra note 24, at 112-13.
33. See ROOSEVELT, supra note 25, at 317.
34. ROOSEVELT, supra note 25, at 305.
35. Id. at 311.
36. See CASSIN, supra note 24, at 112; see also ROOSEVTLT, supra note 25, at 320.
37. LANGER, supra note 1.
38. For biographical information, see Charles Habib Malik, in CURRENT BIOGRAPHY 410 (Anna Rothe ed., 1948). Though a prominent figure on the international scene throughout the 1950s, Malik always described himself as primarily a philosopher and theologian. He earned his Ph.D. at Harvard University, and taught at Harvard, Beirut University, and Catholic University. Jude P. Dougherty, Charles Habib Malik, in YEARBOOK-1989 237 (American Philosophical Society ed., 1990). A Greek Orthodox Christian, Malik frequently defended Arab and Palestinian views in the U.N. in the early 1950s, but later found himself at odds with Arab leaders on various issues. The 1987 Reuter obituary cryptically reports, "None of Lebanon's Moslem or pro-Syrian politicians or militia leaders mourned Malik's death." Lebanon's Christians Mourn Veteran Diplomat Charles Malik, REUTER LIBR. REP., Dec. 29, 1987.
39. For biographical information, see Charles Habib Malik, in CURRENT BIOGRAPHY 410 (Anna Rothe ed., 1948). Though a prominent figure on the international scene throughout the 1950s, Malik always described himself as primarily a philosopher and theologian. He earned his Ph.D. at Harvard University, and taught at Harvard, Beirut University, and Catholic University. Jude P. Dougherty, Charles Habib Malik, in YEARBOOK-1989 237 (American Philosophical Society ed., 1990). A Greek Orthodox Christian, Malik frequently defended Arab and Palestinian views in the U.N. in the early 1950s, but later found himself at odds with Arab leaders on various issues. The 1987 Reuter obituary cryptically reports, "None of Lebanon's Moslem or pro-Syrian politicians or militia leaders mourned Malik's death." Lebanon's Christians Mourn Veteran Diplomat Charles Malik, REUTER LIBR. REP., Dec. 29, 1987.
40. For biographical information, see Charles Habib Malik, in CURRENT BIOGRAPHY 410 (Anna Rothe ed., 1948). Though a prominent figure on the international scene throughout the 1950s, Malik always described himself as primarily a philosopher and theologian. He earned his Ph.D. at Harvard University, and taught at Harvard, Beirut University, and Catholic University. Jude P. Dougherty, Charles Habib Malik, in YEARBOOK-1989 237 (American Philosophical Society ed., 1990). A Greek Orthodox Christian, Malik frequently defended Arab and Palestinian views in the U.N. in the early 1950s, but later found himself at odds with Arab leaders on various issues. The 1987 Reuter obituary cryptically reports, "None of Lebanon's Moslem or pro-Syrian politicians or militia leaders mourned Malik's death." Lebanon's Christians Mourn Veteran Diplomat Charles Malik, REUTER LIBR. REP., Dec. 29, 1987.
41. See Former Lebanese Foreign Minister Malik Dies, REUTER LIB. REP., Dec. 29, 1987.
42. See Charles Malik, The Challenge of Human Rights, in BEHIND THE HEADLINES, Dec. 1949, at 2.
43. For an account of Roosevelt's subtle but influential role, see JOSEPH P. LASH, ELEANOR: THE YEARS ALONE 56-81 (W.W. Norton & Co. 1972). Cassin remembered her as "a political woman who was sensitive to opinion, and who showed remarkable skill in dealing with Indian and Lebanese philosophers, American statesmen and diplomats, as well as delegates from old Europe and the Eastern world." CASSIN, supra note 24, at 82.
44. ROOSEVELT, supra note 25, at 320.
45. See AGI, supra note 27, at 231.
46. LASH, supra note 40, at 78.
47. Malik, supra note 39, at 1; see also CASSIN, supra note 24, at 233.
48. See Malik, supra note 39, at 1-3.
49. See ROOSEVELT, supra note 25, at 320.
50. See Charles Habib Malik, supra note 37, at 412.
51. See Charles Malik, Human Rights in the United Nations, U.N. BULL., Sept. 1952, at 1.
52. For the reader's convenience, the Universal Declaration appears as an Appendix infra at 1177.
53. For a convincing argument that the clause-by-clause approach is also inappropriate for the Bill of Rights, see Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131 (1991).
54. See AGI, supra note 27, at 317.
55. Franklin Delano Roosevelt, State of the Union Message (Jan. 6, 1941), in 1940 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 663 (1941).
56. One of the first decisions made by the Commission on Human Rights was that the "international bill of rights" it had been asked to prepare should be in the form of a declaration rather than a legally binding treaty or covenant. The international human rights system that grew up subsequently includes many treaties and convenants, including the two 1966 covenants that were adopted to implement the Universal Declaration, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
57. See DE LA CHAPELLE, supra note 26, at 83.
58. See CASSIN, supra note 24, at 213.
59. Here, I follow Cassin's quadripartite division of the body of the Declaration, although it seems to me that other groupings are plausible as well.
60. See AGI, supra note 27, at 326.
61. The Preamble to the 1946 French Constitution stated, "The nation ensures to the individual and the family the conditions necessary to their development," CONST. preamble. Germany's Basic Law of 1949 provided, "Marriage and family shall enjoy the special protection of the state," GRUNDGESETZ [Constitution] [GG] art. 6, ¶ 1.
62. See DE LA CHAPELLE, supra note 26, at 150.
63. See id. at 151.
64. Franklin Delano Roosevelt, State of the Union Message (Jan. 11, 1944), in 1944-45 THE PUBLIC PAPERS AND ADDRESSES OF FRANKLIN D. ROOSEVELT 32 (1950).
65. Charles Habib Malik, Introduction, in O. FREDERICK NOLDE, FREE AND EQUAL: HUMAN RIGHTS IN ECUMENICAL PERSPECTIVE 7, 9 (1968).
66. See LASH, supra note 40, at 62.
67. See STEINER & ALSTON, supra note 2, at 257-58.
68. See CASSIN, supra note 24, at 110.
69. See id. at 110-11.
70. See id.
71. See id.
72. See ROOSEVELT, supra note 25, at 318.
73. Article 22: "Everyone, as a member of society, . . . is entitled to the realisation . . . in accordance with the organization and resources of each State, of the economic, social, and cultural rights indispensable for his dignity and the free development of his personality."
74. See CASSIN, supra note 24, at 111. According to one biographer, such inspired interventions by Roosevelt were frequently prefaced by remarks in which she conceded her interlocutor had a point, and with disclaimers such as "of course, I'm a woman and don't understand all these things." LASH, supra note 40, at 69.
75. See AGI, supra note 27, at 336.
76. See CASSIN, supra note 24, at 111.
77. See ROOSEVELT, supra note 25, at 317.
78. CASSIN, supra note 24, at 10; see also AGI, supra note 27, at 230.
79. CASSIN, supra note 24, at 171.
80. NOLDE, supra note 62, at 70.
81. CASSIN, supra note 24, at 155.
82. LASH, supra note 40, at 81.
83. See Winfried Brugger, Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks from a German Point of View, 42 AM. J. COMP. L. 395 (1994).
84. RICHARD MCKEON, FREEDOM AND HISTORY 56 (1968).
85. Id. at 49.
86. Maritain, supra note 16, at 16.
87. The Investment Aid Case, 4 BVerfGE 7 (1954).
88. Kurt Sontheimer, Principles of Human Dignity in the Federal Republic, in GERMANY AND ITS BASIC LAW: PAST, PRESENT AND FUTURE 213, 215 (Paul Kirchof & Donald Kommers eds., 1993).
89. Maritain, supra note 16, at 16.
90. See CASSIN, supra note 24, at 226.
91. See ISRAEL, supra note 27, at 234.
92. CASSIN, supra note 24, at 170-71.
93. See generally MARY ANN GLENDON, RIGHTS TALK (1991) (especially Chapter 6); Anthony Lester, The Overseas Trade in the American Bill of Rights, 88 COLUM. L. REV. 537 (1988).
94. See generally MARY ANN GLENDON, RIGHTS TALK (1991) (especially Chapter 6); Anthony Lester, The Overseas Trade in the American Bill of Rights, 88 COLUM. L. REV. 537 (1988).
95. Maritain, supra note 16, at 16-17.
96. John Kenton, Human Rights Declaration Adopted by U.N. Assembly, N.Y. TIMES, Dec. 11, 1948, at A1.
97. See McKeon, supra note 81, at 41.
98. See Maritain, supra note 16, at 16.
99. Jacques Maritain, On the Philosophy of Human Rights, in HUMAN RIGHTS: COMMENTS AND INTERPRETATIONS, supra note 16, at 72, 74.
100. MCKEON, supra note 81, at 46, 50.
101. Cf. THE FEDERALIST No. 1 (Alexander Hamilton).