The Drafting of the Universal Declaration of Human Rights

The United Nations describe their foundation as follows: “As World War II was about to end in 1945, nations were in ruins, and the world wanted peace. Representatives of 50 countries gathered at the United Nations Conference on International Organization in San Francisco, California from 25 April to 26 June 1945. For the next two months, they proceeded to draft and then sign the UN Charter, which created a new international organization, the United Nations, which, it was hoped, would prevent another world war like the one they had just lived through” (https://www.un.org/en/about-us/history-of-the-un). On 24 October 1945, the United Nations “came into existence after its Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other signatories” (ibid.).

President Harry Truman (1884-1972) had appointed Eleanor Roosevelt (1884-1962) to the United States delegation to the United Nations in December 1945. “By then, she was well-known in the U.S. and abroad. As First Lady during Franklin D. Roosevelt’s administration from 1933 to 1945, she had championed poverty alleviation, access to education and civil rights, and traveled to the European and Pacific front lines of World War II” (https://www.history.com/news/eleanor-roosevelt-universal-declaration-human-rights). In February 1946, UN Secretary-General Trygve Lie, appointed her to the nuclear commission charged with creating the formal Human Rights Commission (HRC). At the first session of the nuclear commission on April 29, 1946, “Dr. C. L. Hsia, from China, nominated Eleanor Roosevelt to chair the commission. All the delegates promptly endorsed his recommendation.” Eleanor Roosevelt “did not anticipate this responsibility” (ibid.).

In June 1946, “the United Nations Economic and Social Council charged the HRC to draft an International Declaration, a draft covenant, and provisions for the implementation”(https://erpapers.columbian.gwu.edu/eleanor-roosevelt-and-universal-declaration-human-rights). From January 27 to February 10, 1947, the HRC held its first session and established the Drafting Committee. It included representatives of Australia, Chile, France, the Soviet Union and the United Kingdom, in addition to the representatives of China, Lebanon and the United States (http://research.un.org/en/undhr).

Describing the drafting process of the UDHR I use the documents according to their numbering by the UN’s Dag Hammarsköld Library (ibid). Eleanor Roosevelt had been elected chairperson, Peng-Chun Chang (China) had been elected Vice-Chairman and Charles Malik (an Orthodox Christian, philosopher, theologian and diplomat, Lebanon) was chosen to be rapporteur at the first meeting of the Human Rights Commission (E/CN.4/SR.1). John Humphrey (1905-1980) from Canada, international lawyer, Secretary of the Human Rights Commission and Director of UN Secretariat’s Division of Human Rights was given the task of formulating a preliminary draft. He “carried the main responsibility for gathering and analyzing the background documents that informed the Commission's work. His 408-page ‘Documented Outline’ formed the basis for subsequent debates and considerations of the Commission on Human Rights and the Drafting Committee as they drafted the Universal Declaration (http://research.un.org/en/undhr).

Peng-Chun Chang was originally an educator, playwright, and literary critic, who earned a doctorate at Colombia University under the supervision of John Dewey. He was involved in the fight against Japan after it invaded China in 1937, later he was as an ambassador to Turkey and Chile. Being a strong advocate of Chinese culture, he was keenly interested in cross-cultural dialogue. Like Malik, he was concerned to establish greater equality between states (Joe Hoover. Rereading the universal declaration of human rights: plurality and contestation, not consensus. In: Journal of Human Rights. Volume 12, issue 2, 2013. 217-241. 238).

René Cassin was the third major intellectual figure among the drafting committee. Cassin was a secular French Jew who had served as a soldier in WW I before studying law. WW II interrupted his career as a professor of law when he went to England to join De Gaulle’s resistance and served as the general’s chief legal advisor. His support of human rights was influenced by the murder of many family members by the Nazis and his conviction that the French rights tradition, focused on the equal legal standing of all citizens, should be expanded to the international levels (ibid.). Cassin felt that the UDHR must respond to the horrors of WW II, ensure dignity by affirming the oneness of humanity, and guarantee the legal personality of every individual. The unity in human society, society composed of human beings, is the most important thing, which must be placed in our resolution, said Cassin. Every human being normally possesses rights and obligations and, therefore, has legal personality (ibid.).

From 9 June 1947 to 25 June 1947 the 1st session of the Drafting Committee held 19 meetings. Document E/CN.4/AC.1/3, Draft Outline of International Bill of Rights was presented in the first meeting as preliminary draft. The text of the preliminary draft starts suggesting a preamble. The UDHR will also start with a Preamble, and it contains many elements we find already in this preliminary draft. In the Preamble of the UDHR we find again the four freedoms (freedom of speech and religion, freedom from want and fear). Also, the United Nations Charter’s reaffirmation of “the faith in fundamental human rights” gets a paragraph in the Preamble of the UDHR. We find thirdly in the preamble of the preliminary draft the claim of the four principles “1. that there can be no peace unless human rights and freedoms are respected; 2. that man does not have rights only; 3. That he owes duties to the society of which he forms part; 4. that man is a citizen both of his state and of the world; that there can be no human freedom or dignity unless war and the threat of war is abolished”( E/CN.4/AC.1/3). Principles 1 and 4 are realized again in the Preamble of the UDHR. “Duties” as the principles 2 and 3 will not get mentioned in the later Preamble of the UDHR. After long debates in the HRC we find the claim of “duties” of the individual person to the “community” in Article 29, the penultimate article of the UDHR. “Duties” are particularly important to the Chinese representatives in the Drafting Committee and HRC. Mr. Wu from China already remarked 18 June 1947, in the ninth meeting of the first session of the Commission: “It is a question of establishing the rights of the human being and at the same time demanding his acceptance of the corresponding obligations” (E/CN.4/AC.1/SR.9 page 5).

The main part of the preliminary draft consists of forty-eight articles outlining individual human rights. The UDHR finally counts 30 articles. The differences between the preliminary draft and the final UDHR reflect the contradicting interests of the capitalist worldview and the socialist one as they emerge in the aftermath of World War II. Article 21 of the preliminary draft claims: “Everyone has the right to establish educational institutions in conformity with conditions laid down by the law.” I do not find a corresponding claim in the UDHR. Article 22 of the preliminary draft claims: “Everyone has a right to own property. His right to share in the ownership of industrial, commercial and other profit-making enterprises is governed by the law of the State within which such enterprises are situated. The State may regulate the acquisition and use of private property and determine those things that are susceptible of private appropriation. No one shall be deprived of his property without just compensation.” The compromise on property between the capitalist and the communist way of organizing an economy we finally read in article 17 of the UDHR: “(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property.”

Other the preliminary draft, the Secretariat of the Human Rights Commission presented many other documents to the Drafting Committee. The first addendum (E/CN.4/AC.1/3/Add.1) in 410 pages contains observations from the members of the Commission on Human Rights, “draws relationships with drafts of other international declarations and proposals submitted to the Commission and outlines the relationship between the individual human rights and constitutions of Member States. It finally relates each human right to the proposals submitted from non-governmental organizations” (http://research.un.org/en/undhr/draftingcommittee/1).

The second addendum (E/CN.4/AC.1/3/Add.2) lists in 7 short pages the forty-eight proposed articles of the preliminary draft divided into the four chapters: Liberties, Social Rights, Equality and General Dispositions. The Drafting Committee also received a proposal from the United Kingdom consisting of a draft International Bill of Human Rights in the form of a legal instrument (E/CN.4/AC.1/4). This document permits to identify the strong interest and conviction of the United Kingdom in drafting a legal instrument with a strong enforcement component: “…. Human rights and fundamental freedoms can only be completely assured by the application of the rule of law and by the maintenance of every land of the judiciary, fully independent and safeguarded against all pressure, and that the provisions of an International Bill of Rights cannot be fulfilled unless the sanctity of the home and the privacy of correspondence are generally respected and unless at all trials the rights of the defense are scrupulously respected, including the principle that trials shall be held in public and that every man is presumed innocent until he is proved guilty” (E/CN.4/AC.1/4. Page 5).

There was growing conscience in the Commission on Human Rights that a Declaration on Human Rights would not constitute a legal instrument. The effective political realization of this entitlement to Human Rights in 1947 was not possible. Still in 2023 there are many countries that only may dream of the social realization of the most basic human rights for their people. At the end of this first session of the Drafting Committee, the task of re-drafting a declaration based upon the preliminary draft and the discussions in the Committee was given to René Cassin.

The 2nd session of the Human Rights Commission took place from 2 December to 10 December 1947 in Geneva. “Discussions revealed that many Member States were ready to accept a draft declaration if it would precede, and not replace, a convention” (http://research.un.org/en/undhr/chr/2). The working group on a draft declaration held its first meeting on 6 December 1947 (E/CN.4/57). Mrs. Roosevelt was elected Chairperson and Rene Cassin Rapporteur. The title of the preliminary draft “Draft Outline of International Bill of Rights” had changed to “Draft International Declaration on Human Rights”.

Cassin expressed his “thought that the Declaration should begin with some Articles of a general character” (E/CN.4/57 page 3). General Romulo, representative of the Philippines, suggested for Article 1 the following text: “All men are brothers. Being endowed with reason and conscience, they are free and possess equal dignity and rights” (E/CN.4/57 page 5). René Cassin suggested: “All men are born free, and equal in dignity and rights, and shall regard each other as brothers” (ibid.). Romulo and Cassin then formulated a joint text and the Chairman read out the Article for adoption in the following form: “All men are born free and equal in dignity and rights. They are endowed by nature with reason and conscience and should act towards one another as brothers” (ibid.). The Draft International Declaration on Human Rights of 16 December 1947 joins to this text of Article 1 the parentheses: “(Wherever the word “men” is used, the Commission implied both men and women)” (E/CN.4/77/ANNEX A). This parenthesis gives testimony to the fact that there was some conscience for a gendered language in the working group but not yet the will to effectively adapt the wording.

The report of this 2nd session was sent to the Governments in the first week of January 1948. Replies were accepted until the 3 April of 1948 so that the Drafting Committee could be informed before the beginning of its 2nd session on 3 May 1948.

During its second session from 3 May to 21 May 1948 in New York, the Drafting Committee considered in 25 meetings comments from governments, and most of the discussion concerned the draft covenant and not the Declaration on Human Rights. Looking at the report of the second session of the Drafting Committee to the Human Rights Commission we find Cassin’s draft as Annex A “Draft International Declaration on Human Rights” (E/CN.4/95 pp. 5-15). In Article 1 he formulates already almost as we read in the final UDHR: “All men are born free and equal in dignity and rights. They are endowed by nature with reason and conscience and should act toward one another like brothers” (E/CN.4/95. p. 5.). This formulation of article 1 of the Draft International Declaration on Human Rights Annex A is identical to the formulation of December 16, 1947, and documents, that “The Drafting Committee did not have the time to consider this article” (ibid.).

The 3rd session of the Human Rights Commission took place from 24 May to 18 June 1948 in New York. Mrs. Roosevelt was elected Chairman again, the Commission elected P. C. Chung from China as Vice-Chairman, and Charles Malik from Lebanon as Rapporteur. Rene Cassin was elected as Second Vice-Chairman (E/800 page 4).

At this session, the Commission based its work on the report of the second session of the Drafting Committee, E/CN.4/95. Individual articles of the Declaration now were examined, and the Commission adopted the re-drafted Declaration with 12 votes in favor and 4 abstentions (E/CN.4/SR.81).

On Wednesday, 26 May 1948 in the 48th meeting Mrs. Roosevelt was clear about the fact that the Declaration is not a legally binding instrument. The Covenant and the document on Implementation would enjoy legally binding force. Concerning the Declaration’s claim of the “equality of men and women” as a “right” Mrs. Roosevelt wanted this claim to be understood as Abraham Lincoln expressed the nature and purpose of the United States Declaration of Independence. She cites “They (the authors of the Declaration) did not mean to assert the obvious untruth that all men were then actually enjoying that equality, or yet that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as soon as circumstances should permit" (E/CN.4/SR.48 Page 6). Mr. Cassin consented and wanted the Declaration “to list those rights which it considered to be the most essential attributes of every human being without distinction” (ibid.). In the next meeting at the following day, a debate arose on why the term “democracy” was not yet included in the Draft for the Declaration, consensus was not possible and there were no decisions taken (E/CN.4/SR.49). The discussion of the purpose of the Declaration continued the next day, Thursday 27 May 1948 (E/CN.4/SR.50). The representatives of the USSR wanted to work on a Covenant and not on a Declaration of principles. Malik confronted the representatives of the Soviet Union with convictions from his Christian worldview that considers not only physical, social, economic, and political agencies of the individual, but includes also cultural and spiritual aspects of dignity (ibid.).

Discussion on Article 1 of the Declaration started. “Mrs. Ledon (Vice-Chairman of the Commission on the Status of Women) stated that the Commission on the Status of Women had decided unanimously to request … the following amendments to Article 1 of the draft Declaration: The words ‘all people’ should be substituted for ‘all men’ and ‘in a spirit of brotherhood’ for ‘like brothers’” (ibid.). The Chairman Mrs. Roosevelt, speaking as the representative of the United States of America, supported the following changes in the text: "all people, men and women" in place of "all men“ and "in the spirit of brotherhood" in place of "like brothers" (ibid.). Mr. Santa Cruz supported the suggestion of Mrs. Ledon. Mr. Cassin explained that he had used the expression “all members of the human family” in his first draft of Article 1 and that the concept. “brotherhood” is better than “like brothers”; the use of the term “brotherhood”, he argues, serves as an explication of “the idea of solidarity” (ibid.). The United Nations should adopt this use in order to “convince the peoples of the world that the United Nations firmly believed in their essential brotherhood” (ibid.). For the first time there is the expression “inherent equality of human beings” in the documents. It is Cassin who uses this argument that originates in the European natural law tradition, and he justifies the necessity of this use because the concept of the inherent equality of human beings “had recently been attacked by Hitler and his ideological disciples” (ibid.). The compromise that we finally find in the UDHR reads “all human beings” and was proposed by Mr. Lebeau, the representative of Belgium in the Commission and Mrs. Ledon expressly consented. Debates on the necessary use of a gendered language are still raging in 2023. In 1948 the debate was already effective in drafting the UDHR.

Concerning the second sentence of Article 1 of the Declaration, Mr. Chang, representative from China, wanted to delete "They are endowed by nature with reason and conscience" (ibid.). Mrs. Mehta from India and Mr. Wilson from the United Kingdom agreed. Mr. Malik disagreed, insisted on the inclusion of “nature, conscience and reason” and pointed at the fact that “they had originally appeared in the French and

United Kingdom texts” (ibid.). Mr. Lopez, the representative of the Philippines, had replaced General Romero and proposed that original draft of the text should be put to the vote (ibid.). Chang on his part would have preferred the Chinese word “ren” that means in Confucianism “empathy towards the other” in order to express the claim “that rights must be understood in relation to duties” but the expressions “reason” and “conscience” will get the final consensus (Jun Zhao. China and the uneasy case for Universal Human Rights. Human Rights Quarterly, Volume 37, Number 1, 2015. John Hopkins University Press. 29-52. 36).

Short parenthesis: Zhao brings to our attention and reflects the astonishing fact that the Chinese representatives in the Commission on Human Rights did not insist on Communist ideology. Chang and other Chinese diplomats involved in the drafting process of the UDHR - Zhao names Hsia, Lo, Chang and Wu -, were able to steer what the Chinese Ministry of Affairs in a note to Wu called “a middle course in the modern world between the extremisms, both of the right and of the left” (ibid. 38) These men were not “Westernized”, they were deeply “rooted in their own cultures” (ibid.). The Kuomintang government was dealing with economic turmoil and civil war, in 1949 the People’s Republic of China was established and the transition to socialism under way. Jun Zhao reports that Human Rights made part of China’s first Constitution in 1954. He recognizes that this inclusion of Human Rights got reversed in the Cultural Revolution’s Constitution of 1975; and that the Constitution of 1982 again introduced and in 1999 confirmed and strengthened them calling China “a socialist country under rule of law”; finally the amendment of the Constitution in 2004 provided that “the state respects and safeguards human rights” (ibid. 40). Zhao admits “the non-justiciability of constitutional rights under the 1982 Constitution” and the “considerable gap that exists between recognition and implementation of Human Rights” (ibid. 41f.). I suppose this understatement is the maximum the director of the Chinese Society for International Law is allowed to affirm in an academic journal of a liberal western democracy, without losing his job in the institutions of China’s Communist Party dictatorship. End of parenthesis.

Mr. Pavlov, representative of the Union of Social Socialists Republics, suggested to eliminate the word “nature” and remarked cynically “lest the Declaration remain without reason and without a conscience” (E/CN.4/SR.50). He continued saying that he does not object general statements, but that he wanted to ground the Declaration on reality: “Events happening every day served to convince one that there were people who had neither conscience nor reason, and who were acting towards one another not in a human fashion, let alone in a spirit of brotherhood” (ibid.). He rightly criticized that the idea of brotherhood “was not a legal concept, and no one would ever be liable to prosecution for failure to act "in a spirit of brotherhood" and announced that he will abstain from a voting on Article 1(ibid.).

The first sentences of Article 1: “All human beings are born free and equal in dignity and rights” was adopted by eleven votes to none, with four abstentions. The deletion of the words “nature”, “reason” and “conscience” was rejected by six to five votes with six abstentions. The second sentence of Article 1: “They are endowed by nature with reason and conscience and should act towards one another in a spirit of brotherhood” was adopted by thirteen votes to none, with three abstentions. The article as a whole was adopted by eleven votes to none, with six abstentions (ibid. page 5).

We may remember that in the Second Session of the HRC, which was held in the first week of December 1947 in Geneva, Cassin had bought up the suggestion to start the Declaration with “some Articles of a general character” (E/CN.4/57). He had suggested the text: “All men are born free, and equal in dignity and rights, and shall regard each other as brothers”. After having been gendered, the first part of the above sentence became the final first sentence of Article 1 of the UDHR. Cassin’s principle of brotherhood remained in the second sentence of the first Article of the UDHR.

In the third Session of the HRC, which took place from May 24 to June 18, 1948, in New York, Cassin insisted “to list those rights which it – i.e. the Declaration – considered to be the most essential attributes of every human being without distinction (E/CN.4/SR.48:6). Cassin got the consensus of the HRC to do so. The concept of dignity was not defined by the first Article of the UDHR but was inseparably connected to every Article of the UDHR. Every Article of the UDHR thus serves as possibility condition for the realization of dignity. Every Article of the UDHR claims what has to happen, what effectively must be the case to realize dignity. The UDHR bases the concepts of dignity, equality, and freedom not on a perfect imaginative setting, a social contract, or an ideal discourse situation but on very concrete Human Rights. At the same time the Preamble of the UDHR speaks of inherent dignity, equality, and freedom. Human Rights are based on dignity and dignity, equality, and freedom on Human Rights. Dignity, equality, freedom, and concrete Human Rights mutually enhance each other. Many discussions of Malik and Chung in the Drafting Committee were theoretical, abstract, and fruitless. When necessary, Mrs. Roosevelt gently interrupted the tiering men-talk with diplomatic determination and guided the gentlemen back to the drafting of a Declaration. She “was concerned with economic and social rights as well as civil and political ones, taking it to be central to the dignity of the individual that a person had health, welfare, food, and income” (Joe Hoover. Rereading the universal declaration of human rights: plurality and contestation, not consensus. In: Journal of Human Rights. Volume 12, issue 2, 2013. 217-241. 231. Hoover refers to Glendon, Mary Ann. 2006. A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York, NY: Random House).

The meeting continued with discussing the text of Article 2 of the Declaration and so did the meetings that followed in the next days. Discussions on the Draft Report of the Commission on Human Rights to the Economic and Social Council filled the last days of this 3rd session of the Commission on Human Rights. The Commission “recognized that in approving the Draft International Declaration of Human Rights it had not completed its task of preparing an International Bill of Human Rights, which consists of a Declaration, a Covenant and Measures of Implementation. … The Commission recommended to the Economic and Social Council that a meeting of the Commission be held in early 1949 for the completion of the Covenant and the measures of implementation” (E/800 page 6). The report of the third session of the Commission on Human Rights, E/800 and Add.1 and Add.2, was submitted to the seventh session of the Economic and Social Council (http://research.un.org/en/undhr).

The plenary meetings of this Seventh Session of the Economic and Social Council took place 25 and 26 August 1948. Discussion on the report of the third sessions of the Commission on Human Rights started on Wednesday 25 August 1948. Mr. Thorp, representative of the United States of America, was convinced that the draft Declaration of Human Rights was one of the most important documents for the United Nations (E/SR.215 page 642). Although it was not a legislative document he hoped, “that the Declaration of Human Rights, once approved by the General Assembly, would be the first step towards a Covenant on Human Rights embodying obligations binding in international law, with provisions designed to ensure the implementation and enforcement of those obligations” (ibid. Page 643). Mr. Guerrero from Brazil said that neither the Convention nor the suggestions for implementation had been sufficiently studied, nevertheless he wanted some “initial steps taken immediately to guarantee certain human rights (ibid. page 645). Mr. Cassin explained that the Human Rights Commission had not enough time to complete work on the Covenant and its implementation pointing at the two possibilities for going on: Either giving the Human Rights Commission more time or proceeding “by stages” and transmitting the draft Declaration to the General Assembly (ibid. page 648). Cassin wanted the draft Declaration brought before the General Assembly because of “two new ideas which showed that the lessons of two world wars had been taken to heart. It – the draft Declaration – guaranteed both the economic and social rights of the individual. It gave form, too, to a third idea, by stating that no one had a right to use the freedoms it proclaimed for the destruction of freedom, thus laying down the principle that democratic regimes, too, had the right to defend themselves. The concept of democracy was mentioned, although apparently not often enough (ibid. page 650). There were governments like the Government of New Zealand that did not want to send the draft Declaration to the General Assembly (ibid. p. 453), yet a majority of governments followed the opinion of Cassin. Cassin proposed to transmit the whole report of the 3rd session of the Commission on Human Rights to the General Assembly. The Council adopted, without vote, Resolution 151(VII) of 26 August 1948, transmitting the draft International Declaration of Human Rights to the General Assembly (http://research.un.org/en/undhr/ecosoc/7).

At its 142nd meeting on 24 September 1948, the General Assembly referred the draft International Declaration of Human Rights to the Third Committee. The Third Committee (Social, Humanitarian and Cultural) spent 81 meetings discussing the draft. During the debate, 168 formal draft resolutions containing amendments to various articles were submitted. At its 178th meeting, the Third Committee voted on the text as a whole. The report of the Third Committee on the Draft International Declaration of Human Rights documents on 7 December 1948 that the Third Committee recommends for adoption by the General Assembly a Draft Universal Declaration of Human Rights. We see that the Draft changed “international” to “universal” which would be the final name of the UDHR. The text of the second sentences of Article 1 does not any more speak of the “nature” but simply reads: “They – that is all human beings – are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (A/777 page 3). On 10 December 1948 the Universal Declaration of Human Rights was adopted as Resolution 217(III) with 48 members in favor, and 8 abstaining (http://research.un.org/en/undhr/ga/plenary).

Eight countries abstained from a vote on the UDHR and the international body of the UN in 1948 was made up of only fifty-six states, most of which were from the West or politically Westernized, “the Universal Declaration of Human Rights was thus not born ‘universal’, even for those who took direct part in the process of its elaboration” (Hoover 2013. 218). Most of the Afro-Asian countries who at the time of the negotiations of the Declaration were Western colonies, did not participate in the process of formulating and writing the Declaration. To criticize therefore the Declaration as a “Western product” from the perspective of an excluded and colonized culture and society at first sight sounds quite logical. Universal validity of the UDHR was attained later (ibid. 237). In 1993 consensus was reached in the UN Vienna Declaration on Human Rights (UN General Assembly 1993): “Drawing representatives from the existing major cultures, religions, and sociopolitical systems, with delegations from over 170 countries, in a world virtually without colonies, the Vienna Conference was the largest international gathering ever convened on the theme of human rights. Its final document, the Vienna Declaration and Program of Action – adopted by consensus without a vote of reservation, although with some interpretive statements – unambiguously affirms, in Article 1 that: The universal nature of these rights and freedoms is beyond question” (https://www.ohchr.org/en/instruments-mechanisms/instruments/vienna-declaration-and-programme-action).