by Shalu Nigam 15 October 2020
Abstract
The Universal Declaration of Human Rights (UDHR) 1948 is a basic and most significant document. It is not only about indivisible, inalienable, basic human rights. Several people in South Asia discredit human rights as the foreign, Eurocentric, or Western and the male concept, however, in contradiction, this piece argues that firstly, the human rights as proclaimed in the UDHR is a universal concept. It is the collective aspirations of people the world over. UDHR is about the emergence of new world order. Secondly, non-western women, including those from South Asia played a crucial role in shaping the framework of UDHR. Therefore, dismissing human rights as `foreign’ involves denial of the important role delegates from the Third World have played. This piece asserts that the idea of UDHR is a legacy owned jointly by all nations, shaped by people belonging to different countries, and belongs jointly by the people of the world.
Introduction
Universal Declaration of Human Rights (UDHR) created in 1948, after World war II ended, is a basic and most significant document that provides the basis for the subsequent human rights instruments and treaties. It is not only about indivisible, inalienable, basic human rights but it is also about human dignity and belongs to everyone irrespective of geographical or political boundaries. Several people in South Asia discredit human rights as the foreign, Eurocentric, or Western and the male concept, however, in contradiction, this piece argues that firstly, the human rights as proclaimed in the UDHR is a universal concept as it is the collective aspirations of people from Global North as well as from the Southern Hemisphere that emerged from the experiences of people’s struggle across the globe to end the oppression of colonialism, it rises from the ashes of Holocaust and from the graveyards of genocide and ethnic cleansing to envision a better peaceful world. UDHR is about the emergence of a new world order that is democratic, peaceful, and free from slavery, apartheid, imperialism, and all other such vices. It is `Universal’, made jointly by people across the globe as applies to everyone. Secondly, non-western women, including those from South Asia played a crucial role in shaping the framework of UDHR. Eleanor Roosevelt, the former First Lady of the USA has chaired the commission, yet at the same time, Hansa Mehta and Lakshmi Menon from India, Begum Shaista Ikramullah from Pakistan besides Minerva Bernandino from the Dominic Republic, all contributed significantly in articulating the vocabulary of the UDHR. Therefore, dismissing human rights as `male’ and as `foreign’ concept involves denial of the important role women from the Third World have played and crucially it negates the role of non-Western delegates who contributed significantly to shaping developing the idea of UDHR. Reclaiming `herstory’ and recognizing women’s voices in the making of the UDHR is important from the South Asian context. The argument of framing human rights as `western’ favors the dominant narrative of legitimizing patriarchal, colonial hegemony, and is being contested. This piece asserts that the idea of UDHR is a legacy owned jointly by all nations, shaped by people belonging to different countries, and belongs jointly by the people of the world.
The Background of UDHR
UDHR was evolved in the wake of the atrocities, death, and destruction at the end of World War II. The experiences of hatred, prejudices, hostilities, and enmities are evident by the Holocaust in Germany, the mass killings, genocide, and ethnic cleansing in many other places, apartheid and racism in other parts of the world, and colonialism that spread its evil arms over Asia and Africa. After the second world war, as per estimates, about 70 to 85 million people had died and close to 50 million of those survived became refugees, displaced, or stateless people. Premediated starvation, diseases, massacres, strategic bombing of population centers, all have taken a huge toll. During that period, the economic, industrial, technical, military, civil, and scientific capabilities, all have been abused to destroy the planet as a whole. The war altered the political and social alignment. UN was then created to establish peace, to foster international collaboration, and to prevent future conflicts. The UN adopted the UDHR as a common standard for all member nations.
The birth of UDHR is a crucial political event and a legacy that cannot be claimed by one nation, rather it is a product of negotiations between delegates from several countries who came together to shape the new beginnings and to forge the sense of common identity. As a statement of aspirations, it was adopted unanimously without dissent on 10 December 1948. UDHR is a living document and it provides the foundation for many other international treaties and instruments. Its legitimacy is derived from the political process behind its making, more importantly, the significant share of non-Western states cannot be denied in shaping this historical document. (Waltz S, 2002) It is the most influential statement in the history of human rights. The purpose of recognizing and accepting human rights is to shape the new world order based on the principles of recognition and respect of human beings as a distinct entity. The core principles of UDHR have the potential to better human conditions and societies worldwide. (Berlin Forum, 2020) It is a legal framework and is a bedrock for contemporary international law. Morsink (1999) argued that the universality of human rights is based on consensus among the drafters who meticulously reflected on a variety of social, ideological, and cultural traditions while examining the records and materials to finalize the document that finally, reflects diversity.
The Making of UDHR
Though the basic premise of the human rights has been evolved from the 18th French Declaration of the Rights of Man besides the US Declaration of Independence (Brown 1999), yet UDHR is developed with the inputs from the non-Western states who analyzed it from the conceptualization of their cultural and religious beliefs as well as the moral norms. Around 250 delegates and advisors from 56 countries are accredited to participate in the construction of the Universal Declaration. Besides Europe and America, representatives from Latin America, Chile, Lebanon, China, Egypt, India, Panama, Philippines, Cuba, Soviet Union, Panama, Uruguay, Pakistan, and other countries participated actively. For instance, the delegates from Pakistan, Venezuela, China, Iraq, Haiti, Saudi Arabia, Sweden, Greece, Brazil, and Belgium along with others had crucially debated and discussed to formulate the language of the document. (Waltz, 2001) The discussion on the making of UDHR took place for more than over two years where several commissions, sub-commissions, and committees were constituted which deliberated jointly.
Though Rene Cassin of France is seen as the father of UDHR and has been awarded the Nobel Peace Prize for his role in fostering UDHR, however, Morsink (1999) has challenged this view and argued that there are other delegates such as John Humphrey, a Canadian Law Professor and the UN First Director of the Division on Human Rights, Alexie Pavlov, a Soviet delegate who focused on the concept of nondiscrimination, Hernan Santa Cruz, a former judge of Superior Military Court of Chile, Charles Malik from Lebanon and Peng Chang from China who contributed significantly to the deliberations and discussions held while making of the UDHR. Santa Cruz provided the initial drafts and attached particular importance to socio-economic rights. (Waltz S, 2001) Professor Humphrey compiled the first draft of the Declaration based on extensive cross-national research while Rene Cassin endowed interpretive structure to Humphrey’s draft (Gelndon MA, 2004).
It is noted that the Chinese delegate attended to the logical structure of the Declaration and made special efforts to establish that the Universal Declaration document should not only be seen as a reflection of Western thought and also emphasized three instruments: a declaration, the treaty, and a measure of implementation. (Morinsk J, 1984). Therefore, the shaping of UDHR cannot be attributed to one author and no country or person can claim its ownership, as it is a negotiated text. The important contribution of the non-Western states cannot be ignored or discounted. The non-Western states participated actively in the construction of international norms hence this draft of the Universal Declaration has joint ownership.
The non-Western delegates argued the universality of human rights from different axes based on communist, Catholic, Islamic, secular, socialist, liberal, and feminist beliefs relating to social justice. As Adami (2012) pointed out, they did not agree to the `right’ basis of human rights but agreed on the list of human rights to accommodate conflicting ideological grounds’. The immense sufferings faced during the Nazi regime and the impact of colonization preoccupied the delegates to evolve the shared understanding about human rights.
For non-Western states, during that period, many of those who sought an end to the colonial rule, see the human rights instrument as a tool to advance the cause of independence and self-determination against the Imperial rulers. They argued that human rights should be deployed everywhere – irrespective of the political status of the country. Omar Loufti of Egypt advocated for the phrase that found a place in the Preamble of the UDHR as mandating the rights
“both among the peoples of the Member states themselves and among the peoples of territories under their jurisdiction”.
This concept of self-determination later found a place in Article 2 where the delegate from Pakistan, Mr. Shari argued:
“that the greatest deprivation a person could suffer was to be denied its political independence”. (Waltz, 2001)
Hence, the UDHR document represents the aspirations of diverse cultures, religions, and political contexts.
In fact, at the opening session of the Third Committee hearing on 30th September 1948, a delegate from Costa Rica warned about the dangers that may lurk in when the states put their interests over the rights of citizens. Also, it is the delegates from small non-Western states that defended the concepts of socio-economic rights. The Philippines and Chinese participants focused on the right to decent standards of living as proclaimed in Article 25 and also the delegate from Saudi Arabia reminded of the Muslim tenet of Zakat (almsgiving) which was further defended by the Syrian delegate. Hence, non-Western participants played a crucial role in broadening the concept of `social justice’.
The basic document of human rights is, therefore `Universal’ in two aspects – one it is made jointly where the participants and delegates across countries came together to draft and debate it, and also, it applies to all human beings irrespective of political boundaries. Or as Glendon (2004) puts it
“the very nature of Declaration as a `common standard’ for `all peoples and all nations’ testifies to the importance the framers attached to the incorporation of its principles into national law”. (p. 10).
UDHR holds the governments accountable to protect the rights of human beings and then, all the Member states agreed to implement the idea of human rights and ratified it and therefore are bind by it.
Role of Women in Shaping the UDHR
Frequently, while writing history, either at the global or the national level, the role of women is overshadowed by the reification of male supremacy. Most of the history is written from the male perspective and has ignored `herstory’ while overlooking the lived realities and subjectivities of women’s lives. The critiques argue that the earlier research studies conducted on the making of UDHR have focused on male Western delegates who participated in the process. (Morinsk J, 1999) Therefore, the history of human rights represents the bias reflecting male subjectivities while ignoring the women, children, minorities, or anyone who is not a Western male subject. (Butler J, 2011) Non-western women have been marginalized in the narratives pertaining to the history of making of UDHR (Waltz S, 2019) Or as Spivak (1988) in her famous work `Can the Subalterns Speak?’ argued that the voices of `brown’, `black’ or `color’ women have been muted throughout the intellectual discourse, similarly, while writing the global history the voices of women of color have remained unheard.
Yet, women have left an indelible mark in shaping the idea and the language of human rights. (OHCHR, 2018) The voice and agency of women as disparate individuals have played a crucial role in evolving the human rights discourse. Eleanor Roosevelt is one of the prominent figures in the drafting committee of the Declaration. (Glendon MA, 2001) However, other non-Western women contributed to drafting and shaping the language of human rights which were ignored in the historical narratives shaped by the western male point of view (Adami R, 2015). The delegates from the non-Western nation-states spoke fervently in favor of establishing women’s rights. Prominent among them were Hansa Mehta and Lakshmi Menon from India, Minerva Bernardino from the Dominic Republic, Begum Shaista Ikramullah from Pakistan, and Bodil Begtrup from Denmark and other women delegates from Brazil, France, and Russia, contributed significantly in making of the draft.
Bodil Begtrup from Denmark was appointed as a chairperson of the Sub-Commission in Status of Women in 1946 and 1947. She advocated referring to `all’ or `everyone’ as the holders of rights rather than “all men”. She also proposed to include the rights of minorities in Article 26 on the rights to education. Maria-Helene Lefaucheux of France was appointed as the chairperson of the Commission on Status of Women in 1948. She successfully advocated for a mention of non-discrimination based on sex to be included in Article 2. Evdokia Uralova of the Byelorussian Soviet Socialist Republic was the Rapporteur of the Commission on Status of Women to the Commission of Human Rights in 1947. She strongly argued for equal pay for women. Together with Fryderyka Kalinowska of Poland and Elizavieta Popova of the Union of Soviet Socialist Republic, she stressed the rights of persons in Non-Self-Governing Territories.
Minerva Bernardino from the Dominic Republic was a diplomat, a feminist politician, and a leader in the feminist movement in Latin America and the Caribbean. She pushed the phrase `equality for men and women’ in the Preamble. She was also behind the founding of the UN Commission on the status of women and also was a delegate to the UN Third Committee on Social and Economic Affairs. Together with Bertha Lutz of Brazil and Isabel de Vidal of Uruguay, she played a crucial role in advocating for the inclusion of women’s rights and non-discrimination based on sex in the United Nations Charter in 1945.
Hansa Mehta, born in 1897, is an Indian reformer, educator, a Member of the Indian Constituent Assembly, and a delegate to the UN Commission of Human Rights. (Scaria and Nigam 2016). She suggested a change in the language of Article 1 of the Universal Declaration of Human rights from “All men are born free and equal” to replace it with “All human beings are born free and equal”. (The Economic Times, 2020) Initially, her suggestion was dismissed as the Commission see the word `men’ as generic, however, Mehta persisted, and later the word `men’ was changed to `human beings’. This change has made a dynamic impact on the way the understanding of women’s rights and the idea of sex equality has been evolved over the decades since then. (MacKinnon, 2006) The demand for equality between men and women that were raised then during the drafting of UDHR still holds till today.
Begum Shaista Ikramullah, a delegate to the third committee of UN General Assembly on social, humanitarian, and cultural matters, from Pakistan championed the inclusion of Article 16 on equal rights in marriage as a way to combat child marriage and forced marriage. (OHCHR, 2018) She was a member of the first Parliament of newly independent Pakistan and pushed for the idea of `freedom, equality, and choice’ in the UDHR. Also, Ikramullah argued,
“It was imperative that the peoples of the world should recognize the existence of a code of civilized behavior which would apply not only in international relations but also in domestic affairs”. (UN Doc 1948)
Born in the then part of Bengal Presidency, in Calcutta, in 1915 she was an author and the founder of the Muslim Women Trust Federation in Pakistan, and the first Muslim woman to earn her Ph.D. from the University of London. She was Pakistan’s ambassador to Morocco from 1964 to 1967. (Smith BG, 2008) As an Education Minister, she argued for the importance of liberal and religious education. Based on Islamic beliefs, she discussed for women’s equal political and social rights and debated for equal rights of women to own and inherit property. She was elected to the Constituent Assembly of India in 1946 but never took the seat and joined the Pakistan Constituent Assembly in 1947, as one of the two female representatives. Ikramullah, in fact, in her book titled From Purdah to Parliament described her experiences being a female in the Constituent Assembly dominated by the male members.
Lakshmi Menon, a delegate from India to the General Assembly’s Third Committee in 1948 argued for non-discrimination based on sex as well as a mention for the “equal rights for men and women” throughout the document. She was the outspoken advocate of the `universality’ of human rights and strongly opposed the concept of `colonial relativism’ that sought to deny human rights to the people in countries under the colonial rule. This was endorsed by Carlos Romulo of the Philippines who argued that full rights be given to colonies.
The idea of human rights as evolved through the UDHR is therefore universal and reflects the values, norms, and principles as developed by the people belonging to different countries, various cultures, and those who practice different beliefs. No one country or a continent can claim its ownership. It is the legacy of many people, across countries, who jointly hold discussions, debates deliberated, argued, outlined, and delineated for two years to come out with this document. Perhaps, it is the non-Western delegates who contributed a lot in terms of developing and shaping the idea of human rights in the document, therefore to dismiss it as `Western’ or `Euro-centric’ involved denying the history and overlooking their contributions. Moreover, from the feminist perspective, the counter-narratives of non-Western, South Asian women who took part in the drafting of the UDHR, and argued human rights through the lens of their own religious and cultural values, are a valuable component that could help in harmonizing human rights with the religious and cultural values and to counter the argument the cultural relativism. (Adami, 2015). South Asia needs to reclaim the history and must acknowledge the role played by women in the making of the UDHR.
The Critique of UDHR overlook fundamental aspects
Those who criticize the idea of human rights, while ignoring the history and making of the UDHR, criticize that it is a product of the West, reflects Eurocentric values and norms, and is therefore incompatible with the social and cultural context of many non-Western societies. These critiques suit the interest of the political interests of the authoritarian regimes as it helps them to evade their responsibilities to abide by the human rights principles. The powerful majoritarian sentiments exploit culture as an antidote against the concept of social justice. Human rights norms are therefore projected as a weapon of cultural hegemony and new forms of cultural imperialism. The cultural relativism argument insists that what is western cannot be made applicable to non-Western cultures. What these narratives ignore is the pivotal struggle, the historical context, and experiences that give rise to the concept of the human rights framework. All cultures – from East to West – have faced a history of injustices. The theory of rights as documented in UDHR is, hence, based on the collective experiences of injustice in various forms where the delegates have used their lenses of experiences, moralities, knowledge and subjectivities to filter the text of the UDHR document. The critique also ignored the fact that the non-Western men and more importantly, women played a crucial role in conceptualizing UDHR.
Human Rights are Universal
In short, the global roadmap of freedom and equality is created as a response to the barbarous history of the second world war that `outrage the conscience’ of mankind. UDHR is a visionary document and the purpose of creating this document is to protect the freedoms and rights of every individual everywhere and to establish peace, dignity, and justice. It emerged from the ruins of war, sorrows of destruction, and shame of humanity to prevent future conflicts and became a living reality for the past several decades. UDHR is about peaceful and respectful co-existence. The framers including the fathers and mothers of UDHR were from diverse countries, different cultural backgrounds, practice different faith and hold different beliefs and yet they managed to arrive at the common understanding about respecting the rights of every human being irrespective of his or her caste, class, race, color, sex or any other social indicator. More importantly, the role of non-Western women including those from South Asia and other Third World countries cannot be denied. The voices of women have been ignored because of patriarchal notions that prevail the world over till now, it is, therefore, important to recognize the role women have played in making significant contributions to the making of UDHR. To counter the idea of human rights implies pushing the norms of oppression, denying justice, and depriving people of basic dignity because the idea of human rights is about the collective hopes and shared dreams for a better world. Human rights are about dignity, justice, and equality for everyone.
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About the Author
The author is a practicing advocate, researcher, and activist working in India on law, human rights, gender, and governance issues. She has written several books, papers, and articles. The recent one is Women and Domestic Violence Law in India: A Quest for Justice. She may be contacted at snigam00@gmail.com