Indivisible Human Rights: A History 9780812205404

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Indivisible Human Rights

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Pennsylvania Studies in Human Rights Bert B. Lockwood, Jr., Series Editor A complete list of books in the series is available from the publisher.

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Indivisible Human Rights A History

Daniel J. Whelan

University of P e nns y lvani a P r e s s Phil a del phia  • OX FOR D

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Copyright © 2010 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 Printed in the United States of America on acid-free paper 10  9  8  7  6  5  4  3  2  1 Library of Congress Cataloging-in-Publication Data Whelan, Daniel J.   Indivisible human rights : a history / Daniel J. Whelan.    p. cm.   Includes bibliographical references and index.   ISBN 978-0-8122-4240-9 (hardcover : alk. paper)   1. Human rights—History. 2. Social rights—History. I. Title. JC571.W423 2010 323.90—dc22 2009049136

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For my parents, Bill and Jean

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Contents

1. Indivisible, Interdependent, and Interrelated Human Rights

1

2. Antecedents of the Universal Declaration

11

3. International Guarantees and State Responsibility before the Universal Declaration

32

4. From Declaration to Covenant

59

5. Including Economic, Social, and Cultural Rights

87

6. Division of the Covenant

112

7. Indivisibility as Postcolonial Revisionism: 1952–1968

136

8. Indivisibility as Economic Justice: 1968–1986

155

9. Indivisibility as Restoration: 1986–2009

176

10. Indivisible Human Rights: Past and Future

207

Appendix: Covenants on Human Rights: Drafting Procedures and Timeline

215

Notes

219

Bibliography

255

Index

263

Acknowledgments

271

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Chapter 1

Indivisible, Interdependent, and Interrelated Human Rights

It is often said that all human rights are “indivisible, interdependent, and interrelated.” This tripartite formulation is taken as given. In recent years, the United Nations has boldly declared that the indivisibility, interdependency, and interrelatedness of human rights is “beyond dispute.” This is an interesting claim, considering that this book explores the unsettled and contested nature of the indivisibility of especially the two grand categories of civil and political, and economic, social, and cultural rights. Even if indivisibility is not beyond dispute, many continue to ascribe indivisibility, interdependency, and interrelatedness to the nature or character of contemporary human rights, as if this were entirely self-­evident. For the U.N. as well as others, declaring the matter settled should prompt us to inquire: What was settled? How was it settled? When used to describe the qualities or characteristics of human rights, the adjectives “indivisible,” “interrelated,” and “interdependent” usually come as a package (along with “universal”), or the separate words are used interchangeably. This is widely reflected in the scholarly literature, writings of human rights advocates and practitioners, and authoritative interpretations1 especially surrounding the content and obligations of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Craig Scott urges us not to pay too much attention to semantics when we consider the different meanings that the terms “indivisible,” “interdependent,” and “interrelated” may convey.2 I think we should ignore this advice, because a great deal of confusion persists about what these adjectives tell us about human rights. While the statement “human rights are indivisible, interdependent, and interrelated” seems to be the answer to a question, it is unclear what that question is. Do these adjectives say something about how human rights function, or what they mean conceptually? Do they tell us something

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2   Chapter 1

about the historical development of contemporary human rights? Do they say something about the politics of human rights? Do these adjectives convey real meaning, or are they merely symbolic? I liken the package of indivisible, interdependent, and interrelated human rights to the box of wires in my closet. I need an extension cord, so I go to my box, and hunt for one. I find one, but upon attempting to retrieve it, I pull up a mass of wires: my extension cord is intertwined with telephone cords, TV cable, speaker wires, audio cables, other extension cords, and a surge protector. After struggling to free my extension cord, I throw the tangled mass back into the box, thinking to myself that I really should clean up that mess sometime soon. This book attempts to undertake just such a task and bring some sense of clarity to the box of wires that is indivisible, interdependent, and interrelated human rights. The first thing we can say with some confidence is that these concepts are centrally concerned about the relationships between the two grand categories of civil and political, and economic, social, and cultural rights. Even more than that, these adjectives are used most often in relation to the status, importance, or equality of economic and social rights vis-­à-­v is civil and political rights. Interestingly enough, while the terms “interdependent” and “interconnected” were used (but not often) during to the drafting of the 1948 Universal Declaration of Human Rights, the word “indivisible” was not. That term first emerged in the early 1950s, during the most fascinating period in the normative development of contemporary human rights at the U.N.—­the drafting of first one, then the two Covenants on Human Rights that together with the Universal Declaration make up the International Bill of Rights. During those debates, the concept of indivisibility underwent a subtle but important transformation. While it began as a strong descriptive adjective relating to the fundamental unity of the rights in the Universal Declaration, it quickly became a rhetoric for postcolonial aspirations. That rhetoric deepened during the 1960s and 1970s, when it was deployed as a revisionist view of human rights, prioritizing economic, social, and cultural rights over civil and political rights, indispensible and inextricably linked to a variety of agendas of great importance to the developing world. Not until the 1990s did the rhetoric of indivisibility shift again. It was recast to include interdependency and interrelatedness in a rhetoric of restoration of the spirit of the fundamental unity (or, some might say, organic unity) of the rights contained in the 1948 Universal Declaration of Human Rights. I say “underlying” because the Universal Declaration barely categorizes rights and says not a word about fundamental or organic unity, indivisibility, interdependency, or interrelatedness.

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Indivisible, Interdependent, Interrelated   3

Definitions Words can convey meaning, or they can be used to obscure. How might one begin to define these terms? Oddly enough, the U.N. itself has never actually defined indivisibility, interdependency, or interrelatedness (perhaps we should not be surprised—­a fter all, this is “beyond dispute”!). But we should start somewhere. I begin with the premise that these adjectives actually do convey some distinct meanings about human rights. I would like to first separate “interdependent” and “interrelated” from “indivisible.” The prefix “inter-­” means “between,” whereas “in-­” means “not.” I begin first with (inter)dependency and (inter)relatedness, and then turn to (in)divisibility. Interdependent Rights This is perhaps the least problematic aspect of our tripartite formulation. In the legal and policy-­oriented literature on human rights, it predominates. To say that rights are interdependent despite their distinctiveness as particular rights means that the enjoyment of any right or group of rights requires enjoyment of others—­which may or may not be part of the same category. For example, freedom of movement (a civil right) is a necessary precondition for the exercise of other civil rights (such as freedom of assembly), political rights (e.g., the right to vote), economic rights (the right to work, for example), and so forth. The language of interdependency accepts division and categorization and does not seek to overcome or ameliorate it. It takes rights as they are categorized. It is, in this sense, transcendent of categories. And despite the fact that these relationships may actually be dependent (not interdependent), we still speak of interdependency. Some interesting conceptual work demonstrating the interdependencies between rights has sought to demonstrate the importance of supporting relationships between rights, as an instance of a grander, overall epistemology of human rights. However, as James Nickel has recently noted, “Looking at relations between particular rights is illuminating and cannot be avoided, but fully realizing this perspective requires much tedious work. If there are 40 particular human rights then combining them in pairs will yield 1560 places where supporting relations may exist. Maximal penetration comes at the cost of great complication.”3 What Nickel offers instead is an account of what he calls indivisibility (but which I would call interdependency) that is based on looking at families of rights, rather than individual rights and their interdependencies. The interdependence of human rights is, to my mind, relatively unproblematic, if we assume that a right to something or to be free from

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something is, as a right, justiciable. It becomes more problematic when one or more of the rights that are thought to be interdependent are not necessarily justiciable. Interrelated Rights That rights are interrelated means that they are brought into a situation of mutual relationship or connectedness (indeed, early UN resolutions used the term “interconnected” instead of “interrelated”). Whereas interdependency is best suited for looking at relationships between particular rights or clusters of rights, interrelatedness has more purchase between broader categories or families of rights, as they are enumerated and expressed in multilateral treaties with a variety of monitoring institutions attached to them. One author describes interrelatedness (although he uses the term “interdependence”) as permeability between categories of rights.4 Relatedness suggests familiarity; thus the grand categories of human rights may be thought of as interrelated insofar as their legal foundations (like the Covenants) are similar. As part of the compromise in the early 1950s over the Covenants, for example, René Cassin of France insisted that the two covenants have “as many similar provisions as possible.” Thus one notices the identical preambles of the two Covenants and the inclusion of a right to self-­determination in both instruments. Thus, human rights can be said to be interrelated insofar as they share common characteristics—­their provenance from U.N. bodies, their legal character as treaties, that state limitations and obligations are expressed or implied, and so forth. A significant portion of the “indivisibility and interdependence” literature of the late 1980s and 1990s emerged to explore what I am calling here the question of interrelatedness. Among the key differences between the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR are the implementation and reporting obligations of states, the scope of monitoring authority held by the oversight committees for each, and the competency of those committees and other U.N. bodies to handle complaints. This literature emerged as a result of the creation of a formal committee to oversee the implementation of the ICESCR, with similar powers and responsibilities as those of the Human Rights Committee, which monitors states-­parties implementation of the ICCPR. This was an important step in the evolution of the international law of economic, social, and cultural rights, the monitoring of which would now be under the direction of an international body with international-­legal characteristics.5 Most of this emerging literature was focused primarily on establishing and strengthening the claim that economic, social, and cultural rights were rights in the same sense

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Indivisible, Interdependent, Interrelated   5

as civil and political rights (i.e., that their recognition, protection, and promotion are properly the subject of international law), and that while the obligations on states-­parties to the ICESCR are different from those to the ICCPR, they are obligations nonetheless. Philip Alston, who was the first Chairperson of the Committee, wrote that although the concept of economic, social, and cultural rights—­a s well as human rights generally—­had generated controversy among philosophers for some time, the controversy should have been put to rest by the adoption of these legally binding treaties in 1966.6 The literature analyzing state obligations created by the ICESCR was necessary in order to then make comparisons with the obligations within the ICCPR—­obligations that were never really disputed because they were considered widely to have immediate effect.7 Much of the focus of this literature has been interpretive, especially of the implementation clause (Article 2 (1)) of the ICESCR, which reads: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-­operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” The sheer volume of material written about this one paragraph reflects the extent to which it is open to a wide range of interpretations on the part of states. Due to the pervasive assumption that economic, social, and cultural rights require direct provision of resources by the state, one writer noted that the “maximum available resources” clause causes immense confusion: “It is a difficult phrase—­t wo warring adjectives describing an undefined noun. ‘Maximum’ stands for idealism; ‘available’ stands for reality. ‘Maximum’ is the sword of human rights rhetoric; ‘available’ is the wiggle room for the state.”8 Scholars and advocates have devoted equal attention to exploring and interpreting the meaning of “taking steps”; the role of (especially technical) cooperation; “progressive achievement”; and the content of “all appropriate means.” 9 The aim of this literature is to demonstrate that economic, social, and cultural rights are really rights. Thus, the language of interrelatedness demonstrates equality of importance or legitimacy of economic, social, and cultural rights in relation to civil and political rights. The concept of interrelatedness, in my view, is really about how human rights have been expressed institutionally. This is most evident in the evolution of institutions to promote economic, social, and cultural rights that are similar to those for civil and political rights, despite the differences between the two different regimes. The latest development in this evolution is the U.N. General Assembly’s adoption, after nearly

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twenty years of advocacy and negotiation, of an Optional Protocol to the ICESCR that will allow the Committee on Economic, Social and Cultural Rights to adjudicate state-­to-­state complaints, receive individual and collective complaints, and initiate inquiries into alleged violations of the Covenant. This move toward greater institutional interrelatedness, in the minds of many advocates, has symbolic value as well, bringing economic, social and cultural rights one step closer to indivisibility of the two grand categories of human rights.

The Rhetoric of Indivisibility We are left now with indivisibility—­the meaning of which in this tripartite formulation is the most difficult to pin down, because it carries significant conceptual and symbolic weight. The word itself—­meaning “incapable of being divided, in reality or thought”—­conjures powerful symbolic imagery—­or even articles of faith. Consider Catholics’ belief in the indivisibility of the Holy Trinity—­God the Father, the Son, and the Holy Spirit. The American pledge of allegiance declares that Americans constitute “one nation . . . ​indivisible.” For Hobbes, the awesomeness of the sovereign emanated from the indivisibility of his sovereignty. While the words “interdependent” and “interrelated” suggest the bringing together of two or more things into a mutual harmony, they still acknowledge separateness. If something is indivisible, dividing that thing renders it impotent. The claim that the two grand categories of human rights are indivisible—­which is the subject of this book—­carries no less symbolic meaning. But this powerful rhetoric has shifted and evolved over time. The rhetoric of indivisibility first emerged during the late 1940s and early 1950s, when the United Nations was engaged in deeply serious debates about how to codify the rights (expressed as principles) contained in the Universal Declaration of Human Rights into binding international law. At first, it was the intention of the U.N. Commission on Human Rights to include only civil rights in the Covenant contemplated by the original “international bill of rights” plan. The Commission intended then to draft further Conventions and additional instruments on other categories of rights once the U.N. had adopted the Covenant. Before this could happen, the General Assembly requested that the Covenant include economic, social, and cultural rights alongside the already drafted civil rights. The Commission drafted these articles and separate implementation measures for them in 1951. The following year, after significant debate, the General Assembly modified its earlier decision, requesting the Commission on Human Rights to draft two separate human rights Covenants: one covering civil and political rights; the other, economic, social, and cultural rights.

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Indivisible, Interdependent, Interrelated   7

During these debates, those countries that lobbied for a single legally binding covenant including both categories of human rights were particularly concerned about two things: First, if the Covenant did not include economic, social, and cultural rights, they would never be expressed in a binding treaty. Second, they wanted the West to give as much attention to the cause of securing economic, social, and cultural rights as they did to civil rights, by insisting that their ability to meet their national obligations required a guarantee of international development resources from the West as the postcolonial era was just getting under way. However, a number of other postcolonial states, such as India, also recognized that economic, social, and cultural rights were still individual rights, and that governments of postcolonial states—­not the international community—­would be primarily responsible for their implementation. It was during these contentious debates over the inclusion, drafting, and division of the Covenant—­a s I recount in Chapters 4, 5, and 6—­that the seeds of the rhetoric of indivisibility were planted. As I show in Chapters 7 and 8, the rhetoric of indivisibility began to shift significantly from the mid-­1950s until the early 1980s. With the division of the Covenants a reality, the rhetoric of indivisibility became revisionist—­that economic, social, and cultural rights were indispensable to broader international policy goals especially of postcolonial states in Latin America, the Middle East, Asia, and (later) Africa. In the mid-­1950s, economic and social rights became a rhetorical touchstone for a move to include a right of self-­determination of peoples as a human right in both Covenants. By the early 1960s, ending colonialism and colonialist practices—­such as racism and apartheid—­became core human rights issues. By 1968, when the international community met for its first International Conference on Human Rights and into the 1970s, this revisionism settled on a new formula of indivisibility: that the realization of economic, social, and cultural rights had priority over civil and political rights. This was first reflected in the Proclamation of Teheran, issued at the close of the 1968 International Conference on Human Rights: “Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound and effective national and international policies of economic and social development.”10 By the late 1970s—­a fter the Covenants had entered into force—­the United Nations brought a whole host of global issues under the umbrella of human rights, including the “unjust international economic order,” the proliferation of arms, continuing colonialism and imperialism, and the problems of underdevelopment and global poverty. The indivisibility

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rhetoric first articulated at Teheran was institutionalized further, clearly prioritizing economic, social, and cultural rights in terms of these other global concerns, beginning with General Assembly Resolution 32/130 (1977) and eventually leading to the 1986 “Declaration on the Right to Development,” which was declared as an inalienable human right, an indivisible and interdependent part of international human rights. As Chapter 9 illustrates, by the time of the World Conference on Human Rights in 1993, the end of the Cold War, the further development of the U.N. human rights machinery, a newly emerging scholarship on human rights, and a dramatic increase in the number of civil society organizations dealing with human rights, a third rhetoric of indivisibility emerged, that of restoration. Consider the following from the Vienna Declaration: “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”11 On close reading, one is struck by how dramatically different the idea of indivisibility is reflected in the Proclamation of Teheran and the Vienna Declaration. The Proclamation uses the sole term “indivisible” in the strongest sense: that choosing civil and political rights and ignoring economic, social, and cultural rights renders the enjoyment of the former impossible. The following sentence further contends that economic and social development are prerequisites for the realization of human rights—­which, given the wording, suggests a privileging of economic, social, and cultural rights over civil and political rights. In contrast, the Vienna Declaration introduces the more familiar, quadripartite formulation of universal, indivisible, interdependent and interrelated rights—­a formulation that is now standard fare in official U.N. documents and widely used by scholars, advocates, and practitioners. But there are two emphases here: one is about the equality of different categories of rights as rights (note that it does not mention “civil and political” and “economic, social, and cultural” by name); the second is about the nature of obligations on states—­that they are universal despite differences or particularities between states. These are but two small examples of the different meanings and contexts that indivisible human rights bear. The 1968 Proclamation subtly reflects U.N. politics on the question of international development at the time. By 1993, the emphasis seems to have shifted to the universal nature of human rights and state obligations—­an important move that will open a door for

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Indivisible, Interdependent, Interrelated   9

some scholars and advocates to begin to identify violations of economic, social, and cultural rights.12 This recent theme of indivisibility as restoration compels us to begin our investigation with the direct ancestors of the Universal Declaration of Human Rights. The rhetoric of restoration is about restoring the organic unity of the Universal Declaration itself—­a unity that was compromised by the division of rights into separate conventions. While I do not recount the drafting history of the Universal Declaration of Human Rights,13 Chapters 2 and 3 do explore the ancestry of the Declaration—­ the numerous proposals and drafts prepared by a variety of civil society organizations, and agencies within the U.S. federal government during World War II. Those were influenced by other bills of rights and declarations whose genealogy extends back before World War I. These are worth exploring in detail, as they shed some light on the ways in which civil, political, economic, and social rights came to be integrated within general ideas about a bill of rights that might be drafted as part of the postwar order (as the Universal Declaration and the Covenants would become). My examination reveals the reasoning of early human rights advocates, not just about what should be included in a bill of rights, but more important, how those rights should be guaranteed, protected, and promoted. This is especially enlightening when we see how these early visionaries conceived of economic and social rights and the balance between the state and the market that would have to be struck for those rights to be realized at the level of the state. This is the focus of Chapter 2. Chapter 3 explores the international dimensions of these bills of rights. When these advocates decided to include economic and social rights along with civil and political rights in their draft declarations and bills, they were not compelled to invoke the language of indivisibility, or even unity. They found that concept embedded within the very notion of the obligations and duties of modern states, properly defined. This is where my investigation begins, and the point to which it returns in the conclusion.

A Word on Sources and Materials The methods I use here were largely inspired by Johannes Morsink’s landmark work14 on the drafting of the Universal Declaration. This book makes extensive use of original U.N. documents, including summary records of meetings of the General Assembly, its Third Committee (on Social, Humanitarian, and Cultural Affairs), the Economic and Social Council, and the Commission on Human Rights. I also looked closely at the travaux préparatoires of significant General Assembly resolutions,

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10   Chapter 1

draft articles in the human rights Covenants, proposals for measures of implementation and monitoring, and so forth. Because this kind of work has so often been missing from the literature on contemporary human rights, and because I believe it is important to understand the subtleties and nuances that are part and parcel of the history of indivisibility, I have made this material available on my Web site, at http://www.hendrix.edu/politics/politics.aspx?id=43640. Prompts to those materials appear in the notes from each chapter as well. Finally, readers who are not familiar with the flow of work through the U.N. system might find the Appendix useful, especially while reading Chapters 4, 5, and 6.

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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

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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—­t wo 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 begin here with the Secretariat Outline of the Universal Declaration of Human Rights, prepared by John Humphrey of the U.N.’s Division of Human Rights. As Humphrey himself acknowledged, he based his draft on what he considered to be the best text available at the time—­namely, the American Law Institute’s (ALI) Statement of Essential Human Rights published in 1946. As human rights historian and scholar Louis Sohn recounts, the drafting of this proposal began in 1942.6 The president of the ALI at the time, Richard J. Alfaro, had offered a similar proposal at the San Francisco Conference in April–June 1945, as a bill to be attached to the U.N. Charter itself.

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Antecedents   13

This chapter also explores in some detail the Roosevelt administration’s proposals for the recognition of economic and social rights in U.S. domestic policy. Roosevelt himself proposed a Bill of Economic Rights in his 1944 State of the Union Address—­a proposal that emerged from the National Resources Planning Board (NRPB) during 1942 and 1943. The NRPB was largely responsible for proposals to absorb returning servicemen into the U.S. economy and shift economic production from wartime to peacetime production. The proposals themselves, as well as the discussions that surrounded them, amply demonstrate that the recognition of economic and social rights, especially in Western domestic contexts, while novel, was not strange or odd. There were good reasons, consequent especially to the deeply unsettling effects of the Great Depression, which required serious efforts on the part of properly constituted liberal-­democratic welfare states to protect and promote the economic and social security of ordinary people. These proposals also show that advocates and drafters of these proposals believed that all rights—­civil, political, economic, and social—­required both negative and positive duties for governments. In this way, the proposals of the 1940s presaged discussions that would emerge again at the U.N. in the late 1980s and early 1990s.

The American Law Institute’s Statement of Essential Human Rights (1946) John Humphrey records that while he had several proposals at hand when he produced the first Secretariat Outline of what would become the Universal Declaration of Human Rights, he took the ALI’s Statement as a model, calling it the best text from which he worked.7 The Statement was published in January 1946 in the Annals of the American Academy of Political Science; each of the rights enumerated in it articulated both the content of each right and the scope of state obligations required to uphold each right. The rest of the issue of the Annals was devoted to separate articles on specific groupings of rights as well as articles on various rights traditions and orientations worldwide. Coupled with Humphrey’s own analysis of constitutional provisions that he prepared when writing the Secretariat Outline of the Universal Declaration, this resource provided a sound contextual mooring for examining the development of the human rights idea during and even before the Second World War. The drafting of the Statement came on the heels of Roosevelt’s famous “Four Freedoms” speech, which was included in his 1941 State of the Union Address. William Draper Lewis, then Director of the ALI, approached its former Director (and former President of Panama)

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14   Chapter 2

Richard J. Alfaro to assist him in drafting a statement on human rights designed to implement these freedoms. He raised the concern that “if when peace comes we have done no real thinking during the war on the problems of peace, there will be small chance that we shall insist that our representatives wisely solve them or even that we shall permit them to do so.”8 Alfaro approached Manley O. Hudson, who was at that time at Harvard Law School. Hudson had sat on the Permanent Court of International Justice. His assistant at the time, Louis Sohn, found a copy of the 1929 Declaration of the International Rights of Man produced by the French Institut de Droit International, and shared it with Alfaro (I discuss the 1929 Declaration in more detail in Chapter 3). In order to produce the Statement, Lewis thought it best to put together an international group of experts (not just lawyers) for the drafting. From the start, the Statement was intended to include the rights of English-­speaking countries (presumably civil and political rights), rights of minorities, and “certain rights of an economic character, such as the ‘right to work and receive a living wage.’”9 In November 1942, several committees were set up to work on each category of rights: (1) personal liberties (religion, speech, opinion), (2) political rights, (3) due process, (4) property, and (5) social rights, which were later explained as meaning “those that relate to the individual’s economic opportunity and security.”10 As it was conceived, the project had two main objectives: “the ascertainment of how far the liberal elements of all countries have similar ideas of individual rights” and “how those rights on which all unite can be expressed in a manner acceptable to their different traditions and conditions.”11 This was basically the same approach taken by the drafters of the Universal Declaration in 1947 and 1948.12 Consequently, as far as Lewis was concerned, no treaty or treaties that would end the war in the future should include language about enforcement of human rights by any international body; rather, he took the stance that “their enforcement might wisely be left to each individual nation.”13 As Sohn recounts, “there was as well general agreement that ‘a modern bill of rights should also include rights which involve positive action by public authorities.’”14 Daniel Riesman, Jr., the Rapporteur for the Social Rights Subcommittee, mentioned that many of these rights had been implemented by constitutions and legislation in Europe (the subcommittees on civil liberties and legal procedure had used national constitutions to inform their own drafting language). But discussions within the subcommittee soon turned to the content of obligations to be assumed by the state in this regard. Thus, for example, having a right to social security meant the state must maintain “social security arrangements which organize preventive measures against sickness and occupational accidents, provide medical care in cases of childbirth, accident,

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sickness and invalidity, and provide for financial support of persons deprived of earnings or the dependent survivors of such persons.”15 Interestingly, Riesman anticipated that far more than legislation and/ or legal protections would be necessary for these rights to be realized; there would be a necessity for “boards, commissions, private contracts, agencies, personnel and programs which must be set up to give them meaning.”16 He noted that making such rights meaningful within the limits of the resources of the state would mean that “its [the state’s] resourcefulness, and its social vision, rests upon the organized community.”17 In other words, state action would be most meaningful in the establishment and maintenance of institutions, by legislation or through its regulatory power, such that the forces of civil society and the market would be called upon to bring about fulfillment of the state’s duty. Enumerated Rights in the ALI Statement The drafting committee of the ALI Statement included U.S., Arabic, British, Chinese, French, pre-­Nazi German, Italian, Indian, Latin American, Polish, Soviet, and Spanish cultures.18 Again, as published in the Annals, each article declares a right or group of rights, followed by a statement of the obligations of states to protect or promote the right. Each article also includes a comment—­some more extensive than others—­that details the number of national constitutions in force at the time that included references to each right, and further elaborates on the content of the right and of state obligations. For example, Article 1, on freedom of religion, lays a framework used throughout the Statement: “The duty of the state expressed in this Article and in succeeding articles involves some or all of the following steps: (1) to abstain from enacting laws which impair the right, (2) to prevent its government agencies and officials from performing acts which impair the right, (3) to enact laws and provide suitable procedures, if necessary, to prevent persons within its jurisdiction from impairing the right, and (4) to maintain such judicial, regulatory and operative agencies as may be necessary to give practical effect to the right.”19 Thus, each of the rights contained in the ALI Statement contains obligations that are both negative and positive in character. Even an Enlightenment-­era right such as freedom of speech implies significant regulatory obligations for states, especially in an era in which the influence and power of the mass media were beginning to be recognized. Thus, state duties in protecting this right include more than a prohibition against arbitrary censorship by the state; in addition, “the duty of the state ‘to prevent denial of reasonable access to channels of communication’ means that if, through physical limitation or other circum-

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stances, the ordinary channels—­such as the mails, the telephone, the telegraph, the radio—­are limited, the state where necessary must exercise its controlling or regulatory power to insure to the individual such opportunity of use as is practicable.”20 The ALI Statement enumerated six economic and social rights: Property Rights (Article 10); Education (Article 11); Work (Article 12); Conditions of Work (Article 13); Food and Housing (Article 14); and Social Security (Article 15). In the Universal Declaration, all of these rights are also included, although their wording and content changed somewhat: Article 17, property; 22 and 25, social security; 23, work and conditions of work; 25, food and housing; and 26, education. I make a detailed comparison later in the chapter. Article 10 of the ALI Statement recognizes that “every one has the right to own property under general law. The state shall not deprive anyone of his property except for a public purpose and with just compensation.” The comment to the article links property ownership to human freedom, while also recognizing the state’s power to exercise eminent domain.21 The right to education (Article 11) entails free and compulsory primary education but also calls on the state to “promote the development of facilities for further education which are adequate and effectively available to all its residents.”22 The article does not prohibit education at home, nor does it prohibit private schools from charging tuition or other fees. The article also takes into account differences in the ability of states to provide access to education with the phrases “promote the development of facilities” that are “adequate and effectively available.”23 The content of state obligations to uphold “the right to work” (Article 12) are clearly centered on providing opportunity for “useful work.” 24 The content of this right has long been problematic in terms of what the state is supposed to do in order to promote it. However, during this time—­and as we shall see when we look closely at proposals from the Roosevelt administration and by Roosevelt himself—­nearly all proposals made it clear that the role of the state was to create and maintain economic conditions necessary for the creation of jobs in the market and to intervene only in the case of discrimination within the labor market (in order to remediate a limitation of opportunity) or to provide work or income support in the case of outright market failure. As the ALI explains, “this Article does not require the state to furnish work to the individual unless private enterprise fails to provide him with the opportunity to work and unless he has no opportunity to earn a living as an independent worker.” 25 The article recognizing the right to “reasonable conditions of work” includes provisions for wages, hours, and other conditions. It mentions the existence of comprehensive international standards embodied in

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sixty-­seven separate international labor conventions in force at the time. The comment included with the article points out that there is no absolute standard for these rights and that they must “necessarily depend on prevailing economic conditions.” However, the comment does point out that objective statistical studies that demonstrate wage levels insufficient to maintain a family of average size may be used to determine cases in which such wage levels are unreasonable.26 According to the drafters of the Statement, the right to adequate food had not been addressed by national constitutions in effect at the time, but nutritional policies had been developing rapidly since 1936, some of which linked adequate levels of nutrition to an overall policy of improving standards of living. Eleven constitutions at the time had recognized some right to housing. As for state obligations to secure this right, again the ALI made it clear that “the state is not required to provide food or housing unless the individual cannot under existing conditions obtain them by his own efforts,” that “it may be sufficient for the state to protect its residents” by regulating food safety, and that the state should, through its regulatory power, ensure an adequate supply of housing within the reach of everyone.27 The right to social security enumerated in Article 22 of the Universal Declaration was meant to be a general “covering” article, creating a state obligation to provide some kind of a social or economic safety net for people generally. What we think of today as social security—­ meaning social insurance or support of some kind—­was incorporated into Article 25 of the Universal Declaration and also into Article 15 of the ALI Statement. Included were four different duties of states: the promotion of health, the prevention of sickness and accident, the provision of medical care, and compensation for loss of livelihood.28 The comment accompanying Article 25 elaborates on the state’s duties in terms of seeing that the “resources of society are organized: (1) to raise standards of health (2) to prevent sickness and accident (3) to provide medical care wherever needed, including maternity cases (4) to provide for the financial support of persons deprived of earnings who lack means of livelihood, including the involuntarily unemployed and their dependents, the aged, widows and orphans.” 29 Again, “the wording of the Article leaves full scope to private initiative, in countries where this is considered desirable, to accept as much of the responsibility as it can and will.”30 Economic and Social Rights as “Real Rights” The foundations of this broad array of human rights, not only in terms of its scope but also in the complexity of positive state obligations, is

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nicely summed up by William Draper Lewis in his brief review of the history of rights in England and the United States.31 The growing complexity of a modern society, in his view, meant a shift in rights discourse away from earlier preoccupations with abusive government. Earlier bills of rights assumed the state as the only potential violator of rights. In contrast, the contemporary phenomena of “private concentrations of economic power, such as corporations and labor unions,” and “community mores and action, such as in some areas deprive minority groups of equal opportunity for education, for work and for homes,” necessitated a much broader understanding of rights.32 This is an important point, for it demonstrates the necessity of an expansive vision of liberalism whose view of the state is to protect the individual, especially as a member of society. This sentiment is echoed by Charles Merriam, who was a member of the ALI Committee and also a member of Roosevelt’s National Resources Planning Board (NRPB), which articulated the first “economic bill of rights” as a framework for guiding the U.S. federal government’s planning activities in anticipation of the end of the war. Merriam saw these rights as overlapping, and all flowing from a basic, fundamental right to life (which he calls “the basic right”): “They refer to certain types of situations in which the personality must function if creative development is the goal. No one of this series of rights is complete without the others. There must be coordination of social and economic rights with the political rights which guarantee and protect them.”33 As Merriam saw it, “economic and social rights are also part of the protections of a world jural order which make life worth living.”34 He saw this as an indispensable element of human development—­“claims upon society for recognition and protection of human personalities.”35 Most notable is his acknowledgment that economic and social rights are something more than simply rights: “They are conditions essential to the full flowering of the personality as truly as civil and political rights already accepted.”36 In his assessment of the economic and social rights contained in the Statement, C. Wilfred Jenks elaborates on the contemporary economic and social contexts that had made the recognition of those rights necessary and outlines the scope and limits of state obligations in each respect. The right to education, of course, is necessary for the development of a modern society. That right is not only to the tools of education—­schools, for example—­but also to equal access for all, regardless of “race, color, creed, or sex.”37 The articulation of a right to work, in particular, was a response to recent economic disruptions worldwide, “a world depression sandwiched between periods of full employment resulting from two world wars.”38

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Jenks contends that the obligations embedded within this right “do not imply any particular type of economic or social system”39 but adds that state obligations with respect to the right to work are more a matter of social and economic policy than law. It is necessary, for example “to have an adequate organization of the employment market,” which “implies a duty of the state . . . ​to direct the whole of its economic and financial policy as to maintain the highest possible level of employment and avoid recurrent fluctuations of crisis dimensions.”40 The second element of the right to work is the safety net, meaning that “employment must be provided by the state whenever a sufficient volume of private employment is not available.”41 Jenks provides an interesting nuance in his interpretation of state responsibility in this area but also outlines a role for the market: “The volume of employment that the state itself must furnish will, in a free enterprise economy, be determined by the extent to which private industry succeeds or fails in providing useful jobs for all. Consequently, the more private industry insists that government confine its activity in the economic field to regulation, the greater becomes the responsibility of private industry so to organize and conduct its operations as to ensure full employment and preclude the necessity for direct action by the state.”42 The obligations to ensure reasonable conditions of work fall squarely on the state, through its power to regulate the employment contract. Limitations on working hours, the establishment of a minimum wage, and workplace health and safety regulations all fulfill the duty to protect workers in the workplace from potentially unsafe or exploitative relationships, especially with private employers. It is important to recall that a broad consensus about the need for such state intervention was fairly recent. Cass Sunstein, for example, points to the U.S. Supreme Court’s extremely narrow reading of the Commerce Clause of the U.S. Constitution in the late nineteenth and early twentieth centuries—­ interpretations that supported a nearly absolute freedom of contract.43 John Ellingston’s essay in the Annals argued that the question about whether social and economic rights should be included in a bill of rights had been settled. The questions that remained included “what specific rights shall be so guaranteed, how they shall be phrased, and by what international and national economic and political action they shall be made effective.”44 With regard to the right to work, Ellingston points out that even though there is a demand for a right to be guaranteed, this tells us next to nothing about the reasons behind the demand.45 In order to discover them, he focuses on the historical shifts in the content and context of work, especially as it pertains to the rise of the industrial age and the end of economic autarky, when “men needed no protection for their right to work.”46 Economic interdependency, or what Hegel called

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“the system of needs,” requires the development of a new set of social relations quite distinct from those of a premodern context: a rights-­based system necessary for the development of an open, modern economy. “In exchange for that surrender of independence, society clearly owes him an opportunity to earn a satisfactory livelihood and to share fully in the higher standard of living that his surrender of economic independence makes possible.”47 The rest of Ellingston’s analysis of the meaning and content of work as well as state obligations to protect the right to work focuses on the interdependency between that right and other, more traditional rights; a utilitarian argument that the realization of the right to work is, in today’s vernacular, good for business;48 and that state obligations to protect the right to work contain both positive and negative elements. Anticipating objections to the idea of positive rights, Ellingston in particular notes that not all the rights in the U.S. Bill of Rights are negative; in fact, the content of Amendments 5, 6, 7, and 8 requires positive action by the federal government to ensure due process of law. “In terms of mechanism and trained personnel, a system of social security is child’s play in comparison with the system that gives effect to due process of law.”49 Again, the modern context of greater numbers of people concentrating in urban areas (a centuries-­long trend in Europe) and, more recently, the housing shortage resulting from the dedication of resources to the war effort certainly influenced the idea that a right to adequate food and housing be included in a comprehensive bill of human rights. The inclusion of the adjective “adequate,” however, seems to qualify the right somewhat—­or at least lead us toward an understanding about what the content of the right might be, its limitations, and state obligations to ensure it. In Jenks’s view, the state is under no obligation to actually provide food or housing to people. Its obligation is, rather, “that of taking such measures as may be necessary to ensure that they have an opportunity to obtain these necessities. The article does not sap the self-­reliance of men. ‘It guarantees nothing to the loafer.’”50 In other words, it appears that this right is primarily about equal or fair access to markets. This is especially true in the case of housing, but Jenks also points out an obligation of the state—­for example, to protect the ordinary consumer from monopolies within the food production, distribution, and retailing sectors that might drive up the price of food.51 Also expressly implied are obligations for the state to pass legislation regulating the safety of food and of housing. It does not suggest that there be “uniform minimum standards of nutrition and housing for the whole world.”52 Jenks’s view of the content of obligations with regard to housing is as telling as it is extensive in terms of the indispensable role of the state in the complex relationships that make up the housing arena.

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“The accumulated experience of cities and metropolitan areas since the first days of the industrial revolution has led to the realization that to provide adequate modern housing requires five major steps.”53 He cites the necessity for state involvement, directly or indirectly, in city planning and zoning, real estate financing, construction, design, and management. The creation and maintenance of some system of social security is seen by Jenks as “the counterbalance to the peculiar risks of an industrialized society, in which men are removed from direct support by and reliance on nature and the family and are subject to accidents and disasters which it is beyond their power to control or escape.”54 A social obligation to care for those who lack private resources “has been recognized for centuries.” The novelty, in Jenks’s mind, is “the substitution for public charity to the indigent of a legal right generally based on the insurance principle.”55

Comparing the ALI Statement with Humphrey’s Secretariat Outline John Humphrey was a socialist (albeit a Canadian one) and believed emphatically in the central importance of the inclusion of economic and social rights in the Universal Declaration; he would certainly have agreed with Ellingston that “to leave social and economic rights out of a modern bill of rights would be to stage Hamlet without the Dane.”56 Some of the proposed language for the preamble in Humphrey’s Secretariat Outline reflects a view of the relationship between the state and the individual that was unsuccessfully advocated by the Soviet Union and it allies during the negotiations over the Universal Declaration itself. These included statements such as “Man does not have rights only; he owes duties to the society of which he forms part,” and “Every one owes a duty of loyalty to his State. . . . ​He must accept his just share of such common sacrifices as may contribute to the common good.”57 Despite the robust articles on economic and social rights that were part of the ALI Statement, Humphrey also recalled, oddly, that “it is by no means certain that economic and social rights would have been included in the final text had I not included them in mine. There was considerable opposition in the drafting committee to their inclusion.”58 This is either an overstatement or a mistaken recollection of actual events, given Morsink’s extensive research to the contrary; 59 also, economic and social rights had been included in nearly every draft bill or outline that came before Humphrey’s Secretariat Outline. Many of these drafts are explored in Chapter 3. These considerations aside, it is striking to note how Humphrey changed the content of state obligations from what was included in the

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ALI Statement—­obligations clearly outlined in terms of regulating markets to ameliorate instances of market failure rather than as obligations of the state to actually provide the object of the right in question. Humphrey’s draft clearly moves toward the socialist “state as provider” view of obligations for ensuring economic and social rights. To get an idea of where Humphrey was coming from and given his admission that the ALI Statement was a primary source for his own draft, it is worthwhile to compare the content and wording of the economic and social rights contained in the ALI Statement and the Secretariat Outline that Humphrey prepared. Table 2.1 compares the language on economic and social rights in both. Table 2.1. Economic and Social Rights in the ALI Statement and the Secretariat Outline ALI Statement

Secretariat Outline

Article number

Article number

Text

Text

10

Every one has the right to own property under general law. The state shall not deprive anyone of his property except for a public purpose and with just compensation

22

Every one has the right to own personal 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 to private appropriation. No one shall be deprived of his property without just compensation.

11

Everyone has the right to education. The state has a duty to require that every child within its jurisdiction receive education of the primary standard; to maintain or insure that there are maintained facilities for such education which are adequate and free; and to promote the development of facilities for further education which are adequate and effectively available to all its residents.

31

Every one has the right to education. Each state has the duty to require that every child within its territory receive a primary education. The State shall maintain adequate and free facilities for such education. It shall also promote facilities for higher education without distinction as to the race, sex, language, religion, class or wealth of the persons entitled to benefit therefrom.

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Table 2.1. Economic and Social Rights in the ALI Statement and the Secretariat Outline ALI Statement

Secretariat Outline

Article number

Article number

Text

Text

12

Everyone has the right to work. The state has a duty to take such measures as may be necessary to insure that all its residents have an opportunity for useful work.

24, 37

(24) There shall be equal opportunity of access to all vocations and professions not having a public character; (37) Every one has the right and duty to perform socially useful work.

13

Everyone has the right to reasonable conditions of work. The state has a duty to take such measures as may be necessary to insure reasonable wages, hours, and other conditions of work.60

38

Everyone has the right to good working conditions.

14

Every one has the right to adequate food and housing. The state has a duty to take such measures as may be necessary to insure that all its residents have an opportunity to obtain these essentials.

42

Every one has the right to good food and housing and to live in surroundings that are pleasant and healthy.

15

Every one has the right to social security. The state has a duty to maintain or insure that there are maintained comprehensive arrangements for the promotion of health, for the prevention of sickness and accident, and for the provision of medical care and of compensation for loss of livelihood.

34, 39, 40, 41

(34) Everyone has the right to medical care. The State shall promote public health and safety; (39) Everyone has the right to such equitable share of the national income as the need for his work and the increment it makes to the common welfare may justify; (40) Every one has the right to such public help as may be necessary to make it possible for him to support his family; (41) Every one has a right to social security. The State has to maintain effective arrangements for the prevention of unemployment and for insurance against the risks of unemployment, accident, disability, sickness, old age and other involuntary or undeserved loss of livelihood.

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Human Rights and Postwar Planning: The Roosevelt Administration A remarkable but often overlooked antecedent to the Universal Declaration of Human Rights can be found in two separate postwar planning efforts undertaken by the Roosevelt administration. One dealt with the idea of the protection of human rights as part of the postwar international order—­which I discuss in more detail in the next chapter. The second dealt with how rights should fit into an overall framework for domestic postwar planning in the United States. The emergence of recent literature focusing on the second of these aspects has shed much­needed light on the history of American political and social attitudes toward the idea of economic and social rights as part of governmental guarantees, even though they never were explicitly made constitutional. Most notable in this regard is Cass Sunstein’s The Second Bill of Rights, which argues that prior to Richard Nixon’s appointments of Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist to the Supreme Court after 1968, the Supreme Court had been slowly moving toward guaranteeing much of Roosevelt’s Second Bill of economic and social rights within the framework of the Constitution: “To the surprise of many and the enduring disappointment of some, these justices did not dramatically shift the Court to the right. The Burger Court’s path did not dramatically diverge from that [of] the Warren Court. But the area of social and economic rights is the one crucial exception . . . ​ by 1975 the whole idea of minimum welfare guarantees had become implausible.”61 Sunstein tells how Roosevelt himself as well as the architects of the New Deal, often referred to as his Brain Trust, fully endorsed the idea that a modern, capitalist democracy like the United States required a reconceptualization of traditional liberties—­life, liberty, and the pursuit of happiness—­to accord with the realities of a sizable industrialized market economy. The Great Depression led to a real loss of security and freedom for the typical American. The 1936 Platform of the Democratic Party affirmed, “We hold these truths to be self-­evident—­that government in a modern civilization has certain inescapable obligations to its citizens, among which are: (1) Protection of the family and the home; (2) Establishment of a democracy of opportunity of all the people; (3) Aid to those overtaken by disaster.”62 In his acceptance speech at the Democratic Convention in Philadelphia, Roosevelt tied these principles of 1936 with those of the Revolution of 1776: “The rush of modern civilization itself has raised for us new difficulties, new problems which must be solved if we are to preserve to the United States the political and economic freedom for which Washington and Jefferson planned and fought.”63 The actual Second Bill of Rights was first articulated in Roosevelt’s

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1944 State of the Union Address, which he delivered over the radio on January 11. In it, Roosevelt encouraged Congress to take up an ambitious legislative agenda regarding the domestic dimensions of the war effort. In addition to urging Congress to pass legislation to curb war profiteering, Roosevelt suggested a national service law, the civilian equivalent of a military draft.64 While this was the most controversial program in the speech—­organized labor and business groups opposed it—­the idea enjoyed fairly widespread support from the public. Echoing the 1941 “Four Freedoms” speech, Roosevelt suggested that while the American republic was based on the rights and freedoms protected by the original bill of rights, the nation had already begun to accept a number of self-­evident economic truths: “We have come to a clearer realization of the fact, however, that true individual freedom cannot exist without economic security and independence. ‘Necessitous men are not free men.’ People who are hungry and out of a job are the stuff of which dictatorships are made.”65 Roosevelt suggested that the nation had already accepted the idea of a “second bill of rights,” and that it was time Congress enacted it formally. In their entirety, these rights were the following: The right to a useful and remunerative job in the industries or shops or farms or mines of the nation; The right to earn enough to provide adequate food and clothing and recreation; The right of farmers to raise and sell their products at a return which will give them and their families a decent living; The right of every business man, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad; The right of every family to a decent home; The right to adequate medical care and the opportunity to achieve and enjoy good health; The right to adequate protection from the economic fears of old age, and sickness, and accident, and unemployment; The right to a good education.66

Out of a sampling of the many thousands of letters Roosevelt received after this speech, eighteen are included in a recently published collection of post–radio address letters sent to the White House. Thirteen approved of the speech, and five did not. Four letters specifically mentioned this “second bill of rights”—­and all four approved of the idea.67 Without actually saying so, they seemed to understand it not only as a natural extension of the New Deal but also as a new kind of social contract: National Service in exchange for economic and social guarantees. Roosevelt had already proposed a GI Bill of Rights in July 1943; one of

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the rights in that bill, of course, was the right of every returning veteran to get a college degree or other training at the government’s expense. Roosevelt signed the GI Bill on June 22, 1944. The seed of the Second Bill of Rights was first planted in August 1939, when the chair of the National Resources Planning Board (NRPB), Frederic Delano (Roosevelt’s uncle), had first proposed the idea to Roosevelt. Luther Gulick, the pioneer of public administration and organization, later brought the idea into the whole enterprise of postwar planning. After the 1941 “Four Freedoms” speech, under Gulick’s direction, the NRPB began to refine the idea, and to make it an integral part of the entire postwar planning strategy of the administration.68 As one author notes: “It was an expansive vision of a postwar America freed from the wreckage of the Great Depression, inspired by the possibilities of economic abundance, distrustful of centralized state power, and imbued with the American ideals of individualism. . . . ​But the rhetoric necessary to present this new rights-­based liberalism to the broader public represented a tremendous challenge to the older, nineteenth-­century liberalism that permeated much of the politics, economy, society and culture of 1940s America.”69 It is important to recall that the specters of both communist and fascist reactions to the Depression drove the Roosevelt administration’s postwar planning agenda. The members of the NRPB “refused to give wide berth to command-­style economic planning, preferring a moderate form of compensatory spending policy that would be counterbalanced by increased private investment over the length of the business cycle, while arguing for some expansion of a limited welfare state to deal with the social consequences of economic change.”70 The election of a Congress generally hostile to Roosevelt’s domestic policies in 1942 spelled the end of the NRPB, whose funding was cut off in 1943, forcing the Board to cease its activities. One of its final efforts to save the idea of a second bill of rights was to extend at least part of it to returning servicemen—­the GI Bill of 1944.71 In the fall of 1943, Louis Brownlow suggested that Roosevelt use parts of the Second Bill as a campaign tool in the upcoming 1944 elections. Roosevelt first did so in the January 11 State of the Union Address, but he used it in other speeches he gave, most notably one delivered at Soldier’s Field in Chicago on October 28, 1944. In that speech (“We Are Not Going to Turn the Clock Back”) he reiterated the Economic Bill of Rights as an indispensable part of his vision that demobilizing servicemen return to the “best place on earth.” Roosevelt also made it clear that the appropriate role of the federal government in this new economy would be to facilitate the transition to a full-­employment, high-­consumption peacetime economy: “The Economic Bill of Rights recognizes the simple fact that, in America, the

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future of the worker, the future of the farmer lies in the well-­being of private enterprise.”72 What exactly did the NRPB propose? Compared to the technical language typical of a contemporary government report, this extensive report taking inventory of national resources and making policy recommendations to alleviate a postwar slump has a very idealistic tone. In its annual report for 1943, the NRPB outlined the objectives of postwar planning: “(1) the fullest possible development of the human personality, in relation to the common good, in a framework of freedom and rights, of justice, liberty, equality, and the consent of the governed; (2) fullest possible development of the resources of the nation, alongside (3) an effective jural order of the world outlawing violence and imperialism, old or new fashioned, in international relations; and permitting and energizing the fullest development of resources and rights everywhere.”73 The overarching report, which was to be the NRPB’s last, contains plans for moving the United States from a wartime to a peacetime economy. Its recommendations fell broadly into the following interrelated areas: Plans for Transition from War to Peace (demobilization of men, machines/ plant/equipment, and wartime economic controls); Plans for Development of an Expanding Economy (private enterprise; finance and fiscal policy; and improvement of physical facilities, such as urban transportation, energy, land, water, and public works); Plan for Services and Security (health, education, nutrition); Plans for Underwriting Employment; Plans for Social Security; and Plans for State and Local Government.74 The introduction clearly stated the idea that these planning efforts were part of a broader set of obligations to the American people—­couched in the language of rights. In his letter of transmittal of the report to Congress, Roosevelt wrote, “We can all agree on our objectives and in our common determination that work, fair pay and social security after the war is won must be firmly established for the people of the United States of America.”75 The meaning and content of these new rights, and of the government’s obligations to promote them, was articulated fully in the NRPB report issued the previous year. In its introduction, under the heading “New Objectives,” the NRPB stated that a central purpose for postwar planning was to help secure “a greater freedom for the American People.”76 The following from the introduction is worth quoting in its entirety: “Great changes have come in our century with the industrial revolution, the rapid settlement of the continent, the development of technology, the acceleration of transportation and communication, the growth of modern capitalism, and the rise of the national state with its economic programs. Too few corresponding adjustments have been made in our provisions for human

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freedom. In spite of all these changes, that great manifesto, the Bill of Rights, has stood unshaken 150 years. And now to the old freedoms we must add new freedoms and restate our objectives in modern terms.”77 The NRPB then outlined nine new rights—­expressing its idea of the full meaning behind the four freedoms: 1. The right to work, usefully and creatively through the productive years; 2. The right to fair play, adequate to command the necessities and amenities of life in exchange for work, ideas, thrift, and other social valuable service; 3. The right to adequate food, clothing, shelter, and medical care; 4. The right to security, with freedom from fear of old age, want, dependency, sickness, unemployment, and accident; 5. The right to live in a system of free enterprise, free from compulsory labor, irresponsible private power, arbitrary public authority, and unregulated monopolies; 6. The right to come and go, to speak or be silent, free from the spyings of secret political police; 7. The right to equality before the law, with equal access to justice in fact; 8. The right to education, for work, for citizenship, and for personal growth and happiness; 9. The right to rest, recreation, and adventure, the opportunity to enjoy life and take part in an advancing civilization.78 One notices the similarities between the NRPB Bill and Roosevelt’s “second bill.” Roosevelt included everything the NRPB proposed, yet dropped NRPB Articles 6 and 7, which presumably he believed were adequately covered by the original Bill of Rights to the U.S. Constitution. What is remarkable about this, as well as the meaning and content of these rights as Roosevelt himself saw them, was the very clear intention that government not necessarily be the agent of direct provision; rather Roosevelt described the role government should play in ensuring that all Americans have access to these social and economic goods. This seems most evident in a right to “fair play” and the right to “live in a system of free enterprise.” It mentions that encroachments on these rights in particular might come from either the market (compulsory labor, irresponsible private authority, unregulated monopolies) or the state (arbitrary public authority), suggesting something much deeper than a simple statement of rights. One could, in fact, view the 1942 and 1943 NRPB reports as blueprints for the realization of economic and social rights, insofar as it is

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the role of the state to ensure opportunity and access to markets through its regulatory powers. Sunstein’s research on the background of the Second Bill of Rights highlights, in particular, a feeling shared by many within the Roosevelt administration that while capitalism was commensurate in many ways with a liberal democratic system of government, unregulated capitalism posed the most palpable internal threat. Adolf Berle, Jr., an economist who was widely known for his work on the modern role of corporations, theorized that the corporation might potentially become “the dominant form of social organization” in the United States and might very well supersede the state.79 Some of his ideas to combat this trend stemmed from Herbert Croly’s Promise of American Life, which was published in 1909 and was very influential on Theodore Roosevelt and his Bull Moose progressive party.80 Croly was also concerned with the domination of corporations in American economic and political life, and argued that the regulatory power of the state be used to combat that domination. In a 1932 speech that was largely written by Berle, Roosevelt expanded upon both Berle and Croly by turning the problem of unemployment into a very human one: the loss of personal security—­no less meaningful in an economic sense than a loss of, for example, freedom of movement (personal liberty). Roosevelt’s speech was also highly optimistic about the possibilities that the use of state authority in this way might bring and referred in this regard to the need for a new understanding of rights in a way that neither Berle nor Croly had articulated. The rise of the financial titans in the nineteenth century was possible because of, rather than in spite of, government assistance.81 While Theodore Roosevelt’s strategy was to control these corporations through the use of antitrust laws, FDR saw this as inadequate: “I feel that we are coming to a view through the drift of our legislation and our public thinking in the past quarter century that private economic power is, to enlarge an old phrase, a public trust as well.”82 Roosevelt believed that private industry should, as a moral duty, endeavor to keep that public trust, but should it not, “the Government must be swift to enter and protect the public interest.”83 By equating the Enlightenment ideal of a right to life with the right to make a comfortable living, Roosevelt articulated his contention that the state owes to everybody “an avenue to possess himself [of] its plenty sufficient for his needs, through his own work.”84 Indeed, one “may by sloth or crime decline to exercise that right, but it may not be denied him.”85 In this new formulation, the right to property takes on special meaning for the individual, especially as it relates to the security of savings; now understood as a right, the right to property would assure people the abil-

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ity to live through situations that “afford no chance of labor: childhood, sickness, old age.”86

Conclusion Universality must always pay a price to particularity. The ALI Statement, like its progeny, the Universal Declaration, sought to enumerate a broad set of rights “on which all [nations] unite [and which] can be expressed in a manner acceptable to their different traditions and conditions.”87 The drafters of the Universal Declaration, and John Humphrey, the Declaration’s first true architect, had the benefit of the ALI Statement as well as dozens of other draft bills that provided guidance to the drafting process. They needed to consider not only the content of any particular right or rights, but also the obligations that would be necessary for the rights to be protected, promoted, and fulfilled within any particular national context. No one wanted a bill of rights based on fantasy. This is why the ALI Statement was so crucial, for it soberly explored the question of state obligations and duties relating to all the rights—­civil, political, economic, and social—­that the ALI enumerated. The efforts of the Roosevelt administration to craft constitutional or legislative guarantees for these rights are further evidence of the serious thought that policy makers put into the central proposition that economic and social security were as central to the modern democratic welfare state as the protection and promotion of civil and political rights—­even knowing how far the United States needed to go in those areas. As the ALI Statement and the Roosevelt Second Bill and its predecessors make clear, state obligations for economic and social rights do not necessarily have to cross the line into direct state provision, which all of these proposals were anxious to avoid suggesting (because it implied a command economy). These proposals demonstrate that economic and social rights should be guaranteed through the regulatory and support functions that only the state can create and maintain, with the goal being equality of opportunity to enter markets and compete fairly within them. State regulation is necessary for preventing the emergence of monopolies and preventing the kinds of rapacious practices that opened the door for the Great Depression to get under way in the first place. Second, the state should foster opportunity by creating enabling conditions—­in the housing market, for example—­for people to secure their livelihoods (responding to housing shortages through incentives; extending tax benefits for home ownership) and punishing private actors for discriminatory practices that limit opportunity. Finally, these proposals recognize that it is the duty of a properly constituted welfare state to ensure that those who are unable to provide for themselves are

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Antecedents   31

given assistance. But this kind of direct provision was viewed as a last resort, and the creation of systems of social security were essential to preventing the kinds of vulnerabilities that would necessitate direct state support. In short, the ALI Statement and the Roosevelt Second Bill proposals looked upon state obligations to protect and promote what we now call economic and social rights in the same manner as for civil and political rights: to provide the institutional support necessary for their realization. Just as the state must create and maintain institutions for the protection of civil rights (a functioning, independent court system, police, and so forth), so must it provide institutional support for economic and social rights. But the drafters of the ALI Statement and government officials in the NRPB—­and even Roosevelt himself—­recognized the fine line between institutional support and direct provision with regard to economic and social rights (“it guarantees nothing to the loafer”). And, as the ALI drafters noted, it would be difficult to universalize state institutional support for economic and social rights, given differences in levels of development and wealth across societies and nations. Those difficulties are explored in detail in the next chapter.

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Chapter 3

International Guarantees and State Responsibility before the Universal Declaration

While both this chapter and the previous one examine the genealogical antecedents of the Universal Declaration of Human Rights, each explores a different dimension of the same question. The central question explored in Chapter 2 was how various bills of rights related economic and social rights to civil and political rights within a catalogue of rights guaranteed, protected, and promoted by the state. The focus there was on state obligations to individuals under their jurisdiction. The American Law Institute’s Statement of Essential Human Rights, which was clearly the closest ancestor to the Universal Declaration, addressed the question of state obligations in great detail, especially with regard to economic and social rights. The theme, therefore, of Chapter 2 was to demonstrate how deeply engrained the inclusion of economic and social protections and guarantees had become for the ideal of a properly constituted, modern, democratic welfare state. This challenges a dominant—­perhaps hegemonic—­belief that economic and social rights had their actual origins elsewhere (e.g., in socialism), or were rejected or opposed by the West.1 This chapter continues the genealogical tracing of the Universal Declaration’s ancestry—­especially the inclusion of economic and social rights in a catalogue of rights—­but focuses on the international aspect of proposals for a bill of rights. As we shall see, there were many connections between what is discussed in this chapter and what appeared in Chapter 2. Many of the same people were involved in a number of these efforts and fluidly moved between civil society and government agencies. Here I explore the discursive environment surrounding the international legal elaboration and guarantee of human rights, and especially of economic and social rights. What emerges is a growing consensus that economic and social rights be included in an international

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bill of rights, however difficult it might be to define precise obligations concerning their protection. All the proposals examined here reveal a constant, underlying concern for economic security—­not just of states, but within them as well. But, as they say, the devil was in the details. I first examine a number of international human rights proposals developed by a variety of civil society organizations, all of which led to the inclusion of references to human rights in the U.N. Charter and to the creation of the U.N. Commission on Human Rights. Then I turn to the initiatives (which may come as a surprise to some) undertaken by the U.S. Department of State during World War II to elaborate a draft bill of rights (including economic and social rights) that State Department officials originally intended to include within or as an attachment to the U.N. Charter. The second half of the chapter looks more broadly at context and extends the genealogy further back in time in order to explore the discourses on state responsibility and obligation on questions of rights early in the war (proposals by H. G. Wells) and during the interwar period. The chapter concludes by jumping forward in time, landing us on the eve of the founding of the Commission on Human Rights and its mandate to draft an international bill of human rights, by examining Hersch Lauterpacht’s extensive study of the international law of human rights.

The World Citizens Association I begin first with the World Citizens Association’s Onwentsia Conference2 held in Lake Forest, Illinois, in late 1941. It brought together a group of international relations experts, the majority of them from academia. University of Chicago Professor Quincy Wright, who would later gain fame for his work in studying the causes of war, organized the sections of the meeting dealing with the question of human rights. He would later take up similar responsibilities for two other groups: the Commission to Study the Organization of Peace and the Universities Committee on Post-­War International Problems, which I discuss in more detail later in the chapter. At the Onwentsia Conference, Wright proposed a six-­point bill of rights as part of the quasi-­constitutional structure of any postwar international organization, be it a new one or a revamped League of Nations. In his view, any bill of rights would have to include freedom of opinion and religion (along with the recognition that such rights were not absolute but relative to other rights); freedom of communication, including freedom to use the press and the radio; freedom of trade and economic enterprise; freedom from economic exploitation; equality before the law, especially for foreign nationals; and nondiscrimination based on

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race, religion, or nationality. This last right was intended to universally embody the principles embedded within the minorities clauses of the peace treaties ending World War I. The two economic rights in Wright’s short bill reflect two sides of the same coin: freedom to engage in economic activity, and freedom from exploitation by market forces. The latter was based on a long tradition of, for example, abolishing the slave trade and the protection of labor rights through the several International Labor Organization (ILO) conventions that had come into force since the 1920s. Of course, the ILO was the most important of the League of Nations bodies that would continue its work under the auspices of the new United Nations. The discussions at the Conference focused mostly on questions of what these rights were meant to uphold or protect and who the intended beneficiaries were to be—­states, nations, or “peoples.” The potential confusion here arises from the fact that the freedoms included in Roosevelt’s 1941 State of the Union address and those articulated in the Atlantic Charter were not clear. To recall the text of the State of the Union speech: In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression—­everywhere in the world. The second is freedom of every person to worship God in his own way—­everywhere in the world. The third is freedom from want—­which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants—­everywhere in the world. The fourth is freedom from fear—­ which, translated into world terms, means a world-­w ide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor—­anywhere in the world.3

And the relevant excerpts from the Atlantic Charter: [The United States and the United Kingdom] deem it right to make known certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world. . . . ​Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-­government restored to those who have been forcefully deprived of them; Fourth, they will endeavor, with due respect to their existing obligations, to further the enjoyment by all states, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity; Fifth, they desire to bring about the fullest collaboration between all Nations in the economic field with the object of securing, for all, improved labor standards, economic advancement, and social security; Sixth . . . ​t hey hope to see established a peace . . . ​which will afford assurance

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to all the men in all the lands [so that they] may live out their lives in freedom from fear and want.4

It was possible, in Wright’s view, that the words “peoples” and “all men” were intended to mean collectivities, and therefore states rather than individuals were meant to be the beneficiaries. However, he wondered why the language was used this way. In Wright’s view, Roosevelt interpreted freedom from want and fear, as expressed in the 1941 State of the Union address, as national rather than individual rights, but these distinctions might not have been intended. 5 One clue to Roosevelt’s intention can be found in parts of the speech that preceded the section on the four freedoms. Roosevelt was reflecting on the war in Europe and the vital importance of an American commitment to providing the necessary matériel to those countries opposing the Axis powers. Roosevelt reminded the nation that democracy and freedom, and the institutions that protected them, were at stake. This demanded sacrifice on the part of the public. But that sacrifice was part of a two-­way relationship between the people and the government in a “healthy and strong democracy”: The basic things expected by our people of their political and economic systems are simple. They are: equality of opportunity for youth and for others; jobs for those who can work; security for those who need it; the ending of special privilege for the few; the preservation of civil liberties for all; the enjoyment of the fruits of scientific progress in a wider and constantly rising standard of living. These are the simple, basic things that must never be lost sight of in the turmoil and unbelievable complexity of our modern world. The inner and abiding strength of our economic and political systems is dependent upon the degree to which they fulfill these expectations.6

For the participants at Onwentsia, the importance of these questions hinged on overarching matters with regard to what rights should be included, to whom or what obligations for protecting them should be extended, and what actions to correct violations would be the most appropriate.7 As the discussions ensued, it became clear that the actual content of what should be included as a right in any international bill could be settled only after some agreement was reached on the international character of these rights, and to what extent any international organization would be empowered to both define rights and obligations, and provide effective remedy for confronting violations. The inclusion by Wright of a “freedom to trade” was a particular sticking point, especially alongside some fairly traditional civil rights and liberties. Alvin Johnson, who was at the time the Director of the New School for Social Research in New York City (he had also been the

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editor of the New Republic magazine), recalled the natural law theory of “Francis of Victoria”8 concerning property. Vitoria posited that property right affixed to the product of one’s own hand and work, and one thus had a right to give it away or swap it for some other thing. However, “Victoria [sic] never assumed that he had a right to go into the profession of buying things to sell again. That profession . . . ​is a profession which, in a thousand different directions, needs regulations. Shall one sell something that gives a lady a permanent wave, and then finds she turns up dead the next morning? There are all sorts of sanitary regulations, regulations of profiteering, and such, and if you were to give the right to buy and sell freely without regulation you would be going in opposition to almost all the experience of mankind.” 9 Although Wright did not include a right to social security, Dr. Ludwik Rajchman proposed it be added. Rajchman had been head of the Health Organization of the League of Nations and would become involved with members of Roosevelt’s Brain Trust—­a small group of advisors who were highly instrumental in engineering the New Deal and would later become strong advocates within the administration of a proactive approach to postwar planning. When asked to define social security, Rajchman stated the value of such a right would be in its protection of an individual’s ability “to maintain his family and himself not in a state of undernourishment . . . ​, the right to work, and the right to bring up his children in proper, healthful surroundings in addition to general protection affecting his condition of work.”10 But Rajchman also recognized the potential difficulty of defining such a right in universal terms, given different levels of development worldwide. However—­and as we shall see later with the Roosevelt administration proposals—­the recognition of such a right within a larger framework fits with Wright’s overall feeling that securing human rights, and especially political and social rights, was indispensable to the formation of a “vested interest” among the public, whose support for any future international organization would be necessary.11

The Universities Committee and the Commission to Study the Organization of Peace The work begun by the World Citizens Association in 1941 would be carried on by two other groups formed after the United States entered World War II in December 1941: the Universities Committee on Post­War International Problems, and the Commission to Study the Organization of Peace (CSOP). Quincy Wright held leadership positions on the topic of human rights within both organizations. The Universities Committee was a loose federation of nearly a hundred separate groups based

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International Guarantees   37

at universities and colleges throughout the United States. The average number of people in each university-­based group was around twenty; total membership was approximately 1,900.12 Cooperating groups examined different problems related to the postwar international order, prepared working papers that were sent out to the various university­based groups, received feedback, and eventually published their summaries of the reports of cooperating groups in a special issue of the journal International Conciliation in 1944.13 In his summary of responses to his analysis paper “Protection by International Action of the Freedom of the Individual within the State,”14 Wright reported that the consensus among the forty-­t wo groups that responded was that the idea of human rights was contextualized, meaning that in the contemporary world, the older idea of natural rights had given way to a set of legal rights, on the one hand, and moral rights, on the other. The latter, of course, once recognized, were relatively easily guaranteed through national legal systems. On the other hand, moral rights “ought to belong to individuals whether they are officially recognized and embodied in laws or not.”15 There was widespread recognition that while positive and negative rights are both important in terms of what they strive to protect and promote, the distinction was not trivial. As Wright wrote in his initial analysis paper: It is clear that the negative freedoms are easier both to define and to realize than the positive freedoms. The former can theoretically be preserved by judicial action which sets a limit to legislative encroachment upon individual freedom. The latter can only be realized by legislative and administrative organization and activity, the details of which are to a considerable extent upon the particular conditions of opinion, government, economy and society among the groups affected. In the latter field a Bill of Human Rights could only state objectives and standards in broad terms, leaving extensive freedom for adaptation by international, national and local legislative authorities.16

Consensus among the Universities Committee groups on what should be included in an international bill of rights varied. Among the forty­t wo responses, there was near-­unanimous consensus that freedom of expression and religion should top the list, followed by “freedom from despotism” (or what we might call judicial procedural rights dealing with arrest, detention, privacy, and jury trials, etc.). Democratic rights (i.e., political self-­determination) were the next most popular. Two of the freedoms mentioned in the Atlantic Charter, “freedom from fear” and “freedom from want,” were seen to be stated in very general terms that cover many things. One widespread understanding of “freedom from fear” suggests dealing effectively with the problem of external ag-

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gression in international affairs, and therefore was viewed as a right of states rather than an individual right.17 Eight groups believed that economic rights such as the “freedom to trade” should be articulated in an international bill of rights. However, a “freedom to travel on the high seas” was not really understood as an individual, human right.18 A right to education was included by four groups, and there were widely scattered votes in favor of many other rights.19 Closely related to the work of the Universities Committee was the Commission to Study the Organization of Peace (CSOP), a working group of which eventually produced a Draft Bill of Rights, which was published in February 1947. The Commission began as a research body of the League of Nations Association, in response to the outbreak of war in 1939. The initiative was started by James Shotwell (a historian at Columbia University and a member of the U.S. Delegation to the Paris Peace Conference of 1919) and Clark M. Eichelberger. At the time the Commission began to work on an international bill of human rights (immediately after the Dumbarton Oaks meetings in 1944), Shotwell was also heading up the postwar planning initiative within the U.S. State Department, which also included a draft bill of rights, as we shall see later in this chapter. The purpose of the Commission was “to engage in a thorough and comprehensive study of all aspects of the problem of international peace, with special emphasis on plans for a future world organization to maintain peace and promote the progress of mankind.” 20 The Commission and its members were highly influential on the development of U.S. foreign policy, especially regarding the negotiations leading to the establishment of the United Nations. In 1949, John Foster Dulles, who was then on the U.S. delegation to the United Nations, stated “in all sincerity that the Commission . . . ​made an indispensable contribution to the creation of the United Nations.” 21 A total of forty­seven members of the Commission were on the U.S. Delegation to the San Francisco Conference.22 The Commission produced four reports during the war. Part III of the Commission’s Fourth Report, entitled International Safeguard of Human Rights, was issued in May 1944.23 In its General Statement, issued along with Parts I and II of the Fourth Report, the Commission stated its mission: “The first step in the clarification of our thinking is to recognize the fact that international relations naturally fall into three great divisions, security, justice and welfare: security against war, a division which is primarily political in character; provision for assuring justice and a regard for human rights, extending beyond the field of international law into that of national as well as international moral-

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International Guarantees   39

ity; and the welfare or livelihood of nations, primarily but by no means entirely economic.”24 As the Commission saw it, the general international organization “should provide for the eventual participation by all nations capable of fulfilling their responsibilities” (italics mine), and that those would include the adoption by national constitutions of basic laws and guarantees especially of constitutional civil freedoms (speech, religion, press, assembly). Besides these constitutional civil freedoms, the CSOP Bill included freedom of information, the establishment of adequate legal machinery in each nation, avoidance of discrimination, 25 migration and statelessness, and economic and cultural rights: “human rights are interwoven with economic security, particularly the security to pursue one’s own vocation.”26 The Bill was endorsed by some forty organizations in the United States. It was widely considered to be, primarily, an “American” statement on human rights. It continued the work of the Commission’s consultants to the American delegation at the San Francisco Conference, which, while unofficial, was considered to be representative of American public opinion.27 The CSOP proposal includes three articles on economic and social rights. “They are designed to insure not merely the negative benefit of protection against arbitrary and oppressive rule, but the positive assurance of normal conditions of livelihood which make for the larger freedom.”28 In the Commission’s view, “There is no difference of opinion as to the tyranny of privation and want. There is no dictator more terrible than hunger.29 In its relentless power a man sinks to the level of an animal. It is recognized fully that if we are to live up to the promise of the Charter of the United Nations, we must deal with this problem not with the casual interest of those who have not experienced such suffering, but with the sympathetic insights of those who can realize the prime need of the underprivileged. At the same time, we have to admit that the terms of the problem itself are so new that there is great difference of opinion as to how to best solve it.”30 The economic and social rights that are included in the Commission’s draft Bill are consistent with many others, especially the ALI Statement of Essential Human Rights. One notable absence here is that the Commission did not include a specific right to property, although property is subsumed under a general privacy right: freedom “from arbitrary searches and seizures and from unreasonable interference.” What is remarkable is the nearly word-­for-­word exactness between several of the articles in the Commission’s draft bill and those included in the ALI Statement. For example, Article 16 of the Commission Bill enumerates a right to education, as does Article 11 of the ALI Statement. It stipulates that the state has a duty to require that “every child within

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its jurisdiction” receive primary education, and “to maintain or ensure” that there are facilities which are “adequate and free,” and to “promote the development of facilities for further education that are adequate and effectively available to all residents.”31 Article 17 of the Commission bill, outlining a right to social security, is reproduced word-­for-­word in Article 15 of the ALI Statement, with the exception that the ALI created a separately enumerated right to adequate food and housing (Article 14). Articles 12 and 13 in the Statement regarding the right to work and to adequate working conditions are enumerated by the Commission in Article 18. Although the wording here is not nearly as exact, the emphasis—­as with the ALI—­is on the state’s obligation to use its regulatory and policy-­making authority to influence overall economic conditions and to set wage and workplace standards.

The U.S. State Department Draft of an International Bill of Rights The second of the Roosevelt administration’s two-­part effort on human rights emerged in the U.S. State Department immediately after World War II began. Many of the same figures who played a role in drafting the National Resources Planning Board’s (NRPB) bill of rights (and Roosevelt’s Second Bill) were, interestingly enough, also involved in the State Department—­most notably Adolf Berle, who was by 1942 an Assistant Secretary of State. Others included James T. Shotwell, who, as we have seen, was involved with the ALI and the Universities Committee, and was Chairman of the Commission to Study the Organization of Peace. Undersecretary of State Sumner Welles was also involved in this work until he was eventually ousted from the State Department in 1943.32 In October 1939, the State Department formed the Advisory Committee on Problems of Foreign Relations, which, after a period of relative inactivity, was reconstituted as the Advisory Committee on Post-­War Foreign Policy in late 1941. Part of its mission within the State Department, according to the proposal sent to Roosevelt by Secretary of State Cordell Hull, was “to translate into a program of specific policies and measures the broad principles annunciated in the Atlantic Declaration [sic] and in your other pronouncements on post-­war policy.”33 The Atlantic Charter, of course, articulated the aims of the war as seen by the United States and Great Britain, promulgated by Roosevelt and Churchill on August 14, 1941. The Advisory Committee consisted of State Department officials and others from throughout the administration, as well as a number of prominent figures from outside government.34 The Committee began meeting in February 1942 under a cloak of secrecy—­in case the war were to go on for a much longer time than anticipated.35 The focus of the Committee’s work was postwar planning

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rather than the conduct of the war or wartime foreign policy itself. The Committee was made up of six subcommittees: three on political problems, two dealing with economic issues, and one to coordinate work within the Committee and serve as a conduit to nongovernmental groups working on postwar issues (such as the Universities Committee and the CSOP). The three political subcommittees dealt with political problems, territorial problems, and security. The Subcommittee on Political Problems was chaired by Sumner Welles, who is often credited as being the chief architect of what would later become the United Nations system. The members of this subcommittee, who also formed a special subcommittee on Legal Problems that would draft a bill of human rights, included Adolf Berle (a very close associate of Welles), Benjamin V. Cohen (who, like Berle, was an architect of the New Deal and part of the Brain Trust), Green J. Hackworth (who served as Chair and was a legal advisor in the State Department), Brooks Emeny (of the Council on Foreign Relations), and James T. Shotwell. Despite its secrecy, evidence of the Committee’s work during 1942 appeared in a number of formal and informal speeches and other remarks given by Hull starting in the summer of 1942. The purpose of these speeches was to keep the public informed about the crucial points of postwar policy agreed upon by the Allies, and to show that the State Department had taken an active role in their preparation.36 In a notable radio address delivered by Hull on July 23, 1942, he underscored the importance of economic security in the postwar world: Liberty is more than a matter of political rights, indispensable as those rights are. In our own country we have learned from bitter experience that to be truly free, men must have, as well, economic freedom and economic security—­t he assurance for all alike of an opportunity to work as free men in the company of free men; to obtain through work the material and spiritual means of life; to advance through the exercise of ability, initiative, and enterprise; to make provision against the hazards of human existence. We know that this is true of mankind everywhere. We know that in all counties there has been—­and there will be increasingly in the future—­demand for a forward movement of social justice. Each of us must be resolved that, once the war is won, the demand shall be met as speedily and as fully as possible.37

The Special Subcommittee on Legal Problems considered the question of human rights from August 21 to early December 1942. The subcommittee believed that the international recognition and guarantee of the protection of basic human rights within each country would be necessary preconditions for the maintenance of international peace: “The aim was to formulate the basic rights of individuals that should be universally respected, even if not formally subscribed to by all states, in a brief and forceful statement of general principles. This should include

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both traditional rights and certain principles of social and economic justice that were beginning to be regarded as basic. Accordingly the subcommittee’s work related to personal freedoms, property rights, social rights, political rights, and procedural rights.”38 On December 3, 1942, the Special Subcommittee submitted a Draft Constitution of International Organization, which would serve as the basis for American negotiators at the Dumbarton Oaks conference that would begin in August 1944. The draft included a proposed bill of human rights comprising sixteen articles, the first stating plainly that “governments exist for the benefit of the people and for the promotion of their common welfare in an interdependent world.”39 Whereas the first substantive article deals with economic and social rights, it does so very broadly, covering many items in one package: “All persons who are willing to work, as well as all persons who through no fault of their own are unable to work, have the right to enjoy such minimum standards of economic, social and cultural well-­being as the resources of the country, effectively used, are capable of sustaining.”40 Considering the content of the other bills I have reviewed up to this point, this article is clearly far more vague and nonspecific than many others. In fact, the qualifier about national resources would appear again in the text of Article 2 of the ICESCR (“to the maximum of its available resources”). Article VIII enumerates an equal right of everyone to “participate in education publicly provided.”41 All the other articles cover the typical civil and procedural rights. There is no specific right to property, but there is a prohibition against its seizure, “except in accordance with . . . ​ processes of law.” Although many point out the absence of any references to human rights in the Dumbarton Oaks proposals, the Research Staff of the State Department changed the name of this draft from “Bill of Rights” to “Declaration of Human Rights,” and appended it to its Charter of the United Nations, carried by U.S. negotiators to Dumbarton Oaks.42 “The drafters of the Staff Charter thought that the Declaration should be negotiated and ratified along with the Charter in order to facilitate the universal attainment of the Four Freedoms.”43 However, other considerations led to it being dealt with separately, including the problems that would be raised with having to amend the Charter in order to add new rights.44

The Human Rights Campaign of H. G. Wells Perhaps due to the fact that they lacked the universal character of the wartime proposals for human rights, or only dealt with a limited number

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of rights, several proposals for making the protection of human rights a matter of international law are often overlooked or understated by much of the literature on the history of human rights. As a matter of understanding the discursive environment that eventually contributed to the idea of human rights, however, several of these proposals and efforts bear scrutiny, especially with regard to the ways in which the content of a package of rights was conceived, and how they dealt with the question of state obligations and potential avenues for enforcement. Jan Herman Burgers offered the first comprehensive look at some of these interwar efforts, challenging the popular belief that the reason the protection of human rights was included as a central tenet of the United Nations was strictly in reaction to (especially) Nazi totalitarianism.45 He focuses in particular on the public speaking and writing campaign by noted author H. G. Wells in 1939 and 1940. Wells eventually published a volume of his newspaper essays in 1940, entitled The New World Order, which included his own Declaration of the Rights of Man. While Burgers accounts for Wells’s exhaustive campaigning on the topic of human rights, suggesting—­r ightly so—­that a public movement was underfoot long before the United Nations was even a possibility, the overall context within which Wells proposed his Declaration is lacking from his account. Wells was obviously concerned about the breakdown in international politics that led to the Second World War and focused in particular on the role of economics in that breakdown. Getting rid of Hitler and the Nazis alone would not solve the ills that led to war: “It is the system of nationalist individualism and unco-­ordinated enterprise that is the world’s disease, and it is the whole system that has to go.”46 While Wells believed that the war was fundamentally driven by a kind of class struggle, he rejected Marxism—­especially Soviet Marxism—­a s inadequate to the task of understanding this in a way that would lead to meaningful solutions: “And so here they are, hammer and sickle in hand, chest stuck out, proud, magnificent, commanding, in the Manifesto. But go and look for them yourself in the street. Go and look at them in Russia.”47 While Wells endorsed the idea of a world order based on some sort of collectivist or socialist system, he saw the Soviet Union as a corruption of that ideal; that it “confirms in every particular my contention that the class-­war idea is an entanglement and perversion of the world drive toward a world collectivism, a wasting disease of cosmopolitan socialism.”48 In Wells’s mind, the age of a world of fragmented, separate, and competing states was at an end.49 Countering proposals for world federation based on a system of independent sovereign democratic states, 50 Wells instead called for a “revolution of conspiracy”—­basically a public opinion movement based on education for collective world citizenship

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and economic production. This revolution would be “new and complete,” based on outright scientifically planned and directed socialism; a system of law based on “fuller, more jealously conceived restatement of the personal Rights of Man,” and the “completest freedom of speech, criticism and publication.”51 Wells provides his own historical account of the movement from systems of right to systems of rights. The former is based on the notion of fulfilling one’s duty; the latter to “provide a structural defence between the citizen and the necessary growth of central authority.”52 As for the former, throughout history people “had been taught and they believed and they had every reason to believe: ‘this (that, or other thing) is right. Do right and nothing, except by some strange exceptional misfortune, can touch you. The law guarantees you that. Do right and nothing will rob you or frustrate you.’”53 A new declaration “must, because of the increasing complexity of the social structure, be more generous, detailed, and explicit than any of its predecessors.54 Wells’s Declaration begins by pessimistically declaring, “Since a man comes into this world through no fault of his own, since he is manifestly a joint inheritor of the accumulations of the past, and since those accumulations are more than sufficient to justify the claims that are made for him, it follows . . .”55 He then outlines in prose ten groups of rights, most of which contain a number of different parts. As we shall see, they are not listed as they might be in a standard bill, enumerating a right and perhaps adding in some content as to how the obligation to respect or protect that right is to be understood. With a few exceptions, his Declaration speaks in the language of entitlement, which suggests to me that Wells was far more concerned about how the objects of those entitlements might be obtained or protected. The prose-­form is a far cry from most other declarations or bills, which tend emphasize brevity and conciseness. The first entitlement is of “every man, regardless of race, color or professed belief or opinions” to “the nourishment, covering, medical care and attention needed to realize his full possibilities of physical and mental development and to keep him in a state of health from his birth to death.”56 As the first substantive entitlement, one notes its instrumental value for realizing one’s own potential through a process of physical development. It is somewhat odd, however, that Wells bestows this entitlement only to every man. Nowhere does he suggest something akin to a nondiscrimination clause. The second entitlement is to education, sufficient enough to “make him a useful and interested citizen.”57 He includes “special education to develop talents and gifts in the service of mankind,” and ties this notion of education into an entitlement to information “upon all matter of

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common knowledge throughout life and utmost freedom of discussion, association and worship.”58 The flow from education to expression/discussion, then to association, and finally to worship seems consistent with other proposals, except that education is not usually included in this grouping of rights. The third group concerns the right to work: “Any man may engage freely in any lawful occupation, earning such pay as the need for his work and the increment it makes to the common welfare may justify.”59 Wells also makes paid employment and free choice of employment, where available, an entitlement. The last part of this grouping seems somewhat strange: “He may suggest employment for himself and have his claim publicly considered, accepted or dismissed.”60 He does not explain what he means. It would seem to me that a market would constitute “public consideration, acceptance, or dismissal” of a proposed job one would like to hold: if one were to decide to make toothpicks, but there was no market for toothpicks, to what, then, would that person be entitled under Wells’s formulation? Wells’s fourth group actually enumerates a right (rather than an entitlement) to “buy or sell without discrimination anything which may lawfully be bought or sold in such quantities and with such reservations as are compatible with the common welfare.” But Wells adds a caveat that the importance of this market freedom is not to secure income or make a profit.61 While he does not elaborate on this point, it seems to suggest that the right itself is more important as an expression of human freedom than its instrumental value in securing other things. With the fifth group we see the intersection between what we might consider a property right and a civil right, “That he and his personal property lawfully acquired be legally protected and by the police from private violence, deprivation, compulsion and intimidations.”62 In most other formulations of a right to property, or to be free from arbitrary seizure or deprivation of privacy, the wording typically assumes the state to be the potential violator. Many, for example, make reference to just compensation for the taking of property as a matter of eminent domain. But here we see that Wells was primarily concerned with private violence, deprivation, compulsion, and intimidations. The sixth group links a general right to privacy to freedom of movement, “at his own expense”—­that is, this is not a broad right to travel. Nor is it an absolute right, for it may be offered protection only so long as such movement is not “destructive of some special use, dangerous to himself, or seriously inconvenient to his fellow citizens.”63 The seventh group stipulates that those accused of crime be charged within six days and that they be tried within three months. This group also includes protections from conscription into the military or police of those

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who consider themselves to be conscientious objectors to such service.64 Linked to these wide-­ranging and general rights, the eighth group includes protections against “injurious or distressing lying and misrepresentation by others” and a probation against the state keeping secret files or dossiers, or conversely, the right of a citizen to be able to review such files privately. It also prohibits the use of such files in a criminal proceeding unless their contents are confirmed in open court.65 The ninth group of rights broadly falls under the category of bodily integrity and prohibits mutilation or sterilization, bodily assault except to restrain his own violence, and torture, beating, or other bodily punishment. It also includes a right to decent prison conditions (especially the right to be free from exposure to “verminous or infectious people”) and prohibits forced feeding and forced administration of drugs (without the knowledge and consent of the person—­obvious as that may seem). Finally, this group confines the length of a prison sentence to no longer than fifteen years or death. Interestingly, Wells states that there is nothing in his Declaration that precludes abolition of the death penalty, but he does not specifically call for it.66 Finally, Wells’s Declaration requires that its provisions be “fully defined in a code of fundamental human rights” (italics mine; the first time he uses this term) that is accessible to everyone, and whose principles “shall not be qualified nor departed from upon any pretext.”67 While Wells felt that the wording of his Declaration might not be entirely correct, in content, “it embodies the goodwill of mankind from pole to pole.”68 I have gone through the Wells Declaration in this manner to demonstrate that it is not enough to say, as does Burgers, that there was a human rights movement under way long before the atrocities of the Nazis became widely known, and that in particular Wells’s Declaration is exemplary. What is important here is the wider context within which Wells’s campaign for human rights was embedded, namely, as part of his own scheme for a “new world order” based on some type of socialist collectivism. In his Declaration, he says little to nothing about the positive role of the state, written so much as it is in the negative (prohibitions against actions by powerful agents). Of course, he includes market actors in this as well, in terms of economic rights and privacy rights. Historically speaking, it is important to note that while this campaign for a new world order coincided with the breakdown of the international system and the outbreak of war, the popularity of Wells’s proposals was widespread only during the period of the so-­called Phony War, between the invasion and occupation of Poland by Germany in September 1939 and Germany’s invasion of the Low Countries in May of 1940. The fall of Paris and the hasty retreat of the British at Dunkirk, along with the

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German bombing of London, put an end to what many soon came to realize was a rather utopian set of proposals. Considerations of human rights that would come later were always embedded within a wider set of proposals for the postwar international system—­proposals that culminated in the establishment of the United Nations. Still, it is evident that other human rights advocates at the time recalled Wells’s Declaration, even though it had been supplanted by so many other, more sophisticated proposals by the time the war was over. Indeed, in its own proposals for the United Nations Charter, the editors of Free World, in May 1945, proposed that Chapter I of the Charter consist of the Rights of Every Man. In their list of twenty-­one enumerated rights, one finds echoes of Wells’s proposal, especially in the wording of several of the rights contained therein. For example, Free World’s Article 13 protects individuals from “lying, slandering, misrepresentation that may distress or injure” a person.69 Article 15 guarantees a right to protection “of himself and his property from private violence, deprivation, compulsion and intimidation”—­a word-­for-­word recitation from Wells’s proposal.70 Free World’s Article 17 has the same time limitations on the holding of those accused of crime before being charged (six days) and when a trial needs to be held (within three months) as articulated by Wells. In their statement, the editors of Free World base the workability of their human rights proposals on the effect of world public opinion, which certainly links it to the public efforts of a person of Wells’s stature and reputation, especially in Great Britain. Incidentally, a number of people from other organizations and groups that I have already covered sat on Free World’s international board, including Henri Bonnet (of the World Citizens Association), Ben Cherrington (who was on the Universities Committee and the Commission to Study the Organization of Peace), Quincy Wright, Archibald MacLeish and Harold Ickes (who were on the U.S. State Department Post-­War Planning Committee), and several figures who would become part of the human rights system within the U.N., such as H. V. Evatt and Henri Laugier.

The 1929 Declaration of the International Rights of Man I turn finally to efforts to articulate human rights as a matter of national and international concern before World War II. Most of the literature reminds us of the absence of any specific language on human rights in the Covenant of the League of Nations, with two fairly significant caveats: the Constitution of the International Labor Organization and references to the protection of minorities within the League “Mandates.” However, there were at least two proposals within the League itself to

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universalize the protection of religious and other minorities—­clauses that were included in the several treaties that formally closed World War I—­as a general prohibition against any form of discrimination in any country. The most notable in this regard was the Declaration of the International Rights of Man, published by the French Institut de Droit International in October 1929. Recall that Louis Sohn found the Declaration when he was preparing background materials as the American Law Institute began to work on its Statement of Essential Human Rights in 1942. This Declaration had undergone nearly eight years of drafting within the Institut and was actually meant to build upon an earlier effort—­t he Declaration of the Rights and Duties of States—­t hat was adopted by the American Institute of International Law in 1916 (more on this below). These two efforts are, in a sense, intricately linked to one another, and the 1916 American Institute Declaration has a genealogical root in a protocol signed in Berlin in 1878, in which Britain, France, Italy, and Germany recognized the independence of Serbia as part of the overall settlement of the Balkan Crisis of 1876. The plenipotentiaries of those states, in admitting Serbia to the concert of Europe as an independent state, stipulated that the defense of religious liberty was integral in entering the family of civilized nations: “Prince Bismarck, after having summed up the results of the vote, declares that Germany admits the independence of Serbia, but on condition that religious liberty will be recognized in the principality. His Serene Highness adds that the drafting committee, when they formulate this decision, will affirm the connection established by the [Berlin] Conference between the proclamation of Serbian independence and the recognition of religious liberty.”71 The basis for the inclusion of similar provisions in the treaties concluded at the end of World War I was stated in a letter to the Prime Minister of Poland written by French president Georges Clemenceau: “This treaty does not constitute any fresh departure. It has for long been the established procedure of the public law of Europe that when a state is created, or even when large accessions of territory are made to an established state, the joint and formal recognition by the great Powers should be accompanied by the requirement that such state should, in the form of a binding international convention, undertake to comply with certain principles of government.”72 The letter continues, “There rests, therefore, upon these Powers an obligation, which they cannot evade, to secure in the most permanent and solemn form guarantees for certain essential rights which will afford to the inhabitants the necessary protection whatever changes may take place in the internal constitution of the Polish state.”73

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While pointing out that the provisions in the treaty with Poland differ somewhat from those of the Congress of Berlin, Clemenceau accounts for the fact that such expectations have varied throughout history and were crafted according to circumstance. In particular he mentions the obligations undertaken by the Kingdom of the Netherlands in 1814 with regard to the Belgian provinces it annexed at the close of the Napoleonic wars, and that these “formed an important restriction on the unlimited exercise of its sovereignty.”74 He also cites instances in history where the recognition of a state’s sovereignty required a state to take a particular form—­Greece, for example, was to be “both monarchial and constitutional.”75 The particular provisions in the treaty with Poland are both universal (e.g., extending rights to citizenship to all minorities within a territory) and particular (i.e., the rights of German-­speaking minorities in Poland). The text of the 1929 Declaration of the International Rights of Man opens with the principle that “the juridical conscience of the civilized world demands the recognition for the individual of rights preserved from all infringement on the part of the State.”76 It establishes a basis for constitutional protections of rights on the part of the state, citing several examples from the U.S. Constitution in particular. Article I establishes that it is the duty of the state to protect rights—­in particular, the fundamental rights of life, liberty, and property—­to everyone within its territory “without distinction as to nationality, sex, race, language or religion.”77 Interestingly, the five articles that follow enumerate state obligations to recognize rights. In this respect, the wording is quite similar to most of the rights contained in the ICESCR, which obligate states­parties to “recognize the right of everyone to x.” The principle of nondiscrimination is central to the Institut Declaration. Article IV prohibits states from refusing “to any of their nationals private and public rights, especially admission to establishments of public instruction, and the exercise of the different economic activities and of professions and industries” if such discriminatory actions are based, directly or indirectly, on distinctions of sex, race, language, or religion.78 Article V stipulates, “The equality herein contemplated is not to be nominal, but effective. It excludes all discrimination, direct or indirect.”79 The drafting history of the Institut Declaration is instructive as to its intended scope and purpose. As George Finch pointed out, the Institut was a private organization and “its pronouncements accordingly have no validity except the prestige of its distinguished members.”80 However, it is significant that it was drafted and deliberated by over sixty members from the Americas, Europe, and Asia, and that it was the first such statement of its kind to “impose on all nations a standard of conduct towards

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all men, including their own nationals. It thus repudiates the classic doctrine that states alone are subjects of international law.”81 Drafting of the Declaration began in 1921, partially in response to the 1916 Declaration of the Rights and Duties of States, adopted separately by the American Institute of International Law and the Union Juridique International.82 Albert de Lapradelle, a professor of international law at the University of Paris, presented a first draft to the Institut, which included two articles that did not appear in the final Declaration that was adopted in 1929. The original Article 6 read, “States have obligations not only to respect other States, but also to respect persons; there are cases in which the duty to respect the life, the liberty, the belief of individuals or groups has priority over the duty to respect the liberty of other States.”83 The original Article 7 read, “The community of States and its members forget that, while individuals are subordinate to a State domestically, the State’s role in the world is only to serve as a means for achieving a goal—­making Humanity more perfect—­and a State would fail to do its duty if it neglects to pursue this goal.”84 Lapradelle admitted that while Article 7 did not directly say that individuals could be the subject of international law, it nonetheless reflected “the indisputable principle that a State loses its main purpose if it does not allow an individual to achieve the maximum of his abilities.”85 What I find remarkable is such a clear statement on the purpose of the state as an institution—­to promote human development—­insofar as the idea of universal human rights was still in its infancy. The recognition that a state would fail in its duty as a state if it were not to pursue the goal of “making humanity more perfect,” through, for example, the promulgation and protection of rights, is among the most significant developments during this early period. Even more interesting perhaps is not its progressiveness—­an attempt to envision a world of the future—­but rather how it reaches into the past for its inspiration. As we shall see, that inspiration was provided by the 1916 American Institute of International Law’s Declaration on the Rights and Duties of Nations. André Mandelstam, who would eventually become the rapporteur of the Commission for the Protection of the Rights of Man and Citizen and of Minorities within the Institut, considered these two articles to be particularly important—­a s important as the establishment of the League of Nations itself. He reminded other members of the Institut of the minorities provisions in the post–World War I treaties: “These treaties constitute real charters of human rights, and have the character of fundamental laws which cannot be overruled by internal laws.”86 Eventually Mandelstam came to the conclusion that a General Convention on Personal Autonomy of Minorities would make the most sense. He set about drafting “an elaborate document designed to improve upon the

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postwar treaties, and to provide in addition a special kind of autonomy that he called ‘personal,’ that is, applicable not only to a particular part of the territory of a state but to persons wherever they live in the state.”87 It was presumed that violations of this convention were to be brought to the Council of the League of Nations or to the Permanent Court of International Justice by other states—­not by individuals. Upon this draft, prepared in 1925, the Institut took no action, but the Commission was “allowed to restrict its work to the protection of the rights of man and citizen ‘of minorities’ only.”88 A proposal to prepare two instruments was introduced at the annual meeting of the Institut in 1928: a short declaration on the rights of man and the citizen, and a longer declaration on the protection of minorities. Thus, the 1925 draft of the Declaration was considerably revised, but then it was set aside. In 1929, Mandelstam offered a short report and a revised text of the Declaration. In it, he added property and religion to the rights to life and liberty.89 According to Sohn, the shift in emphasis came as a result of a debate in the Assembly of the League of Nations in September 1925, when it became clear that there was strong opposition to the universalization of the minority provisions of the postwar treaties. The opponents proposed instead the universalization only of “those rights of man and citizen that constituted the minimum acceptable to all states, equalizing at least to that extent the obligations of other states with the obligations imposed on the states bound by the postwar minority treaties.” 90 A year after the Declaration’s adoption by the Institut, an addition was made: that “resort to the Permanent Court of International Justice be allowed as a matter of right, without requiring the permission of the State or States involved; inasmuch as the rights set forth in the declaration are inherent in the nature and dignity of the human being, not derived from the State, they should not be submitted to the control or final decision of any State.”91 The existence of the Declaration did not go unnoticed. In fact, it inspired the Government of Haiti to make a proposal to the League of Nations on September 30, 1933, that the League refer to its Sixth Committee a proposal to generalize the minorities clauses of the 1919 and 1920 peace treaties. Haiti proposed that “these rights be so formulated as to ensure that every inhabitant of a State should have the right to the full and entire protection of his life and liberty, and that all the citizens of a State should be equal before the law and should enjoy the same civil and political rights, without distinction of race, language or religion.”92 The matter was referred to the Agenda Committee on October 2, 1933.93 There was discussion and debate generally in the Sixth Committee, with several proposals. What was adopted by that Commit-

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tee and sent to the Assembly was simply a resolution calling on all states that were not covered by the postwar treaties to treat their own religious, cultural, or linguistic minorities to at least the same level of justice stipulated by the treaties.94 The Institut Declaration, in part, was meant to expand upon and amplify the idea of the “rights and duties of nations,” first articulated by the American Institute of International Law in 1916. The Institute was founded in 1912 and was composed of committees or delegations of national societies of international law.95 The Statement on the Rights and Duties of Nations was meant to serve as a guide for the Institute, “stating the point of view from which it approaches questions, and the principles which will guide its conduct.” 96 The six articles adopted by the American Institute are not particularly remarkable, unless one considers that Article V’s declaration that “right and duty are correlative” indicates that the duties of states are embedded within the rights themselves. What is actually more remarkable is the lengthy preamble that actually sets the context of what a state is, not only as an agent or legal personality within international law, but in terms of the raison d’être of the state. It assumes that the international system constitutes a society, and that the legal personalities of states are akin to their being individuals within a society. It bears to be quoted in its entirety: WHEREAS the municipal law of civilized nations recognizes and protects the right to life, the right to liberty, the right to the pursuit of happiness, as added by the Declaration of Independence of the United States of America, the right to legal equality, the right to property, and the right to the enjoyment of the aforesaid rights; and WHEREAS these fundamental rights, thus universally recognized, create a duty on the part of the peoples of all nations to observe them; and WHEREAS, according to the political philosophy of the Declaration of Independence of the United States, and the universal practice of the American Republics, nations or governments are regarded as created by the people, deriving their just powers from the consent of the governed, and are instituted among men to promote their safety and happiness and to secure to the people the enjoyment of their fundamental rights; and WHEREAS the nation is a moral and juristic person, the creature of law, and subordinated to law as in the natural person in political society; and WHEREAS we deem that these fundamental rights can be stated in terms of international law and applied to the relations of the members of the society of nations, one with another, just as they have been applied in the relations of the citizens or subjects of states forming the Society of Nations; and

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WHEREAS these fundamental rights of national jurisprudence, namely, the right to life, the right to liberty, the right to the pursuit of happiness, the right to equality before the law, the right to property, and the right to the observance thereof are, when stated in terms of international law, the right of the nation to exist and to protect and to conserve its existence; the right of independence and the freedom to develop itself without interference or control from other nations; the right of equality in law and before the law; the right to territory within defined boundaries and to exclusive jurisdiction therein; and the right to the observance of these fundamental rights; and WHEREAS the rights and the duties of nations are, by virtue of membership in the society thereof, to be exercised and performed in accordance with the exigencies of their mutual interdependence expressed in the preamble to the Convention for the Pacific Settlement of International Disputes of the First and Second Hague Peace Conferences, recognizing the solidarity which unites the members of the society of civilized nations.97

Because the 1916 Statement begins by articulating the purpose of municipal law and the purpose of the state, and extends that into a statement of rights and duties of states vis-­à-­v is one another, it strongly implies that a state that is not constituted in such a fashion—­liberally and democratically—­perhaps cannot properly be called a state, or, at the very least, it might not be considered fully in rights as other states that are so constituted.

Conclusions If we are trying to understand something crucial about the role of rights within the complex of the relationships between individuals, civil society, and the state, I believe these pre-­U.N. proposals provide deep insight into a variety of approaches and difficulties that amplify the drafting process of the Universal Declaration in the U.N. from 1946 to 1948. As Shotwell points out, all these efforts were meant to guide the development of human rights within what would eventually become the United Nations.98 Perhaps most important, these proposals clearly demonstrate that the idea of economic and social rights had its origins in a liberal­democratic view of the individual, civil society, and the state—­unless we believe that, for example, Roosevelt and those in his administration were socialists. As we have seen, many of these proposals were accompanied by extensive commentary and drafting histories. These are indispensable for understanding the complex contexts and motivations of the groups and individuals who proposed various catalogues of international human rights. Most histories of human rights mention perhaps a few of these efforts. The details that are necessary for understanding context and

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motivation are scattered and, thus, overlooked. Their inclusion in the history of human rights, and the implications of that history for understanding not only the dilemmas that were to come, is particularly important for unpacking the contemporary concept of indivisibility of human rights. These commentaries and drafting histories clearly challenge the orthodoxy of a socialist genealogy of economic and social rights. While recognizing differences in the nature and composition of many states, the binding together of so-­called negative and positive rights forms a powerful and intriguing picture of a particular set of state-­civil society relations: a market-­based economy regulated by a liberal-­democratic welfare state. Nevertheless, in our zeal to find evidence of nonsocialist support for economic and social rights (or, perhaps, for positive rights), we must not overlook the evidence that many of these proposals demonstrate about the qualitative distinction between traditional, Enlightenment­era civil rights and more recently recognized political, economic, and social rights. They recognize that the latter would require the support of policy and legislative activity, yet their embodiment in constitutional law might be quite problematic. In fact, one early supporter of the idea of rights-­based economic and social guarantees, James Shotwell, later had reservations. Referring specifically to the ALI Statement of Essential Human Rights as central to the work of his Committee to Study the Organization of Peace, which offered its proposals in February 1947, he reminds us that the Statement “deals only with fundamental principles, not with the means for realizing them. Freed, thus, from practical considerations, the committee included a number of economic ‘rights’ as well as those for the protection of the person.” 99 He cites the right to work as an example. Such a right “could only be guaranteed by a State which would, if necessary, take over the whole control of its economic life. Naturally, this would not be consonant with the maintenance of what is called ‘a free economy.’”100 The decision to include economic and social rights in the CSOP Bill—­which, indeed, was the last of these proposals—­was, in part, to secure the acceptance of socialist states in the multilateral negotiations on the scope of human rights that were unfolding at the United Nations. Ultimately, many of these problems were tied to another overarching concern at the time, highlighted by Quincy Wright and Hersch Lauterpacht in particular: in what manner could these rights be articulated and guaranteed internationally? Would human rights create obligations of states to individuals, or between states themselves? Would individuals have a right to petition an international body for relief? Would there be some kind of a human rights court? The evolution of the international human rights system has demonstrated that, with the exception

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International Guarantees   55

of certain peremptory norms of international law (jus cogens), the role of international institutions in protecting human rights is ultimately subsidiary to national implementation.101 As we have seen, many of these early efforts at articulating catalogues of human rights envisioned, at least in part, some kind of international protective mechanism. Nevertheless, those who most desired the establishment of a working international legal human rights regime, such as international jurist Hersch Lauterpacht, exercised great caution in their proposals for human rights. That meant taking into account what was morally desirable as well as what was politically practical. In closing this chapter, I cite Lauterpacht’s International Bill of the Rights of Man, published in 1946, as an example of a sober approach to human rights that was in many respects prescient of what lay ahead. Lauterpacht began writing his book in 1942. He offered a bill of rights that takes on the character of what would later become a familiar catalogue of rights: civil and procedural rights, followed by political rights, and ending with a few key economic, social, and cultural rights that were meant to be subsidiary of civil and political rights and freedoms. The Bill “must recognize the connection between political freedom and economic freedom, between legal equality and economic and social equality of opportunity.”102 His work also included extensive commentary on the nature of rights, the evolution of rights theory in history, and his concerns about implementation and enforcement, which (at the time) he thought would fall under the jurisdiction of an international body. Thus, although he includes economic and social rights in his catalogue, the problem of enforcement led him to conclude, ultimately, that they may not be legally enforceable. One of Lauterpacht’s concerns was the political choice that would have be made between a declaration of principles and some kind of convention or treaty that would carry the force of international law: “Should it be decided to reduce any international bill of human rights to a mere statement of political or moral principle, then, indeed, it would be most likely to secure easy acceptance; for any possible difficulty in agreeing upon its terms will be merged in the innocuous nature of its ineffectual purpose. But if the Second World War ought to end, in the words of the British Prime Minister, ‘with the enthronement of human rights,’ then a declaration thus emaciated would come dangerously near to a corruption of language.”103 Thus, he intended his work to be the basis of a legally binding convention: “An International Bill of the Rights of Man can be conceived either as a political declaration embodying a philosophy and principles of government for the guidance of States and public opinion or as a

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legal instrument creating definite and enforceable legal rights and duties between States and their nationals and between States themselves. The present Draft . . . ​is based on the latter conception.”104 While recognizing that a political declaration might have a significant effect on public opinion about the idea of protecting a wide variety of human rights as a political and social goal, the existence of many rights guarantees within already existing constitutions (largely civil rights) would mean that “a political declaration, however impressive, would constitute a retrogressive step by reason of the inadequacy of its probable effect when compared with the need which gave rise to it.”105 However, It is possible that that criticism would be less emphatic with regard to what may be called social rights, namely, the right to work, to adequate conditions of work and pay, to education, and to economic security, as set forth in Articles 13 and 14 of the draft. The claim to a legal recognition of these rights is of more recent origin, and their solemn affirmation by the United Nations might be regarded as an advance, even if it were not accompanied by specific international guarantees by way of enforcement. But even in that case the advantage would be regarded by many as questionable unless the declaration were accompanied by an affirmation of an international interest in its fulfillment, of the right of international discussion, of the duty of States to co-­operate in good faith whenever such co-­operation is necessary for the upholding and the progressive development of these rights, and of the ultimate right of the society of nations to ensure such co-­operation.106

In the end, Lauterpacht decided to include two articles dealing with social rights. One immediately notices that they are worded not as rights, but as obligations of states. Article 13 reads, “States shall, within the limits of their economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness disablement and other cases of undeserved want.” Article 14 reads, “States shall, in co-­operation with other States and with the International Labour Organization, make provision for securing just and humane conditions of work.”107 These are not intended to be rights-­claims of individuals against their governments. Rather, these articles create “the individual and collective right of the signatories of the bill to insist, within the framework of appropriate international organs of supervision and, if need be, of enforcement, upon the fulfillment of the social and economic clauses of the Bill of Rights.”108 In speaking about economic and social guarantees of the type envisioned in his bill of rights, Lauterpacht fully recognized that “it is true that the value of political freedom is impaired by the absence of substantive economic freedom, by economic insecurity, by underserved

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International Guarantees   57

want, and by absence of educational opportunity.”109 But particularities in development and the different economic systems of states require thinking about these kinds of rights and guarantees—­even though long recognized in some societies—­that is different from that for civil and (sometimes) political rights. Thus, “The Bill of Rights cannot prescribe a machinery by which States shall secure the right to work or to education; it cannot lay down a code for ensuring a minimum standard of wages or of holidays; it cannot determine the methods for securing humane conditions of work or of protection for women and minors; and it must abstain from prescribing the details of social insurance in its various aspects. National Constitutions have not attempted a task of that immensity. Neither do they confer upon individuals any right of legal action to enforce the general principles of the constitution in this matter.”110 While Lauterpacht’s bill of rights includes economic and social rights, their articulation is far more circumspect than in earlier proposals discussed in this chapter (and Chapter 2). In his view, economic and social rights would not be subject necessarily to legal guarantees as were civil and political rights. He believed that the obligations created in them were between states and not between individuals and their own state—­ although this is true of the entire bill as a matter of international law. Finally, he stipulates that the obligations entailed by his bill depended on international cooperation for their realization (or for the provision of remedy). It is important, despite all these limitations from the grand scope of some other proposals, that they are included. It provides a sketch upon which the two Covenants would be drafted. Lauterpacht’s study also anticipated a problem that the drafters of the Universal Declaration would have to address early in the drafting process: whether an international bill of rights would be in the form of a declaration of principles or a legally binding convention, with appropriate measures or institutions for enforcement and implementation. While this debate consumed the first session of the Commission on Human Rights—­w ith the Soviet Union and the United States taking the lead in favoring a Declaration (and the U.S. supporting “later” conventions), and the United Kingdom in support only of a binding convention—­it was the compromise offered by P. C. Chang of China that separated the bill into three distinct components that the Commission ultimately adopted.111 In Morsink’s view, “as the irony of history had it, what worried most of the delegations—­that their declaration was not attached to or accompanied by a covenant—­has proved to be a very beneficial feature of the document, one that has helped rather than hindered the process of implementation.”112 This compromise, as well as the accelerated drafting process, enabled

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the U.N. to adopt the Universal Declaration less than two years after the Commission’s founding. Hailed as a “common standard of achievement for all mankind,” the Universal Declaration was adopted without a single dissenting vote. In the same resolution that contained the text of the Declaration, the General Assembly instructed the Commission to turn its attention to completion of a convention and measures of implementation. The next three chapters examine that process in detail.

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Chapter 4

From Declaration to Covenant

Whereas the Covenant should be drawn up in the spirit and based on the principles of the Universal Declaration of Human Rights, Whereas the Universal Declaration regards man as a person, to whom civic and political freedoms and well as economic, social and cultural rights indubitably belong, Whereas the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent, Whereas when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man;   [The General Assembly . . . ​] Decides to include in the Covenant economic, social and cultural rights. —­United Nations General Assembly Resolution 421 (V), December 5, 1950

When the Commission on Human Rights was established by the U.N. Economic and Social Council on February 16, 1946, its first order of business was to draft an international bill of rights.1 As originally conceived, this bill was to include a declaration of principles, a legally binding convention, and measures of implementation. By 1947, the Commission, with the approval of the Economic and Social Council, had voted to proceed first with the Declaration and to move later to a Covenant and measures of implementation. By the time the Universal Declaration of Human Rights was adopted in December 1948, the Commission’s floor was covered with a variety of proposals for a convention and measures of implementation. Dealing with those was the first order of business when the Commission convened for its fifth session in April of 1949. The next three chapters tell the story of the drafting of the Covenants on Human Rights, and the dramatic debates and political controversies surrounding this process. One month shy of eighteen years passed between the adoption of the Universal Declaration of Human Rights (December 1948) and the two Covenants (in November 1966) by the

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General Assembly. Most of this delay was due to the increasingly overcrowded agenda of the General Assembly’s Third Committee, which took twelve years to pick at the drafts they received from the Commission and the Economic and Social Council in 1954. There was nothing particularly intriguing about that process—­except that it demonstrated how difficult it was to translate universal principles about human rights into binding treaty law that would be acceptable to most states. That it would take another twelve years after the Covenants were open for signature for a relatively small number of states—­thirty-­five—­to ratify or accede to the Covenants and bring them into force was further testament to the divide between principle and practice. The adoption, nemine contradicente, of the Universal Declaration in December 1948 was a monumental achievement. It was the culmination of nearly a decade of efforts to deliver the promises of liberal democratic political society to the rest of the world. It was endorsed by a variety of cultural, linguistic, ideological, and religious traditions and polities. But the Declaration was, in the end, just that—­a Declaration. It was not legally binding. It required nothing concrete of states. The strongest claim it had was to give some definition to the U.N. Charter’s references to “human rights and fundamental freedoms.” But it was not law. So what was “the Covenant” supposed to be? In contrast to the Universal Declaration, which was elegant in its brevity and simplicity, the Covenant needed to be precise. The Covenant would need to translate moral obligations into legal ones. Whereas the Declaration was quite clear about rights-­holders (i.e., “everyone shall have the right to . . .”; “No one shall be . . .”), the Covenant would have to address the question of duty bearers (states) and their obligations. It would also have to consider what roles would be appropriate for the United Nations and other international organizations (the U.N. specialized agencies) to play in the protection and promotion of the rights proclaimed in the Covenant. In the minds of those for whom the inclusion of human rights had been a cornerstone of the entire postwar global order, the idea of a legally binding covenant had to include the following: Precise obligations. The Covenant would have to spell out what exactly states would have to do in order to be in compliance with its terms. What legislative, executive, and judicial reforms or actions would be necessary? What about the obligations of the Covenant in federal states (like the United States)? How would states-­parties demonstrate the steps they would undertake to turn the treaty’s provisions into national law? Would states need to conform to the provisions of the Covenant prior to or after ratification and/or accession? Limitations. Relatively few rights are (or were) absolute. How would the

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From Declaration to Covenant   61

international community define appropriate limitations on the enjoyment of “fundamental” rights and freedoms, such as speech and movement? When is it appropriate for public authorities to curtail rights? Are there rights that should never be curtailed? Monitoring and enforcement. How would states incorporate the provisions of the Covenant into their national systems of law and justice? What obligations would they have to the international community with regard to the progress they had achieved toward that end? Violations, adjudication, and international remedy. Should the United Nations receive complaints alleging violations of human rights? Which U.N. or other organization should receive them? Should states be able to accuse other states of committing human rights violations? Should there be a procedure for individuals or groups to bring complaints to an international body? What would be the rules of procedure? What power would that body have to force remedies? Should there be an international court for human rights? Should the Commission on Human Rights (or other body) be empowered to initiate independent inquiries into alleged violations? In short, the Covenant would create obligations and duties for states that the Universal Declaration of Human Rights simply did not. As I pointed out in the preceding chapter, those who were anticipating that the protection of human rights should be one of the responsibilities of whatever global organization was going to replace the League of Nations had drafted various bills of rights to that end. The United Nations might have stopped at the Universal Declaration of Human Rights. But it chose not to, instead insisting that the principles enshrined in the Universal Declaration be translated into treaty law as soon as possible. Simply redrafting the Declaration, however, was not politically feasible for any state because a treaty would carry obligations that, under the doctrine of pacta sunt servanda, states would have to undertake in good faith. States like the United Kingdom wanted a precise and limited Covenant that could be monitored and enforced. The United States was concerned about applicability within its federal constitutional system. The Soviet Union wanted the language of rights to be translated directly into state duties, but wanted all the international monitoring and enforcement provisions stripped out. In short, the political hurdles that would need to be cleared in the drafting of a legally binding Covenant were formidable. Chapters 4, 5, and 6 are concerned with the issues of indivisibility, interdependence, and interrelatedness as they bear on the drafting of first one, then two Covenants on Human Rights. The Commission began in 1949 with an initial draft Covenant they had set aside in 1947 in order to focus on the Universal Declaration of Human Rights. The 1947 draft

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Covenant included only civil rights (not even political rights). In 1950, the General Assembly instructed the Commission to include economic, social, and cultural rights in the draft Covenant. The following year, the Assembly voted for two separate covenants that would become, in 1966, the ICESCR and the ICCPR. The following chapters chronicle these events and what they tell us about the difficulties and controversies the United Nations encountered in protecting and promoting all of the rights enumerated in the Universal Declaration through international law.

The Flawed Historiography of the Covenants The 1952 decision by the General Assembly to divide the then-­single Covenant into two separate treaties has been interpreted by dozens of scholars and observers, but few have explored the details of this remarkable story in any depth. Analyses written before the 1980s tended to be sober and factual,2 whereas accounts about this period appearing in the 1980s and beyond became increasingly thin and sometimes historically inaccurate. The vast majority of these recent accounts focus on a sole reason for the division: Cold War politics and especially the ideological differences between the United States and the Soviet Union (or, alternatively, between the West and the East) over the nature of different kinds of rights. In particular, these accounts—­some brief and embedded within larger works—­ overlook a critical political factor that led to the division of the Covenant: the attachment of economic, social, and cultural rights to emerging and wide-­reaching anticolonial and development agendas of Third World states. This move was closely associated with increasingly strong support for enumerating a right to self-­determination as a human right. A sizable portion of the recent literature on economic, social, and cultural rights has adopted the rhetoric of indivisibility in order to eliminate the perceived hierarchy of rights favoring civil and political rights. Given this fact, it is not surprising to find so many writers downplaying the division of human rights into categories as something of an ­anomaly—­a Cold War artifact. With that ideological conflict relegated, as it were, to the “ash heap of history,”3 the way has been paved for a stronger and more effective indivisibility rhetoric. Freeman paints over the whole period from 1948 to 1966 with a broad brush: “The cold war reinforced the reluctance of states after 1948 to submit to the international regulation of human rights and, consequently, notwithstanding the Universal Declaration, human rights returned to the margins of international politics in the 1950s. The two main cold-­war protagonists, the U.S. and the USSR, used the concept of human rights to score propaganda points off each other, while directly or indirectly participat-

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From Declaration to Covenant   63

ing in the gross violation of human rights. Plans to introduce binding human-­r ights treaties were delayed until the mid-­1960s.”4 Lauren’s extensive historical study of the rise of international human rights sums up the period from 1947 to 1952 this way: The preliminary text [of the Covenant], for example, embraced the view of Britain and the United States that only civil and political rights could be included in a legally binding treaty. The Soviets protested this arrangement as being hopelessly bourgeois and typically capitalist, arguing instead for that any covenant ought to contain provisions emphasizing economic and social rights. The General Assembly, watching all this bickering, decided to direct the commission to study ways of including the right of nations and people to self­determination and to prepare a single comprehensive document. . . . ​Nevertheless, the disputes between the superpowers and their respective allies of the Cold War continued to rage and resulted in an uneasy compromise whereby the commission would proceed with its standard-­setting activities by creating drafts of two separate covenants, each focused on different kinds of rights. 5

Chisanga Puta-­Chekwe and Nora Flood blame the division of the Covenant on misconceptions about the nature of economic, social and cultural rights. A separate covenant on economic and social rights “was the product of conflicting political ideologies and misconceptions about the nature of human rights, rather than the necessary consequence of fundamental differences between groups of rights,” especially surrounding the question of which rights were ideologically fundamental.6 Shelley Wright echoes this view: “Two covenants . . . ​were necessary mainly owing to disputes between Western and Eastern blocs over the priority to be given to civil and political versus economic, social and cultural rights.”7 According to Diane Otto, the General Assembly’s decision in 1952 was arrived at “only reluctantly,” and “the end of the Cold War did seem to open a window of opportunity for shifting, if not erasing, the ideologically fueled hierarchies between civil and political rights on the one hand, and economic, social and cultural rights on the other.”8 In much of the more recent literature, one notices a sort of nostalgia for the broken promise of translating the Universal Declaration of Human Rights into reality through a Covenant: “Shortly after the adoption of the Universal Declaration . . . ​the deep ideological divisions of the world of the fifties led to categorizations of human rights, underlying the holistic view propounded by the Universal Declaration. The consequences of the fragmentation or atomization of the corpus juris of human rights were promptly felt, and have repercussions even today.” 9 Similarly, “Within the international system, and at domestic levels, the eloquent statement made by the U.N. General Assembly in 1948, that economic, social, cultural, civil and political rights are indivisible and interrelated, has not been translated into reality.”10

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In a series of observations for a background paper, economic, social, and cultural rights advocate Asbjørn Eide made the claim that because economic, social, and cultural rights were gaining more ground “as equal components” of the human rights system, “it is not necessary to remind this audience of the long controversy over the priorities in human rights, with the Cold War polarization on an ideological basis. That is now largely over.”11 In his exhaustive account of the drafting of the ICESCR, in which the “generations approach” (see Chapter 10) to human rights is invoked, Matthew Craven writes: In fact the reason for making a distinction between first and second generation rights could be more accurately put down to the ideological conflict between East and West pursued in the arena of human rights during the drafting of the Covenants. The Soviet States, on the one hand, championed the cause of the economic, social and cultural rights, which they associated with the aims of socialist society. Western States, on the other hand, asserted the priority of civil and political rights as being the foundation of liberty and democracy in the “free world.”12 Indeed it should be borne in mind that the identification of economic, social and cultural rights as a discrete and separate group of rights was principally a result of the ideological rivalry between East and West during the drafting of the International Bill of Rights.13

In the early 1980s, Louis Henkin explained that the reason for the eighteen-­year period between the adoption of the Universal Declaration of Human Rights and the adoption of the Covenants in 1966 was due to the necessity to “accommodate, bridge, submerge, and conceal deep divisions and differences, especially between democratic-­libertarian and socialist-­revolutionary states—­differences in fundamental conceptions about the relation of society to the individual, about his rights and duties, about priorities and preferences among them.”14 However, he also recognized that “there was wide agreement and clear recognition that the means required to induce compliance with social-­economic undertakings were different from those required for civil-­political rights.”15 Within the more recent literature, one of the few sober and complete accounts of the division of the Covenant was offered by Craig Scott in 1989. He summarized the foundations of the division along three major lines: reasons relating to implementation mechanisms, ideological/political reasons, and pragmatic reasons.16 Scott cautions that these three categories are not watertight: “political motives can easily be dressed up in different language and, in any case, are intimately related to other sincere stances.”17 Scott’s brief analysis begs a thorough examination of the forces that shaped the evolution of the Covenants in the United Nations from 1949 to 1954, which I do in the next several chapters.

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From Declaration to Covenant   65

The standard interpretations about why the United Nations voted to divide the draft Covenant in 1952 can be broadly categorized into four general assumptions: Assumption 1: Ideological reasons—­both philosophical (liberalism vs. communism) and political (i.e., directly attributable to the politics of the Cold War especially within the U.N. system)—­were responsible for the division of the Universal Declaration into two separate treaty regimes. Assumption 2: The West—­especially the United States—­embraced civil and political rights and rejected economic and social rights, whereas the East—­ especially the USSR—­did precisely the opposite. Assumption 3: The ideological impasse over these two categories of human rights was responsible for the nearly twenty-­year gap between the adoption of the Universal Declaration of Human Rights in 1948 and the adoption of the two covenants in 1966. Assumption 4: This division was detrimental to both categories of rights, but more so for economic and social rights than for civil and political rights.

These assumptions are not without elements of truth. But they do not reflect the deep complexities and challenges faced by the United Nations during a crucial period in its own development in attempting to live up to the ideals of the Charter—­that among the purposes of the U.N. was the protection of human rights and fundamental freedoms. Delegations took this task very seriously, most believing they were drafting a treaty whose provisions would require them to adopt measures at the national level to implement the substantive portions of the Covenant. What the assumptions above reflect, however, is a glossing over of these complexities. After the significant and symbolic diplomatic victory in the adoption of the Universal Declaration, the task of translating those principles into binding treaty law was formidable. On December 4, 1950, the General Assembly of the United Nations adopted Resolution 421 (V), entitled Future Work of the Commission on Human Rights. This was a lengthy resolution that reviewed the work of the Commission on Human Rights since the adoption of the Universal Declaration of Human Rights in 1948 on the then-­single draft Covenant, and instructed the Commission on Human Rights on how it should proceed at its upcoming session in a number of different areas. The resolution comprised nine separate sections, each with a unique instruction for the Commission (through its parent body, the Economic and Social Council), the specialized agencies, or the Secretary-­G eneral of the United Nations. Some sections had their own recitals, expressing points of principle about the meaning of human rights and how that should guide the Commission’s work. In the most well-­k nown part of Resolution 421 (V)—­Section E—­the General Assembly decided to include economic, social, and cultural rights in the Covenant, and in-

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structed the Commission on Human Rights to include “a clear expression” of those rights “in a manner which relates them to the civic and political freedoms proclaimed by the draft Covenant.” How the General Assembly arrived at this decision has received scant attention in the historiography of the Covenants. The process was subtle and nuanced and complicated, and must be understood from its own time and circumstances. This chapter attempts to tell the story of this remarkable Resolution and the principles and rhetoric undergirding it, allowing the various delegations to the Commission on Human Rights, the Economic and Social Council, and especially the General Assembly to speak for themselves. I hope this history will provide the context needed to more fully understand and appreciate another landmark General Assembly resolution on human rights—­543 (VI) of 1952—­in which the General Assembly reversed its earlier decision and voted in favor of two separate human rights covenants.

Commission on Human Rights, Fifth Session: May–June 1949 We will recall that the Commission on Human Rights, tasked in 1946 with drafting a three-­part international bill of rights had decided in 1947 to set aside the draft Covenant and methods of implementation in order to focus on putting a draft Declaration on the General Assembly’s agenda as soon as possible. After the Declaration was adopted, the Commission immediately went back to the draft covenant it had set aside. The United Kingdom’s draft Covenant, submitted in 1947, was the basis upon which discussions began during the fifth session of the Commission on Human Rights in 1949. The draft Covenant was limited in scope to basic and fundamental civil rights, reflecting in essence the Anglo­A merican rights tradition. Although the United States and the U.K. had supported the inclusion of economic and social rights in the Universal Declaration, the goal now was to draft a legally binding treaty and measures of implementation. Nevertheless, concerns about the absence of certain economic and social rights in the draft were raised within the first week of the Commission’s session. The representative of the American Federation of Labor, Ms. Toni Sender, called the absence of trade union rights a “bitter disillusionment.”18 George Fischer of the World Federation of Trade unions believed the Covenant should include the right to work.19 V. P. Kovalenko of Ukraine believed it should include a right to self-­determination.20 But the Commission quickly voted to move on with discussion of the articles already drafted.21 In the meantime, the Danish, French, U.K., and Soviet delegations put forth proposals for additional articles—­covering a number of different topics—­that would

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From Declaration to Covenant   67

be discussed as a separate agenda item after the work on the substantive articles (Part II) of the Covenant was complete.22 Discussion on these items came up on June 16, during the Commission’s 130th meeting. Denmark, France, and the U.K. agreed not to have their proposals discussed because it was their understanding that these additional articles would simply be sent along with the draft Covenant to governments for their consideration.23 The next day, Australia also proposed six additional articles on economic and social rights to be included in the draft Covenant but also considered that the implementation of these rights should be through a reporting system coordinated by the specialized agencies.24 The Soviets were becoming increasingly adamant about the inclusion of their draft articles in the Covenant, while the U.K. and Indian delegations were just as adamant that economic and social rights not be included in the draft under consideration but in additional instruments.25 Other delegations, including France, Australia, and Denmark, were becoming increasingly convinced that the draft Covenant should have some mention of economic, social, and cultural rights—­the question was, how extensive should their inclusion be? To bridge this impasse, Denmark submitted a draft resolution that the Commission adopted, with amendments, in a 12–­0 –­3 vote.26 The resolution noted the importance of “securing to everyone the enjoyment of economic and social rights as set forth in Articles 22–­27 of the Universal Declaration of Human Rights” and considered that “it is necessary to include provisions on this subject in the Covenant on Human Rights” (emphasis mine). The resolution then requested the Secretary-­G eneral to survey the activities of the various specialized agencies and other U.N. bodies in these areas “for the purpose of enabling the Commission to determine what action it should take in these fields, in particular for the inclusion of these subjects either in the Covenant on Human Rights or in later conventions.”27 Despite the adoption of this resolution, consideration of the Soviet Union’s draft articles on economic and social rights28 was still on the agenda. When Eleanor Roosevelt moved to take the Soviet draft articles off the agenda (given the previous day’s resolution), Pavlov countered that a vote should be taken immediately “so that millions of the world’s workers could recognize who were their true protectors.” 29 Most agreed with the United States that since the articles had not even been discussed, it would be premature to vote on them. The session was also nearly at an end. The Commission then voted 7–­3 –­4 to send the Soviet proposals, along with other draft articles, to governments for their consideration.30 Pavlov’s attempt to get a vote by extending the session of the Commission was also rejected.31

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While it may seem that the Commission was intending to include economic and social rights in the draft Covenant, their resolution was asking for some guidance about how provisions on those rights might be included, if at all. While this might seem like a distinction without a difference, its importance would become far more evident in subsequent sessions of the Commission. The Commission was merely following a set of procedures it had adopted during the drafting of the Universal Declaration of Human Rights—­to send drafts and proposals that had not been fully discussed to governments for their consideration. In this case, the Commission’s report on its fifth session included the draft Covenant (as it then stood), additional articles that had been discussed or proposed,32 several options for implementation measures,33 and a questionnaire for governments about many of these matters—­including a question asking, “in the event of the inclusion of economic and social articles in the covenant, what would be your view on the most appropriate means of implementation?” Owing to confusion over procedure, the Economic and Social Council took no action on the resolution adopted by the Commission on Human Rights about economic and social rights. Because the report of the fifth session of the Commission arrived too late and thus would have to be sandwiched in between other agenda items, the Council decided to take no action, deeming their silence to denote the absence of disapproval of the Commission’s request to the Secretary-­G eneral for a report.34 Because the Economic and Social Council did not draft a resolution for consideration on these matters for consideration by the General Assembly, there were no directives for the Commission to undertake at its next session. It was not clear whether the survey of the specialized agencies requested of the Secretary-­G eneral was ever undertaken because General Assembly Resolution 312 (IV) on the Report of the Economic and Social Council merely noted its receipt. Nevertheless, the questionnaire about implementation was sent out to governments, and replies were transmitted to the Commission for consideration during its sixth session in 1950.

Commission on Human Rights: Sixth Session, March–May 1950 Having received no specific directives from the fourth session of the General Assembly, the Commission’s agenda for its sixth session remained as it was: to complete the draft Covenant in order to have it forwarded to the General Assembly for its consideration in 1950, at its fifth session. As it stood, the Commission still needed to hash out details about the wording of the substantive articles in the draft and consider proposals for implementation measures. As for the substance of the

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drafted articles, there was still considerable work to be done in spelling out limitations of some of the rights—­in other words, under what circumstances could civil and procedural rights be curtailed, suspended, or subject to national particularities in accordance with prevailing law? Part of the debate over this was reflected in very different attitudes about the force and effect of convention law on states ratifying or acceding to such a treaty. As far as the U.K. was concerned, states-­parties to the Covenant would need to bring their domestic systems into conformity with the Covenant before signing. This is why they wanted precise language with clear limitations spelled out. Most other Commission delegates, however, viewed the idea of accession as a prompt to states-­parties: they should have some amount of time—­t wo years, perhaps—­a fter accession to adopt legislative measures to give effect to the rights in the Covenant. This was one part of the implementation debate that would dominate the Commission’s work in 1950. Another implementation-­related problem was in the area of violations. Recall that the original bill of rights plan was for the Commission to prepare three separate instruments: a declaration, a convention, and measures of implementation. The Commission had been moving toward a new position, which was to include monitoring and enforcement mechanisms into the text of the draft Covenant itself rather than in a separate instrument. Among the options the Commission had been debating were (1) provisions for state-­to-­state complaints to be handled by a Human Rights Committee of independent experts, the composition and procedures of which would form Part III of the draft Covenant; (2) an Australian proposal for the establishment of a Human Rights Court, a statute for which they had presented during the Commission’s fifth session; and (3) proposals for the receipt of individual and/or group petitions that could be received by the Human Rights Committee, in addition to their fielding state-­to-­state complaints. These debates consumed a great deal of the Commission’s sixth session, which ended without any consensus on the problem of monitoring and enforcement. Of course, the Soviet Union and its allies opposed any measures for international monitoring or enforcement. In response to the questionnaire on implementation measures that had been sent to governments earlier, the USSR responded: “The Government of the Union of Soviet Socialist Republics considers that the implementation of the Declaration of Human Rights and the covenant is a matter which solely concerns the domestic jurisdiction of the State, and accordingly sees no need for any international agreements on the subject.”35 Of course, the Soviet delegation was not able to advance this argument during the sixth session of the Commission since they had stormed out in protest over the presence of the Chinese delegate from the “Kuo-

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mintang group”—­the Chinese nationalists who had recently fled the mainland after Mao’s victory in the Chinese civil war.36 The rest of the Commission, however, dedicated the next month to discussion of the draft substantive articles and measures of implementation.37 Toward the end of these drafting sessions, in early May 1950, the discussions were punctuated by Yugoslav proposals urging that the Commission discuss the additional articles on economic and social rights proposed at the fifth session. At first, the debate was adjourned, only to be brought up again several days later. Those opposing the discussion (the U.K. and India) did so in the interests of time, India suggesting that the Economic and Social Council or General Assembly could consider the additional articles if they so desired.38 Denmark then suggested devoting a day to a discussion “of the principle of including them in the Covenant” (emphasis mine). France and Australia agreed. Chile added that it would be “dangerous” to defer consideration of economic and social rights articles “because of lack of time.”39 The Yugoslav motion was narrowly adopted,40 and debate began on May 9, 1950. In the end, the Commission would find that a “fuller examination of articles dealing with economic and social rights was needed than would be possible in the time that remained during its sixth session. Such examination should include full consultation with the specialized agencies, in particular with the ILO and UNESCO.”41 In a 13-­2 vote, the Commission adopted a resolution jointly sponsored by Denmark, Egypt, France, and Lebanon to consider this question at the Commission’s seventh session in 1951. Nevertheless, it was during this short, three­meeting discussion that the kernel of the idea of indivisibility began to form. The Australian proposals for economic and social rights from the previous year were now introduced, albeit in much more general form. The purpose, according to the Australian delegate (H.F.E. Whitlam), was so they might be included in the Covenant, but in a separate section—­a Part B—­of the draft Covenant. As Whitlam put it, they should be seen as basic prescriptions, “to allow the filling out and of detailing to be done in sequels, possibly by conventions and possibly by collaboration, in pertinent respects, with other United Nations bodies, such as the ILO.”42 Whitlam added, however, that “if freedom, justice and peace were not possible in the world without remedying such inequalities [arising in human society from laissez-­faire policies in relation to modern industrialization], then economic and social rights must be regarded as inseparable from the rights already under consideration by the Commission—­mainly civil rights—­and as having no less a claim to protection by law”43 For Branko Jevremovic of Yugoslavia, “the conclusion was inescapable

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that the accepted political rights and the economic and social rights form an inseparable whole.”44 Sörensen of Denmark concurred that political and other rights were of no value without economic rights. But its opposition to including them at this point was technical. Their elaboration needed time and perhaps collaboration with the specialized agencies.45 Yugoslavia later disagreed with this point, implying that having the specialized agencies involved in the drafting or implementation of economic and social rights would be tantamount to treating them in a discriminatory manner; that economic and social rights deserved to be dealt with on the same level as civil and political rights.46 Conscious that the Commission on Human Rights had pledged to submit a full draft Covenant to the Economic and Social Council in 1950, Charles Malik of Lebanon proposed a draft resolution47 that the Commission devote its seventh session in 1951 to the drafting of an additional convention to include economic, social, political, and other categories of rights. It was during the debate on this resolution—­the idea of separate Covenants—­that the rhetoric of indivisibility as “covering language” first emerged—­as well as arguments about foundations. The U.K. was always adamantly opposed to anything lacking precision in the draft Covenant, and that ultimately, basic civil rights laid the foundation for economic and social rights: “The world needs free men, not well-­fed slaves.”48 José Mora of Uruguay believed that political rights were foundational (even though they were not included in the draft Covenant) and hoped that they would be included in the “next” Covenant. He was also among the first to suggest that it was possible to draft “separate but interdependent” Covenants, but that their interdependence needed to be made explicit.49 With some minor amendments, the joint Danish, Egyptian, French, and Lebanese resolution to “proceed at its first session in 1951 with the consideration of additional covenants and measures dealing with economic, social, cultural, political and other categories of human rights” was adopted 13–­2–­0, with the U.K. and Yugoslavia voting against.50 At Rene Cassin’s suggestion, the title of the resolution was changed to Draft First International Covenant on Human Rights.

The Economic and Social Council, Eleventh Session: An Odd Resolution With the Commission’s report in hand, the Economic and Social Council began to discuss these questions in July 1950. The main question was procedural: some delegations were of the view that the draft Covenant needed more work before it would be ready for a vote in the General Assembly. Other delegations were anxious to move the Covenant forward,

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given the expectation that the General Assembly would receive a draft for it to consider at its sixth session in 1950. As for the absence of economic and social rights in the draft Covenant, the Chilean delegate believed that result was obtained owing to the composition of the countries represented on the Commission and the absence of a Soviet representative during the Commission’s sixth session.51 “To sum up, the peoples of the colonial and trust territories were excluded from the draft covenant, which also failed to include economic and social rights.”52 In response, the Indian representative was concerned about the effect of contradictory policy decisions, should, for example, the Council propose the inclusion of economic, social, and cultural rights, while the General Assembly “upheld the Commission’s view that a separate instrument should be drafted to cover them, because the various countries were at different stages of economic, social and cultural development.”53 The United States agreed that it was indeed possible for the General Assembly to move ahead with its deliberations and that the current draft should be forwarded on.54 As the United States saw it, “The rights defined therein were the fundamental rights which were in jeopardy at the present time. As for the omission of economic, cultural and social rights, the Commission was perfectly aware of the importance of the issue . . .”55 In agreeing with India’s concern about how to accommodate states at different stages of development in a legally binding treaty, “the Commission had been wholly wise in deciding that all those rights should not be embodied in one covenant and one alone”56 The representative of Pakistan also agreed that the “concept of fundamental human rights should not be extended to include economic and social rights . . . ​since such an extension of the meaning of the term both weakened and confused it. Fundamental human rights were fundamental human rights. From that point of view the draft covenant was satisfactory.”57 As the debate continued, the Canadian delegation suggested that the draft Covenant and other materials perhaps should be forwarded to the Social Committee of the Council to examine its broad aspects and make a recommendation back to the Council as to whether (1) the Council should complete the drafting process, (2) the Council should forward everything to the General Assembly, or (3) the Council should send the draft back to the Commission for further work.58 During the general discussion in the Social Committee, there were no really strong feelings expressed about the possibility of including economic and social rights in the draft Covenant.59 Several resolutions were drafted and forwarded to the full Council on August 9, 1950. After some debate, the Council adopted Resolution 303 (XI).60 Section C of the resolution approved the decision of the Commission to consider

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drafting “additional covenants and measures dealing with economic, social, cultural, political, and other categories of rights,” and to consider the drafts that were introduced during the sixth session of the Commission. Section D requested the Secretary-­G eneral to forward those draft articles along with summary records of the meetings of the sixth session of the Commission to the ILO for its review, in order to solicit “a detailed report on what has already been achieved in these fields, what still remains to be achieved, and how it might be accomplished.” The resolution requested the same from whatever other specialized agencies might be appropriate. However, the decision in Section C approving the idea of additional conventions was contradicted by Section I of the resolution, wherein the Council “[concludes] that further progress on the Covenant cannot be made without basic policy decisions on the above matters61 being taken by the General Assembly”—­such as the “desirability of including economic, social and cultural rights” in the draft Covenant. The resolution thus opened the door for a debate that would result in the General Assembly directing the Commission in December 1950 to include economic, social, and cultural rights in the draft Covenant.

Third Committee Debates: Fifth Session of the General Assembly Economic and Social Council Resolution 301 (XI) had requested quite a bit for the Third Committee of the General Assembly to consider, which it did from mid-­October to mid-­November of 1950. Debate about the disposition of economic, social, and cultural rights began on October 30. Two options drove the discussion: whether to include economic, social, and cultural rights in the draft Covenant or to deal with them in additional instruments, to be drafted at a later time. Thus, the question was not “economic, social, and cultural rights—­yes or no?” but rather “economic, social, and cultural rights—­where and how?” In Favor of a Separate Instrument for Economic, Social, and Cultural Rights The delegations favoring a separate covenant for economic, social, and cultural rights wished to leave the draft Covenant as it was in terms of what rights were covered (although there was another question of whether the wording of those rights was adequate). Their primary argument was that adding additional articles on economic, social, and cultural rights would delay the Covenant’s adoption. This position was advanced by the Dominican Republic, India, Israel, New Zealand, the United Kingdom, and the United States. In their view, the draft Covenant represented four years’ work, and if the goal was to have a Cov-

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enant adopted by the General Assembly as soon as possible (as previous resolutions instructed), it would be more practical for the General Assembly to focus its attention on the draft as it then stood. A closely related but distinct argument was that drafting economic, social, and cultural rights would require some time and study as well as the expertise and participation of the U.N. specialized agencies to formulate appropriate language for economic, social, and cultural rights, and in a manner that would not place the terms of the Covenant at odds with already existing provisions in, for example, International Labor Organization conventions that were in force. Brazil, while desiring a covenant that matched the Universal Declaration of Human Rights, was still aware of the complexity of problems that needed time to be worked out: “there must be no hasty action which might result in an international covenant which it would be impossible to put into effect.”62 René Cassin spoke of the link between different kinds of rights in the French Declaration of the Rights of Man and the Citizen, and that the adoption of a Covenant that did not include economic, social, and cultural rights, or was not accompanied by a separate instrument specifically devoted to them, would be “an unpardonable anachronism.”63 Nevertheless, Cassin argued, the Commission needed more time to study the drafting of another Covenant, because economic and social rights were “much more difficult to define,” especially within the context of what would be a legally binding treaty.64 The Greek delegation reminded the rest of the Third Committee that the Greek Constitution was “one of the most liberal in the world,” protecting a variety of economic and social rights. But those rights were difficult to define and would require much more study by the Commission. On the right to life, for example, “the individual must also be protected against want and must be granted the social right to a minimum of well-­being. It was, however, clearly impossible to abolish want and illness by the stroke of a pen.”65 The last argument advanced by those opposing inclusion in the draft Covenant addressed the fundamental differences between the two categories of rights in terms of their scope and limitations, and how the substantive articles would be implemented at the national level and monitored by an international body. This was the position advanced by India, the Netherlands, Canada, China, and Venezuela. India believed that while civil rights were properly legal rights, “there was, however, no direct legal remedy for the violation of economic and social rights and no existing machinery for their protection and enforcement. Their effectiveness depended rather on the extent to which their governments honoured their obligations and they might also entail material and financial commitments which it would be beyond the power of many governments to fulfill.”66

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The Netherlands questioned how economic, social, and cultural rights could be included in the Covenant, given the differences between countries with respect to “the political, social, financial and economic conditions prevailing in each country.”67 Canada was concerned about mixing moral obligations or social goals with rights, for “it would become difficult to maintain that the other rights set forth in the covenant imposed strict and precise obligations. That would jeopardize the interpretation and execution of the whole covenant.”68 Venezuela’s objection to the inclusion of economic, social, and cultural rights in the same Covenant as civil rights was based on its view of the value of rights vis-­à-­v is the individual and the state. Were economic, social, and cultural rights to be drafted in the negative, that is, to prohibit state action in the economic and social fields, it might be easier to incorporate them. However, as they stood (in the Universal Declaration), their realization entailed financial obligations, which “might preclude states from adopting the covenant.”69 China was skeptical of the ability of any treaty to alter the behavior of the state, and so “the provision of disciplinary measures [in upholding economic, social, and cultural rights] appeared to be premature.”70 Among the delegations opposed to the inclusion of economic, social, and cultural rights in the draft Covenant, none rejected the idea that these rights should be enumerated in a separate instrument. And nearly all stated that such a proposal would not diminish the importance of economic, social, and cultural rights. In Favor of Including Economic, Social, and Cultural Rights in the Draft Covenant Arguments in favor of including economic, social, and cultural rights in the draft Covenant ranged from the legal (that somehow their absence would constitute a violation of the Charter or of previous General Assembly resolutions) to the rhetorical (a Covenant without economic, social, and cultural rights would cause harm to the integrity of the Universal Declaration of Human Rights) to the instrumental (that economic, social, and cultural rights would advance anticolonial and development goals). The third of these was a new development, whose value would grow dramatically over the next several years. Many delegations bundled all three of these argumentative strands together. The USSR and Byelorussia were most adamant that General Assembly Resolution 217 (III)71 had instructed the Commission to draft one and only one Covenant on human rights (my emphasis). To consider economic, social, and cultural rights in a separate instrument would constitute a violation of that directive. Syria also argued that “such rights were the logical sequel to the obligation set forth in the Charter to promote respect for, and observance of, human rights and freedoms.”72

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The most widely cited arguments for the inclusion of economic, social, and cultural rights in the Covenant were based on principle. Without these rights, the Covenant would be “incomplete,”73 “meaningless,”74 “wholly inadequate,”75 and “nothing but an anachronism.”76 Iraq viewed the distinction between different types of rights as “academic.”77 Poland, Mexico, Yugoslavia, Iran, and Argentina believed that a Covenant without economic, social, and cultural rights would do harm to the integrity of the Universal Declaration of Human Rights and that the Covenant should match the Declaration’s language and contents as much as possible. For Mexico, “an incomplete covenant would destroy the value of the Universal Declaration of Human Rights by opening the way to the argument that, inasmuch as only the provisions contained in the covenant were binding, any part of the Declaration which was not included in the covenant was of no importance.”78 Yugoslavia made a philosophical argument: that the Universal Declaration had included economic, social, and cultural rights “because it conceived man as an integrated person, which for its full expression and well-­being required the enjoyment of economic and social as well as political and civil rights” and questioned “whether the balanced conception of the human being incorporated in the Declaration was to be preserved in the covenant.” 79 Argentina urged the Third Committee “not to attempt to divide the indivisible.”80 This was the first time that the term “indivisible” was used to describe the relationship between the two grand categories of human rights. Cuba, Mexico, Argentina, the USSR, Byelorussia, and Ukraine also pointed out that since their constitutions had already recognized economic, social, and cultural rights, there was no reason not to include them in the Covenant. Byelorussia and Ukraine went a step further and suggested that the socialist constitutional model, because it enshrined economic, social, and cultural rights, was perhaps the model upon which the entire Covenant should be based. That had always been—­ and would continue to be—­the position of the Soviet Union, which had constantly proffered highly detailed substantive articles on economic, social, cultural, and political rights for inclusion in the Covenant. With few exceptions, every Soviet proposal was soundly rejected in the Commission, the Economic and Social Council, the Third Committee, and by the General Assembly itself. A final set of arguments in favor of the inclusion of economic, social, and cultural rights in the Covenant linked them with wider development goals and anticolonial movements. Egypt and Iraq thought of the inclusion of economic, social, and cultural rights might offer some kind of policy guidance to their governments. As far as Iraq was concerned, “No great harm would be done if some countries used the inclusion of economic, social and cultural rights as a pretext not to ratify the covenant.

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The very practical result of their inclusion would be that the peoples of those countries would find in them a stimulus to bring pressure to bear upon their governments to pass legislation in line with the provisions of the covenant and thus finally to ratify it.”81 Others adopting this instrumental line of reasoning questioned the motives of countries opposing inclusion of economic, social, and cultural rights. Poland remarked that “the general public” would expect to find economic, social, and cultural rights in the Covenant, and upon discovering their absence, “would find there a proof of the organized resistance of persons who wished to perpetuate obvious inequalities.”82 Yugoslavia thought the implementation of a Covenant without economic, social, and cultural rights might have “dangerous consequences, particularly for under-­developed countries. . . . ​an incomplete covenant might actually hinder their efforts and provide opportunities for the more advanced countries to interfere in their domestic affairs.”83 Saudi Arabia was less measured and more cynical: “It was not surprising that most of those who took that cautious position were representatives of colonial Powers. It was plainly not in their interest to accelerate the implementation of an effective covenant, since the result in dependent territories might be to awaken the population from its lethargy. Hence the representatives of countries which themselves enjoyed the free exercise of economic, social and cultural rights were unwilling to extend the benefits of those rights to populations which lived and labored in a morass of backwardness.”84 Syria agreed, believing that opposition to including economic, social, and cultural rights “arose either from a superiority complex or from a keen sense of selfish colonial interest. Some Powers, for example, could not accept the principle of the right to equal pay for equal work because its application in the colonies would interfere with exploitation.”85 At the end of the general debate in the Third Committee, there was an even divide among the delegations as to the question of including economic, social, and cultural rights in the draft Covenant: 15 for,86 15 against,87 and 1 undecided.88 This would shift dramatically as the debate on draft resolutions progressed.

The Drafting of General Assembly Resolution 421 (V) After the conclusion of the general debate in the Third Committee on the policy questions contained in Economic and Social Council Resolution 303 (XI), the process of drafting resolutions for the General Assembly’s consideration began. The first was a joint resolution cosponsored by Brazil, Turkey, and the United States and introduced on November 3, 1950.89 This resolution echoed what was originally proposed

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by the Commission—­that it should proceed with the consideration of “additional instruments and measures dealing with economic, social, cultural, and other human rights not included in the International Covenant on Human Rights,” and in doing so, take into account “the conventions, other legal instruments, projects, and procedures of other organs of the United Nations and specialized agencies in the field of human rights.” 90 A competing proposal introduced by the Soviet Union91 sought to include a number of already drafted rights that were not included in the Covenant, and to make it clear that the implementation of the Covenant “falls entirely within the domestic jurisdiction of states” (by proposing the deletion of Articles 19 to 41 of the draft Covenant). By a vote of 31-­­8-­­10, the Committee decided to use the Brazilian joint draft as basis for discussion.92 The Soviet Union’s attempt to resurrect its initial proposal as amended language93 to the joint Brazilian draft was defeated.94 Yugoslavia also offered a series of amendments to the joint Brazilian draft.95 As the Indian delegation would make clear later, these amendments sought to provide the “policy guidance” that the Economic and Social Council asked for in its Resolution 303 (XI). One part of the amendment would have instructed the Commission to “add to the list of rights to be defined by the covenant” political rights, minority rights, and a right to asylum. That part was defeated.96 But the rest of the amendment was still alive, including a section that would replace the original joint Brazilian draft of paragraph 2(e)—­the “separate instruments” provision—­w ith the following—­four recitals and two operative clauses: Whereas the Covenant should be drawn up in the spirit and based on the principles of the Universal Declaration of Human Rights, Whereas the Universal Declaration regards man as a person, to whom civic and political freedoms and well as economic, social and cultural rights indubitably belong, Whereas the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent, Whereas when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man; Decides to include in the Covenant economic, social and cultural rights. Calls upon the Economic and Social Council to request the Commission on Human Rights, in accordance with the spirit of the Universal Declaration to

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include in the draft Covenant a clear expression of economic, social and cultural rights in a manner which relates them to the civic and political freedoms proclaimed in the draft Covenant.

This part of the Yugoslav amendment was still in play. Delegations favoring the original joint Brazilian draft sought support. Greece and New Zealand97 tried to strengthen the language of the original joint Brazilian draft by pointing out that the “rights” (including, but not limited to, economic and social rights) that the “additional instruments” would cover “may require further implementation by regulations,” and thus would require a separate instrument from the draft Covenant. Roosevelt felt the Yugoslav proposal was too extreme; that a mandate to include economic and social rights in the covenant would postpone the drafting and completion of the covenant for many years.98 Lebanon believed that a legally binding covenant that included economic and social rights “would expose [states] to attacks from the international community or other signatories of the covenant if they failed to respect its provisions.” 99 New Zealand again conveyed that they were not trying to exclude economic, social, and cultural rights but rather “that it would be impossible to provide for the inclusion of all economic, social and cultural rights in the draft covenant in the time available. Hence, it would be preferable to include only the most essential of those rights and to provide for the inclusion of additional rights in supplementary instruments and measures.”100 India took a fairly odd position. It disagreed with the “additional instruments” language of Section 2(e) on the joint Brazilian draft resolution because it did not provide the policy advice sought by the Economic and Social Council in Resolution 303 (XI). India believe the recitals included in the Yugoslav amendment constituted just such policy, and therefore that India would support the amendment, as long as it also stated that economic, social, and cultural rights be enumerated in separate, subsequent covenants.101 At first glance, it seems that India was being contradictory. But it was not. This became clearer when the delegate remarked, “The conclusion was that basic economic, social and cultural rights must be included in the covenant. That would not prevent the drafting of a separate convention or conventions on the same question.” Whereas the Soviet proposals (that had been defeated) were highly specific and actually included already drafted articles on a variety of economic and social rights, the Yugoslav proposal did not do so. The position supported by India was that while the draft Covenant might contain some general expressions of economic, social, and cultural rights—­perhaps similar in language to Articles 22–­27 of the Universal Declaration—­subsequent instruments

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should be drafted to provide some legal basis for those “rights” by specifying more clearly the nature and extent of state obligations. Comments made by the Mexican delegate accord with this understanding.102 It was all a matter of interpretation about what, exactly, Yugoslavia intended by their amended language. But no delegation sought to make the language of the draft resolution’s section on economic, social, and cultural rights more specific—­not even the Soviet Union. The significance of this compromise would become evident the following year during the Commission on Human Rights’ seventh session. During the drafting of this resolution, no fewer than seventeen different amendments were proposed in the Third Committee.103 The Yugoslav proposal to include economic, social, and cultural rights in the covenant was adopted by a 23-­­17-­­10 vote. After votes on other amendments, a consolidated draft resolution104 was adopted 29-­5 -­13 on November 17.105 Among those voting yes for the consolidated draft were Mexico, Venezuela, and the United States.106 The vote was not by roll call, but from the verbatim records we know that the five no votes came from Australia, the Netherlands, New Zealand, South Africa, and the United Kingdom—­whose delegate scolded the Committee for playing politics with the topic of human rights: “The Committee should ponder the fact that, while a majority of its members had insisted upon the necessity of including economic, social and cultural rights, there had been no fewer than twelve abstentions from the proposed deletion of Articles 19 to 41, which dealt with measures of implementation. It was time that Member States asked themselves seriously whether it was possible just then to draft an effective covenant on human rights. If the honest answer was ‘no,’ they should have the courage to say so.”107 The Debate in the General Assembly: December 4, 1950 The Soviets were tenacious. They had been recycling the same set of proposals they first introduced in the Commission during its fifth session in 1949. Yet the sound defeat of their proposals in the Third Committee did little to deter them. As debate on Draft Resolution I began in the plenary session of the General Assembly on December 4, 1950, their alternative proposal was on the agenda.108 The debate that day was not about the wisdom of the directive to include economic, social, and cultural rights but rather whether to include the already drafted articles that appeared in the Soviet proposal. Of course, Yugoslavia was not going to vote against its own proposal, yet the communist bloc countries (USSR, Poland, Ukraine, Czechoslovakia, and Byelorussia) made it clear that if the Soviet amendments were not adopted, they would abstain from voting on the draft resolution.

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During the plenary session leading up to the vote, several countries explained how they would vote, since the draft resolution contained a preamble and seven substantive sections on the future work of the Commission on Human Rights. Because the draft resolution had been cobbled together from so many different proposals and amendments, the vote would be conducted section by section. The United Kingdom stated that it would vote against draft resolution I because it was both inadequate and impractical, and that it called for the Commission on Human Rights to undertake a task for which it would not have enough time, “without skimping its work and so producing a draft which would not be worthy of the United Nations.”109 The Australians said they would abstain. They were particularly concerned with the directive to include economic, social, and cultural rights in the draft Covenant. They acknowledged the importance of these rights, but they also reminded the General Assembly how long it had taken to draft the first eighteen articles covering “basic civil rights.”110 The French delegation was particular testy about the significant problems it saw in the draft resolution but also about the counterproposal offered by the Soviets. France called the draft resolution “wordy and vague,” some of the statements “quite superfluous . . . ​at times the text is sheer verbiage.”111 France was particularly disappointed about the provisions on the implementation of economic, social, and cultural rights, calling them “very weak—­extremely weak—­empty and, indeed, practically useless.”112 “The covenant must not be another version of the Universal Declaration of Human Rights. Either it is nothing at all or it is a legal instrument embodying specific and agreed obligations. The commitments entered into should be weighed with care. It is necessary to go forward, even if the rate of progress is slow, but it is also necessary to take into account the legal consequences of implementing such commitments; otherwise the covenant will be meaningless.”113 Perhaps with the Soviets in mind, the French delegate continued: “No, I am wrong; it could have a meaning if the only purpose of having such a covenant were to secure some political and propaganda advantage by means of oft-­repeated democratic slogans. It could have a meaning if the only purpose were to use a phraseology savoring of progress as a cloak for continuing the old errors of the policy of the reason of State.”114 Albeit less eloquently, the Greek delegation echoed France’s concerns, pointing out first that they were talking about drafting a legally binding covenant “and not just a declaration with psychological and moral significance:” Continuing, the delegation stated: “It must not be confined to the enunciation of simple precepts, which, as everyone knows in advance, cannot be put into practice in certain countries. . . . ​Limited

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rights, enjoyed by as many people as possible, but rights which are real and are really observed—­that is what an honest, sincere and realistic conscience demands.”115 Lebanon considered the draft resolution to be “an obstacle to the advancement of work on human rights and is, indeed, a step backwards.”116 By way of providing some historical context to the discussion, Lebanon mentioned how, in the early days of the United Nations, the human rights idea started out “in a nebula. That nebula was a vague and general idea of a single text which would include everything concerning human rights.”117 Noting that once the Commission had gotten down to work “and faced the facts and the difficulties,” a much clearer idea of what was possible had begun to form. Thus, there was the idea to have a separate declaration and a separate covenant, and furthermore to group different kinds of rights together, and to first draft those rights that were the easiest to formulate, “the rights which require the least contribution from other United Nations organs and the specialized agencies.”118 Lebanon was concerned that the draft resolution thus called for a return to the nebula. It would instruct the Commission “to disregard its own experience . . . ​and to forget that economic, social and cultural rights differ from personal and civil rights in the sense that their implementation implies the existence of economic, political, and social conditions which do not depend merely on the will of authorities or governments.”119 They announced their intention to abstain on voting for the draft resolution. All of the Soviet amendments were soundly defeated in the Assembly.120 Draft Resolution I was adopted by the General Assembly by a vote of 38-­7-­12, becoming General Assembly Resolution 421 (V).

The Significance of General Assembly Resolution 421 (V) The Yugoslav proposal to instruct the Commission on Human Rights to include economic, social, and cultural rights in the draft Covenant was fairly remarkable, considering that the original draft resolution (the joint Brazil-­Turkey-­U.S. draft) would have instructed the Commission to draft a separate convention after the completion of the draft Covenant under consideration at that point. There are subtleties, however, in this result that a cursory reading of the proceedings of the Third Committee would miss. The literature often points to the wide gap between yes and no votes on this resolution—­indicating widespread support for the inclusion of economic, social, and cultural rights in the Covenant. But it overlooks the outright rejection of already drafted articles proposed by the Soviet Union. Why? I would suggest that there were two reasons for this result, which are

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evident in the debates over this issue that began in the Commission itself. The first is that many delegations supported inclusion in principle, but wanted the Commission—­rather than the Assembly—­to iron out the details. Even Yugoslavia’s modest proposal that the Commission include specific kinds of rights (without offering already written articles) on universal and equal suffrage, political participation, minority rights, and asylum was rejected. The directive in Section E of 421 (V) was, in the end, very open-­ended: the Commission was to include “a clear expression” of economic, social, and cultural rights “in a manner that relates them to the civic and political freedoms proclaimed by the draft Covenant.” A second very important aspect of Resolution 421 (V) was the strong tie-­in to the Universal Declaration of Human Rights. We should recall that during discussions in the Commission, many delegations suggested that some expression (again) of economic, social, and cultural rights—­ short of precisely drafted articles—­should be included in the draft Covenant, for the sake of recognition. Thus, the proposals for separate instruments or protocols that would be drafted later to give those “general expressions” more precision was proposed by the Commission. Among the proposals for including these generally worded provisions was simply to borrow from the language adopted in the Declaration— ­to, in a sense, reproduce them in the Covenant. This is a key insight, I believe, and it is indeed supported by the Resolution’s insistence that economic, social, and cultural rights be expressed “in accordance with the spirit of the Universal Declaration of Human Rights.” Consider in addition the principles that constitute the recitals that open Section E of Resolution 421 (V): Whereas the Covenant should be drawn up in the spirit and based on the principles of the Universal Declaration of Human Rights, Whereas the Universal Declaration regards man as a person, to whom civic and political freedoms and well as economic, social and cultural rights indubitably belong, Whereas the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent, Whereas when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man.

The context of the Universal Declaration of Human Rights is quite prominent. The recitals—­especially the first and last—­speak to spirit, aspirations, and ideas. One also notices that, at least at this point, the

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rhetoric of indivisibility is notably absent. In other words, whereas the categories of rights are interconnected and interdependent, they are, in the end, still separate categories. The resolution directs the Commission to relate economic, social, and cultural rights to the civic and political freedoms already proclaimed in the Covenant. From the Sidelines: John Humphrey’s Views During this crucial period, John Humphrey was the Director of the Division of Human Rights within the U.N. Secretariat. The role of the Division was to offer research and other kinds of support throughout the U.N. system in the area of human rights. Humphrey’s office worked most closely with the Commission on Human Rights but also lent its support to the Commission on the Status of Women and the Economic and Social Council. It also worked closely with a number of specialized agencies, such as the World Health Organization and the ILO. Humphrey’s diaries help us to read between the lines especially about the controversies surrounding economic, social, and cultural rights. Humphrey supported the one Covenant position but also recognized that some states supporting that position did so for instrumental reasons. He was especially wary internal U.N. politics during a time when the relationships between the U.N. and the specialized agencies (especially the ILO) were still under negotiation (more on this in the next chapter). Humphrey made one entry in his diary during the discussions about the Covenant in the Eleventh Session of the Economic and Social Council, in which proposals for the inclusion of economic, social, and cultural rights in the draft Covenant were beginning to form. Humphrey found it surprising that especially the U.S. and the U.K. would oppose such a move: “Ideologically the West is bankrupt. But it is in the minds of men not on the battle fields that these great issues will ultimately be decided.”121 As this question moved into the Third Committee, Humphrey observed on October 30, “Perhaps the most significant aspect of the debate in the Third Committee on economic and social rights is, what it appears to be, the general feeling that if these rights are not included in the First Covenant on Human Rights the United Nations must proceed forthwith to the drafting of other covenants in which they will be included.”122 He also commented on the testimony given to the Committee by the ILO, which was cautious about the inclusion of generalized labor-­related rights in the Covenant, given the large number of highly specific ILO conventions that were already in force. As far as Humphrey was concerned, this was little more than a turf war and the testimony of

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the ILO “cannot be interpreted otherwise than meaning, this is I.L.O. territory and the U.N. should keep away.”123 As the debates moved along in the Third Committee, Humphrey began to see the complexity of problems surrounding different aspects of the Covenant: precision versus generality; the problem of implementation; the question of economic, social, and cultural rights; and other debates about the applicability of the Covenant to federal states (like the United States) and nontrust territories. “This debate in the Third Committee shows, if it ever needed to be shown, that the obstacles to be overcome before an International Covenant on Human Rights comes into force are simply tremendous.”124 In some sense, however, he was more pleased to see these debates move forward in the U.N. rather than having the General Assembly devise quick and sloppy solutions. “I would rather wait ten, or even twenty, years in the hope of getting a good covenant than accept the present draft or indeed anything that the United States or the United Kingdom will take now.”125 Humphrey wanted a Covenant with teeth. He was thus very pleased on November 8 when he wrote: Today has been perhaps the most important day in the history of the draft International Covenant on Human Rights. For it was decided today that the articles are to be precisely drafted with the limitations spelled out. Even the U.S. voted for the amendment. Thus ends the long fight between the U.S. and the U.K. on the question, a fight which more that any other single factor is the reason why the Assembly did not have before it this year a draft that could have been a basis for final action. I consider this a great victory indeed for human rights; because it may now be possible to get a text which fixes firm obligations.126

When the Third Committee voted on November 14 to instruct the Commission on Human Rights to include economic, social, and cultural rights in the Covenant, Humphrey was pleased yet wary as to how the result came about: “I have always argued for this but I nevertheless detect an element of irresponsibility in the decision. One feels that the sponsors of the move have no intention of taking the steps that will be necessary if it is to have reality.”127 His mood turned particularly sour a few days later when the Committee voted not to take a decision in the matter of implementation but to send that question back to the Commission. This move was engineered by the Communist states and several developing countries, but it also represented a failure of leadership on the part of the Western democracies, which favored a fairly weak regime of state-­to-­state complaints only (and took a dim view of individual petitions or petitions from groups or organizations). Humphrey wrote: “What will happen in the Commission is a forgone conclusion. With

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the leadership of the U.S.A., U.K. and France it will, of course, give its blessing to the unsatisfactory system now in the draft. What does all this mean? Have the ‘victories’ of the last few weeks been simply manoeuvres against the colonial powers? How sincere for example has Noriega128 been in the fight for economic and social rights? It was he who today fathered the move to refer the question of implementation back to the Commission without vote.”129 On November 17, the Third Committee held a final vote on what was then simply called Draft Resolution I, which would become General Assembly Resolution 421 (V). Humphrey described it as “a monster with eight heads, 12 hands and 12 feet.” He wrote: “My diagnosis remains the same. The great powers by their failure to accept their responsibilities lost leadership in the committee to countries like Mexico (Noriega), Pakistan (Bokhari) and Saudi Arabia (Baroody). These latter played on anti-­colonialism for all it was worth, made demagogic appeals for the inclusion of economic and social rights, etc. But when the real test came—­implementation—­they backed away.”130 Its work nearly completed, Eleanor Roosevelt gave a reception for the members of the Third Committee on November 24, 1950. Afterward Humphrey wrote that he and Roosevelt had a short talk: “She agrees with me that the Third Committee is in revolt but thinks that it is a revolt of the dark skinned people against the white. It is more than that. She said that she told the other members of the U.S. delegation that they should be studying the mood of the Third Committee. ‘If you want to know what the other countries think of us come into the Third Committee.’”131 This observation is quite interesting, given that Humphrey had always supported the inclusion of economic, social, and cultural rights in the Covenant but was beginning to see that advocates of this position increasingly were using their inclusion for other ends, most obviously in the drive to include a right to self-­determination in the Covenant. One notices that there is little in Humphrey’s account that points to an ideological battle over the nature of different kinds of rights between the West and the East. Humphrey was most concerned with the implementation issue, and as we shall see, was largely responsible for devising a distinct monitoring procedure for economic, social, and cultural rights in the Covenant.

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Chapter 5

Including Economic, Social, and Cultural Rights

Resolution 421 (V): The U.S. State Department “Postmortem” In Chapter 3, I offered a variety of views—­our received wisdom—­about the West and its position on economic, social, and cultural rights. Despite significant evidence pointing to more nuanced interpretations about this question, this debate continues.1 Was the United States really opposed to economic, social, and cultural rights? A review of internal U.S. State Department memoranda and instructions that would be sent to the U.S. delegation at the United Nations sheds an interesting—­ subtle and nuanced—­light on this question. Before moving to the work of the Seventh Session of the Commission on Human Rights, this chapter opens with an examination of how the U.S. State Department viewed the adoption of General Assembly Resolution 421 (V) and the options the U.S. would pursue in the Commission in 1951. A memorandum dated December 22, 1950, sent by the Deputy Director of the Office of United Nations Economic and Social Affairs (James Green) to David Popper, the Principal Executive Officer of the U.S. Delegation to the General Assembly, titled “Post-­Mortem on the Third Committee” reviewed the “Box Score” of voting on issues of interest to the United States at the U.N. Under the “tied” column is listed “Human Rights Covenant,” yet that tie involved a defeat over the decision to include economic, social, and cultural rights in the Covenant.2 In examining the reasons for defeat, the memo mentions the special characteristics of the Third Committee, including Green’s observation that many delegations are “motivated by deep emotional convictions rather than by the political considerations which are in evidence elsewhere in the assembly.”3 Green remarked that the Third Committee “is a forum for the underdeveloped countries and for those that oppose ‘colonialism.’ . . . ​Many different debates had obvious overtones; the colored peoples in opposition to the white, the newly independent

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countries against the administering powers, and the underdeveloped against the industrialized nations.”4 This sentiment was reflected by the comments that Eleanor Roosevelt made to John Humphrey at a reception two days after this memo was written.5 The memo pointed out that “the Soviet delegation and its four satellites took a relatively minor part in the work of the Committee. . . . ​For the most part they expressed their usual positions in a relatively perfunctory manner. As a result, the other delegations did not coalesce into an anti-­Soviet group, but were left free to carry on their battles against the United States.”6 The memo also cites a lack of support from the United Kingdom and France as another reason that U.S. positions did not gain the support that they should have. “Frequent splits between the United States, the British Commonwealth, and the Western European powers made United States leadership difficult.”7 Green also cites the unpopularity of many U.S. positions, which, despite their being “well considered and entirely logical,” were “widely regarded as restrictive and conservative.”8 The next section of the memo makes recommendations for the next year, focusing especially on the need for the United States to take concerted steps to woo especially the underdeveloped states in the Third Committee. “The Third Committee should be regarded next year as a place where the United States can further its political objectives by listening sympathetically to the underdeveloped countries and by meeting their requests whenever feasible.” 9 It also urges a stronger effort at diplomatic preparation for the sixth session of the General Assembly: “We need particularly to try to reduce to an absolute minimum our differences with the United Kingdom, the old Dominions, and the Western European countries, in order to limit the formation of opposing blocs of underdeveloped countries and prevent their playing the other highly developed countries off against the United States.”10 This advice seems to have been heeded, given the fact that the U.S. and the U.K. finally agreed on the level of precision of the drafted language of the first eighteen articles of the Covenant, and on measures of implementation. As for how the U.S. delegation should work diplomatically during the drafting of resolutions in the Third Committee, the memo suggests, “A special effort should be made next year to see that our Delegation does not insist too rigidly on the precise drafting of resolutions” and that the State Department should emphasize “broad objectives rather than . . . ​ details.”11 The delegation should work closely with other delegations to reach consensus and sponsor joint resolutions rather than “attempt to peddle a completed draft.”12 In anticipation of the seventh session of the Commission on Human

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Rights, the State Department issued a position paper to its delegation with respect to the inclusion of economic, social, and cultural rights in the Covenant. The first instruction was for the delegation to propose that the provisions on economic, social, and cultural rights “be limited to general language along lines proposing the promotion of economic, social and cultural progress and development.”13 It added that should these proposals be rejected, the delegation “should undertake to limit this language as far as possible along practical lines generally in harmony with American practice and constitutional principles.”14 In the discussion section on this recommendation, the paper reminded the delegation that the position of the United States since 1948 consistently had been opposed to the inclusion of articles on economic, social, and cultural rights in the Covenant, but that the United States should support their inclusion in “separate protocols” (emphasis mine). Anticipating that the decision of the General Assembly in 1950 would be reconsidered and that such a vote would most likely reaffirm Resolution 421 (V), the memo states that “it seems advisable for the United States to proceed with the development of language expressive of economic, social and cultural rights which is generally in harmony with United States practice and constitutional principles.”15 The memo was far more concerned about the possibility that the Soviet Union and Yugoslavia would propose highly detailed draft articles as they had done in the past. These were “unacceptable to the United States. The proposals are in general drafted along typical communist totalitarian lines, with particular stress on government control.”16 The memo then provided three alternative provisions for economic, social, and cultural rights to be drafted into the Covenant and recommends that the first be given priority. All three proposals anticipated a single article on economic, social, and cultural rights. The first was the most general: that it would be the obligation of states to “promote conditions of economic, social and cultural progress and development for a higher standard of life in larger freedom for all” and to “cooperate for effective international action in economic, social and cultural matters” with the U.N. and the specialized agencies. This proposal was the genesis of the ICESCR’s Article 2. The second alternative was slightly more detailed, mentioning “the development of high levels of education, health, leisure, culture, and living and working conditions in larger freedom for all,” again working cooperatively with the U.N. The third alternative was the most detailed, turning the more specific language from the second alternative above into a preambular clause, with specific clauses afterward:

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(a)  The highest attainable standard of health; (b) Provisions for adequate education designed to enable all persons to participate effectively in a free society to the extent of their capabilities, to develop fully the human personality, and to strengthen respect for human rights and fundamental freedoms; (c) Measures to raise the standard of living, to give special protection to mothers and children, to provide adequate nutrition, housing and facilities for recreation and culture; (d) The effective recognition of the right of collective bargaining, the cooperation of management and labor in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures; (e) Policies in regard to wages and earnings, hours and other conditions of work calculated to ensure a just share of the fruits of progress to all, equal pay for equal work, adequate protection for the life and safety of workers in all occupations, and a minimum living wage to all employed and in need of such protection; (f) The opportunity for everyone to engage in occupations and businesses in which they can have the satisfaction of giving the fullest measure of their skill and attainments; and (g) Measures to provide basic security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond the control of the individual.17 These memoranda make it perfectly clear that the United States preferred a single article about economic, social, and cultural rights as a category, or a single article that would outline, in general terms, the several rights that make up the category. While this may seem like a minimalist approach, the U.S. position was in line with several other delegations’ views on how economic, social, and cultural rights should be expressed, as General Assembly Resolution 421 (V) had instructed. And, as the State Department had instructed, Roosevelt would take on a much more conciliatory stance during the drafting process than had been the case the year before.

The Commission on Human Rights, Seventh Session: April–May 1951 General Assembly Resolution 421 (V) heaped a great deal of work onto the Commission’s plate—­work that was to have been completed during its seventh session, which ran just over four weeks, from April 16 to May 19, 1951. The Commission was directed to do the following:

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the first eighteen articles of the Covenant, improving the wording of some, and include proposed political rights; • study a federal state article and prepare recommendations for the General Assembly in this regard for its subsequent session; • study ways and means to ensure the rights “of peoples and nations” to self-­determination and prepare recommendations for the General Assembly for consideration at its subsequent session; • include in the draft Covenant a clear expression of economic, social, and cultural rights, and in so doing, to seek the input of the U.N. specialized agencies; • consider provisions to be included in the Covenant or separate protocols, for the receipt and examination of petitions from individuals and organizations with respect to alleged violations of the covenant; • add an article to the covenant that would extend the rights therein to non-­self-­governing, trust, and colonial territories of signatory metropolitan states. On April 16, 1951, the seventh session of the Commission on Human Rights opened with theatrics: the Soviet Union and Ukrainians tried to unseat the “Kuomintang group” (which the Ukrainians called “illegal and bankrupt”) from its representation of China. The motion was promptly rejected by Malik, who had replaced Roosevelt as Chair of the Commission.18 Then the United Kingdom queried the extent to which the Commission was bound by the provisions of Resolution 421 (V) on economic, social, and cultural rights. Cassin of France believed the Commission was not bound but that it “would be well advised to make a serious attempt to include economic, social and cultural rights in the first International Covenant as far as possible.”19 This work dominated the entire session. On the opening of the Commission’s seventh session, John Humphrey noted his pleasure with the election of Malik as Chairman. As much as Humphrey respected Eleanor Roosevelt and held her in high esteem, he privately doubted her competence. As he documented in his dairies, Roosevelt got bogged down in procedural debates that slowed the Commission’s work considerably.20 She sometimes worked in secret and was always surrounded by a close-­k nit group of advisors. He often believed she served as a “mouthpiece of the State Department.” 21 Since the completion of the Universal Declaration of Human Rights, Humphrey believed Roosevelt had lost her sense of independent initiative and had been “taken over by Simsarian and Company.” 22 He was thus pleased when Malik was elected, whispering to a colleague that it was “the end of Simsarianism.”23

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Drafting Economic, Social, and Cultural Rights Several proposals for draft articles had already been prepared and circulated among the Commission’s delegations. The USSR recycled the same seven-­article draft it had been circulating since the fifth session of the Commission.24 Yugoslavia had drafted a detailed seven-­article draft as well,25 which it later replaced with a far less detailed revision.26 The United States first proposed a general article27 and then a more detailed revision for a single article that included specific economic and social goals to be secured by states-­parties to the Covenant (these were the two proposals that had been prepared in advance by the U.S. State Department).28 Denmark and Australia offered similar proposals for a single article that would briefly enumerate a variety of economic, social, and cultural rights and measures for their implementation.29 The World Health Organization had also submitted a detailed proposal for an article on the right to health, to which Egypt had proposed minor revisions.30 France moved to transform the Commission into a working group to begin the drafting process. While the General Assembly had instructed the Commission to seek the input of the U.N.’s specialized agencies in this process, there was debate over how they should be included and the role that nongovernmental organizations (NGOs) with consultative status on the Commission would have, especially with respect to voting. Humphrey was especially concerned about those that hoped “to make concessions with words only. To this group belong not only governments but also certain international officials including Jenks of the ILO who is our cleverest opponent.”31 He was thus pleased when the French motion,32 as amended, was adopted with a 14-­2-­2 vote. The working group would include all members of the Commission and the specialized agencies concerned with the rights under discussion, especially the ILO, the World Health Organization (WHO), and the United Nations Educational, Scientific, and Cultural Organization (UNESCO). Concerned NGOs would be invited to attend the sessions but would not have voting rights.33 Humphrey wrote in his diary, “I had something to do with obtaining this result.”34 Humphrey believed the Commission’s seventh session was off to a very promising start: “This is probably the most significant session that the Commission has ever held. It is also the best. We have lost relatively little time on irrelevant debate; and there has been practically no name­calling. There are many reasons for this: 1) The session is being held in Geneva. 2) Morozov, the member from the U.S.S.R. has been extremely cooperative. 3) We have a good chairman.”35 On April 27, the Commission resumed its regular session to consider

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the draft articles prepared by the working group. This phase of the Commission’s work went surprisingly quickly: In two weeks—­from April 27 to May 7—­the Commission discussed, amended, and approved nine draft articles on the following rights: work; rest, leisure, and conditions of work; social security; housing; an adequate standard of living; health; special provisions for women and children; trade unions and the right to strike; and education and cultural rights.36 Compared with what was to come, this was the least troublesome part of the Commission’s seventh session. Nevertheless, Humphrey thought things were beginning to deteriorate. Some delegations—­especially the Soviet Union—­were deliberately attempting to slow down the Commission’s work.37 The Soviets had drafted detailed, highly specific articles on economic, social, and cultural rights. This was especially true of their draft of an article on trade union rights. On the other side (mostly the Western European democracies), the drafting attempts were, in Humphrey’s eyes, “amateurish and ridiculous.”38 But he believed that these “monstrosities [would] be ironed out,” because of the importance of such revolutionary and “truly pioneering work.”39 The only major stumbling block during the drafting of the substantive articles on economic, social, and cultural rights came on May 7. The topic was the right to property. The basis draft was offered by the United States, and it read, simply: “The States Parties to the Covenant recognize the right of everyone to own property alone as well as in association with others and to be protected from arbitrary deprivation of property.”40 The United States later added a second sentence: “Private property shall not be taken for public use without just compensation.”41 Roosevelt declined a friendly amendment offered by the Soviet Union that would have limited the right “in accordance with the laws of the country in which that property occurs/is.”42 Hernán Santa Cruz of Chile said the article raised difficult problems—­ problems that the Commission had faced when drafting Article 17 of the Universal Declaration of Human Rights. Did this right refer to personal property or to the means of production? The inability to answer this question led to a formulation in the Universal Declaration that proclaimed the right without further defining what it meant. During that process, the words “in association with others,” which had been added by the Soviet delegation, “only recognized individual property to a very limited extent and chiefly recognized collective property.”43 Santa Cruz felt that the Commission would find itself in the same position here “as had led the General Assembly to limit itself in the Universal Declaration to an exceedingly simple wording.”44 As for the U.S. amendment regarding just compensation, Santa Cruz recalled that language on arbitrary deprivation had been rejected dur-

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ing the General Assembly debates on the Universal Declaration “because the majority view had been that deprivation of property other than basic property (home, personal, and household articles) was not a violation of a fundamental right of the individual. . . . ​[At the time] there was no reason for recognizing the unlimited right to ownership of the means of production as a fundamental right of the individual.”45 At any rate, Chile accepted the American proposal. “It was important that each State should decide how property could be acquired, as well as what the right should cover.”46 Australia believed that the word “arbitrary” could create difficulties in a legally binding instrument. How would “arbitrary” be determined? The delegate also had concerns with the word “use”: did that mean holding property or occupation of it?47 Demark believed the inclusion of a right to property would jeopardize the overall effectiveness of the Covenant because there was too much variation between countries in conditions determining ownership. In addition, there were instances in which protection against appropriation for private use (e.g., land reform) was more imperative than protection against appropriation for public purposes.48 Any attempt to draft precise language on a right to property, “in view of existing world conditions . . . ​would be doomed to failure from the outset.”49 The USSR believed that Santa Cruz misinterpreted the Soviet position during the debates on the Universal Declaration but suggested an addition to the article clarifying that the right to own property must be subordinated to the legislation of the country where the property is situated. Were that amendment to be adopted, the USSR said it would agree with the American proposal.50 Roosevelt said the United States had opposed this language during the drafting of the Universal Declaration and had not changed its mind. Her understanding of the word “arbitrary” meant “without the substantive and procedural guarantees of the law.”51 Yugoslavia was concerned about the disposition of property illegally acquired and wanted the Commission to be clear about the protection of property based on the means of its acquisition. 52 Greece added another question to the debate about the Soviets’ limitation clause: what about property held by aliens? Citing Jessup’s Modern Law of Nations, the Greek delegate pointed out that ordinary international law recognized alien property rights, and in certain cases an alien could get preferential treatment over a national in order to encourage international trade. 53 To that, India asked, what is “fundamentally property?” Obviously property acquired through labor was fundamental. But what about property that was inherited? And what about women’s property rights, especially in societies that do not recognize such a right? 54

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Denmark repeated its stern opposition to the inclusion of a right to property. There were simply too many unanswered questions, and an article written too narrowly in order to clear up the confusion might cause some countries to reject the Covenant on account of its specificity. As far as Denmark was concerned, property was simply not a fundamental human right: “Human beings could develop their personalities to the full without protection of property rights.”55 The delegate added that given current economic times, an issue such as nationalization of industries makes the question of appropriation highly controversial. 56 Roosevelt disagreed on one point: that more, not fewer, countries would be likely to adopt a Covenant that included property rights. 57 Cassin of France believed that the Commission should not duck the question of a right to property as “insoluble.” Such a right was, after all, in the Universal Declaration. China agreed that a right to property was fundamental. Australia’s delegate reiterated that there were many important points to consider, such as moveable versus immovable property and the meaning of the word “arbitrary.” He pointed out, for example, that the appropriation of Jewish property by the Nazis in the 1930s and 1940s was technically legal. He proposed that the Covenant simply repeat the language of the Universal Declaration. 58 Based on the discussion, a new draft article was proposed. It read: 1. The States Parties to the Covenant recognize the right of everyone to own property alone as well as in association with others. 2. This right shall be subject to the laws of the country in which the property is. 3. No one shall be arbitrarily deprived of his property. Expropriation shall occur only in cases of public necessity or utility established by law and provided equitable compensation is made, account being taken where necessary of the origin of the property and the nature of the possessions appropriated.59 At this point—­a fter all their amendments had been incorporated into the draft article—­the Soviet Union balked. The considerations that made sense were outweighed by difficulties in drafting a precise article that deals with cases of limitation. This, in turn, would lead to the delicate subject of interference in domestic affairs: “The Commission must not stray into spheres where its decisions might come into conflict with the concept of national sovereignty. It had been called upon to draft a legal instrument which would reflect the will of the majority and would be acceptable to governments.”60 Clearly fed up, the Danes proposed a draft resolution, which read: “The Commission on Human Rights decides not to include, at present,

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an article on the right to property in the International Covenant on Human Rights.” It was adopted by a vote of 10-­6 -­2.61

The Umbrella Clause On May 8, the Commission took up the issue that would nearly stall its progress: an umbrella clause that was meant to introduce what was now Section IV of the draft Covenant, containing economic, social, and cultural rights. An analysis of these debates is indispensible for understanding the genealogy of more recent controversies surrounding the obligations embedded in Article 2, Clause 1 of the ICESCR, which reads: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-­operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” In taking a close look at the debate and discussions the Commission undertook from May 8 through May 11, 1951, we see the unfolding and subtle development of the Commission’s thinking about the nature of economic, social, and cultural rights and the obligations related to their protection and promotion. Of significant difficulty for the Commission in 1951—­and indeed for us today—­was determining the scope of obligations and the appropriate international institutional mechanisms for the protection and promotion of economic, social, and cultural rights. Do the obligations rest solely on states-­parties, and how strong are those obligations? Should international assistance be made available to states­parties in order for them to meet their obligations? Would states be required to seek assistance from the international community to meet their obligations? Would they have a right to assistance? What, exactly, would “assistance” include? Would Western states, independent of the U.N. and its specialized agencies, have obligations to developing states? The genesis of all of these questions can be found in the discussions that took place during these four days in May 1951. As the draft Covenant62 stood before the drafting of the articles on economic and social rights began, Article 1 spelled out general obligations for states-­parties with regard to civil rights, which were the only rights enumerated in the Covenant. The first clause addressed nondiscrimination. The second clause obligated states to take whatever measures necessary in order to give effect to the rights in the Covenant within a reasonable time. The third clause required states-­parties to provide effective remedy for violations; that claims of violations be

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heard by competent political, administrative, or judicial authorities; and that any remedies granted be enforced by the state. Article I, then, had been drafted as appropriate for obligations for the protection and promotion of civil rights. It would therefore be necessary to include a similar general clause regarding states-­parties’ obligations with respect to economic, social, and cultural rights. Sweden,63 Yugoslavia,64 the United States,65 and France66 had submitted drafts for this general clause, which would introduce Part III of the Covenant as Article 19. While they differed in important respects (more on this later in the chapter), all these proposals acknowledged that the obligations of states to realize economic, social, and cultural rights would naturally be dependent upon the resources available to them. All of these proposals recognized that obligations would have to be appropriate and compatible with available resources. The United States actually proposed three different draft articles: the first would extend Article I’s nondiscrimination provisions to the rights enumerated in Part III of the Covenant; the second was the general article on State obligations; and the third was a limitations clause.67 The first and third proposals would eventually become Articles 31 and 32 of the final draft. The French proposal was more extensive than the American, Yugoslav, and Swedish drafts: it contained three recitals and an operative clause. The first of the recitals specifically referenced the articles on economic and social rights contained in the Universal Declaration, and the operative clause added international cooperation as part of the steps that states-­parties would have to take for the implementation of economic and social rights. Sweden withdrew its draft, as it was so similar to the American version.68 Greece and India supported the idea of international cooperation in the French proposal, stating that it was “of cardinal importance to the under-­developed countries, which needed help if they were to be capable of implementing economic rights.”69 Pakistan hoped that the U.S. and French drafts could be combined, retaining the preamble of the French version. However, if “there was any danger of that preamble constituting an argument in favor of drawing up a separate covenant dealing with economic, social and cultural rights alone, he would propose that it be deleted entirely.”70 Pakistan was echoing a statement made earlier by P. D. Morosov of the Soviet Union, who had begun to grumble about a “covenant within a covenant” during the previous meeting.71 Now, he was more blunt, stating that these proposals “constitute proof of an attempt being made by certain delegations to embody the provisions relating to economic, social and cultural rights in a separate instrument within the draft Covenant.”72 The very different wording between the American proposal and that found in Ar-

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ticle 1 revealed that “no other interpretation of the intention behind the United States proposal was possible,” and that were this proposal to succeed, economic, social, and cultural rights would be relegated to a secondary place.73 Morosov was suspicious of the French proposal’s simple pledge to ensure the progressive implementation of economic, social, and cultural rights. “The French proposal, having opened as a prayer for the restoration of a sick man, ended as a requiem.”74 Cassin countered Morosov, saying it was necessary to be realistic. “It would be deceiving the peoples of the world to let them think that a legal provision was all that was required to implement certain promises, when in fact an entire social structure had to be transformed by a series of legislative and other measures.”75 Lebanon and Uruguay wondered whether the phrase in the French proposal that grounded state obligations “in accordance with their organization and resources” might constitute a loophole. “A State might envoke the argument that its financial or economic resources were inadequate, to explain its failure to implement certain rights.”76 Chile, Uruguay, and Guatemala were in favor of the Yugoslav proposal (whose language about state duty was a bit stronger), suggesting that it include a clause on international cooperation and the collaboration of the specialized agencies. “Signatory States whose economic situation was difficult would thus be aware that they could rely on help from the international community in implementing economic, social and cultural rights.”77 Australia supported an article that combined the U.S. and French proposals. The United Kingdom felt it could support none of them and would abstain in any vote.78 As the Commission proceeded to combine drafts and craft new proposals, the discussions about the interaction between individual state action and international cooperation became central. Hansa Mehta of India said she would be able to agree to the text “if the meaning was that when the resources of a State were inadequate it would receive international help on certain conditions which it would have to accept. . . . ​It should be for a State to declare that its resources are inadequate and to ask the United Nations for assistance, which should be granted provided the request was justified.”79 The Soviets were increasingly disturbed that those who had initially favored an all-­encompassing Covenant were being led astray by the French.80 On their urging, the Commission took a vote on whether an umbrella clause should even be included in the Covenant. It passed (barely) 10-­8.81 But when it came time to vote for the various proposals that were under consideration, things fell apart. While the French proposal was successfully amended by a variety of minor wording changes, the amended version was ultimately defeated, as was the Yugoslav ver-

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sion. India pointed out that since the Commission had just agreed that a general clause be included in the Covenant, a new proposal was required.82 Malik mentioned that decision itself could be reconsidered but that a deadlock had indeed been reached. The problem remained that without an umbrella clause for Part III of the Covenant, Article 1 would apply to the Covenant as a whole. Yugoslavia was well aware of this and believed that perhaps the content of the umbrella clause should be about extending Article 1’s provisions to Part III explicitly.83 The rest of the meeting was bogged down in procedural mud. Humphrey blamed this turn of events on Cassin: “[This was] one of the worst days in the history of the Commission. . . . ​The person who has been responsible for most of this confusion is the unpredictable René Cassin with whom this umbrella clause has become almost an obsession.”84 The following day, May 10, the French submitted a new draft proposal.85 Again, it contained three recitals and the following operative clause: The States parties to the present Covenant,. . . 4. Undertake to take steps, individually and through international co-­operation, to the maximum of available resources with a view to achieving progressively the full realization of the rights recognized in this part of the Covenant.

The recitals were unproblematic. The debate surrounded the operative clause. As far as the Soviets were concerned, this was no different from what the Commission had already rejected.86 Chile still believed the article would constitute a separate Covenant. But the biggest question was over the extent to which obligations should be based on the resources of individual states, and those that might be available through international cooperation. Greece proposed this wording change: “to take steps, individually to the maximum of their resources, and through international co-­operation.” This would effectively separate what was available nationally from what might be available internationally.87 A subsequent exchange between Egypt and Denmark highlighted the difficulties with this question. Egypt wanted to replace the phrase “maximum available resources” with “whatever resources available” to convey that there were more resources than those available nationally. Egypt also wanted the phrase “if necessary” inserted after “progressively” because certain rights, like trade union rights, could be implemented immediately.88 On the first point, Denmark believed “that might be equivalent to an engagement to use the resources of other States for the purpose.”89 Egypt responded that Denmark had misinterpreted its proposal: “There was no question of laying hands on foreign capital in any country.” He meant to say that the resources would be available through the United Nations and other international organizations, such as the

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International Monetary Fund.90 Denmark agreed that “countries with insufficient resources should be able to obtain help under the [U.N.’s] technical assistance programs or similar projects.” 91 To Denmark, this was unproblematic, under the language of “available,” since such programs were, in essence already available to developing states. Limitations and “Progressive Implementation” Another debate was over the idea of the progressive realization (or implementation) of economic, social, and cultural rights compared to civil and political rights. This debate has been central to contemporary concerns about the interrelatedness of the two categories of rights. This part of the debate was also tied, thinly, to the limitations clause (proposed by the United States) that the Commission had already agreed to adopt.92 The original draft Covenant included a limitations clause in Article 2. As I mentioned at the beginning of Chapter 4, the question of reasonable limitations on the obligations created by the Covenant was an important one. The Covenant allowed states-­parties to take measures derogating from its obligations “in the case of a state of emergency officially proclaimed by the authorities or in the case of public disaster . . . ​to the extent strictly limited by the exigencies of the situation.” 93 However, the second clause of the article specifically prohibited derogations from the protection of certain fundamental rights. States were also required immediately to inform other states-­parties to the Covenant about which derogations they authorized and the date on which any derogation was terminated. Insofar as economic, social, and cultural rights were concerned, the limitations clause adopted by the Commission (which became Article 32) allowed states-­parties to subject economic, social, and cultural rights (Part III of the Covenant) to limitations “as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” As far as Chile was concerned, the limitations clause negated the necessity of the progressive implementation language of the umbrella article, for it implied that economic, social, and cultural rights should not be implemented automatically and immediately. In the end, the French proposal for Article 19 was adopted by the Commission, by a vote of 10-­8 -­0.94 Of those voting against it, the most surprising perhaps was Lebanon, which believed the clause has the effect of prejudging where economic, social, and cultural rights should be in the Covenant. Humphrey’s diary conveyed his pessimism about the future of the Covenant and the sour atmosphere that this debate had fostered. He

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did not understand the need for an umbrella clause in the first place. On May 10, he wrote: The Commission continues to work badly and it is now unlikely indeed that we will finish the Covenant at this session. The reason is undoubtedly what Mr. Morozov correctly calls an attempt to write a Covenant within a Covenant. Ever since the General Assembly decided that economic and social rights must be included in the first Covenant, I have realized that the Covenant would have to be in two parts with a separate system of implementation in each; for a system of implementation which is applicable to traditional political rights is not necessarily applicable to economic, social and cultural rights. But the Americans and the French have carried this logic too far and they are now encumbering the economic and social part of the Covenant with umbrella clauses, general limitations clauses, anti-­discrimination clauses, etc. It is on this that the Commission has been wasting its time for nearly a week. Had anyone set to sabotage our work he could hardly have invented a better idea.95

In the same entry Humphrey also considered that should the Commission’s seventh session turn out to be a failure, he would consider a campaign “to have the General Assembly convene a plenipotentiary conference on human rights which will remain in session until it produces a Covenant.” 96 I do not believe Humphrey ever undertook such a campaign. Monitoring and Reporting Clauses for Economic, Social, and Cultural Rights Closely related to, but distinct from, the question of obligations was the procedure for monitoring implementation of the Covenant’s provisions on economic, social, and cultural rights. The most important aspect of this debate is, perhaps, what was not discussed or debated: whether the contemplated procedures for implementation and monitoring of civil and political rights should be the same for economic, social, and cultural rights. And while the Covenant’s provisions on monitoring of civil and political rights were not yet complete, a violations approach to economic, social, and cultural rights was not on the table for discussion. This was not because it was quashed by powerful interests on the Commission. The discussions make it clear that no one on the Commission believed that state-­to-­state complaints (the only violations procedure already included in the draft under consideration) were appropriate for economic, social, and cultural rights. The possibility wasn’t even discussed. The question about implementation had more to do with the responsibilities, competencies, and turf of the specialized agencies vis­à-­v is the United Nations system than anything else. It is easy to forget that during this early period in U.N. history, the role of what we now call the “the specialized agencies” (functional inter-

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national organizations) and the relationship they would have with the United Nations (a political organization) had to be negotiated. Some organizations (or their nuclear predecessors) already had independent relationships with their member states. This was especially true of the International Labor Organization (ILO), which was created along with the League of Nations in 1919. Each of these institutions had its own constitution and was an independent, multilateral organization, apart from the U.N. The General Assembly had to craft a number of agreements with each of these organizations, spelling out how they might cooperate in a manner that would respect the organizations’ full autonomy and independence as IOs. This reality would come into play during the discussions in the Commission about implementation, monitoring, and reporting on economic, social, and cultural rights. Lebanon sponsored the proposals for a system of state reporting on the progress of implementation of economic, social, and cultural rights that John Humphrey had earlier told his staff in the Division of Human Rights to begin drafting. Humphrey contemplated a self-­reporting system for economic, social, and cultural rights given that they were to be achieved progressively, keeping in mind the differences in levels of development and the material resources available to various states. He wrote, “The idea is to help governments to fufil their obligations rather than to penalize them for violations; and use is made of the technical assistance programme. If the plan were acceptable to a majority of the members of the Commission it might have interesting repercussions.” 97 Charles Malik introduced the Humphrey draft and outlined four basic considerations underlying it: • the

Commission on Human Rights should take no action that would weaken the authority of the specialized agencies or lead to an overlap of activities; • everything must be done to strengthen the hand of the specialized agencies in all matters falling within their respective competencies; • nothing should be done to divest the United Nations of its proper responsibilities in the economic, social, and cultural fields; and • no effort should be spared to bring out the closest possible cooperation between the United Nations and the specialized agencies in those fields.98 It was clear to Malik that the specialized agencies would have a variety of roles to play with regard to the subjects covered by each of the draft articles on economic, social, and cultural rights that were now included in the Covenant. Therefore, the reporting procedure outlined in the proposed articles he sponsored was supported by three guiding prin-

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ciples: (1) the U.N. itself must not be divested of its direct responsibility in the field of economic, social, and cultural rights; (2) there must be periodic reporting in that field by the states that sign the Covenant; and (3) there must be an international organic link between whatever machinery was set up for the implementation of the draft Covenant and the U.N. technical assistance programs. “Many States would welcome evidence of the intention to assist them to live up to the principles of the Covenant.” 99 The original Humphrey proposal100 envisioned the establishment of a second Committee, similar in composition to the Human Rights Committee envisioned in what was now Part IV of the draft Covenant. The second Committee would review reports submitted to it by states-­parties, through the Secretary-­G eneral of the United Nations. Humphrey’s original proposal envisioned a three-­step reporting procedure: states would have to report on their progress in implementing certain (yet unspecified) rights within one, two, and three years. This was, most likely, Humphrey’s way of responding to the black-­and-­white character of some of the debates he had been hearing about immediate versus progressive implementation. In their reports, states-­parties would have been allowed to include “statements relating to factors which have affected adversely the degree to which they have been able to protect the human rights under review during the period in question.”101 In ascertaining progress, the Committee was to take into account a number of factors, such as basic material resources, exceptional circumstances (like a public emergency or disaster), constitutional difficulties, and so forth. The most interesting aspect of Humphrey’s proposal dealt with cases where the Committee had concluded that a state-­party had not made adequate progress: “it may arrive at an opinion as to the type of technical assistance which, in its opinion, could profitably be accorded to the State Party concerned with a view to aiding it in taking steps to protect to a higher degree the right or rights in question.”102 This is a remarkable departure from the provisions for handling state-­to-­state complaints already drafted for civil rights—­and even further from the proposals that were already circulating for allowing individual complaints to be heard by the Human Rights Committee.103 And the final articles drafted would be even less detailed, as I explain shortly. René Cassin of France had a rather dramatic difference of opinion from the rest of the Commission when it came to the articles for monitoring. France had supported the idea of one Covenant with both sets of rights. Cassin had worked assiduously on the umbrella clause—­as John Humphrey recalled in his diaries. While he believed that different procedures might be appropriate for civil rights compared to economic and social rights, he wanted them to be included in the same instrument. As

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far as supervision was concerned, he envisioned a two-­column approach: The Commission on Human Rights itself would be responsible for those certain rights in Column A. This would include rights subject to a system of reporting by states-­parties and whose implementation would require coordination with the U.N.’s specialized agencies. Column B would include rights subject to a complaints procedure, which the Human Rights Committee would handle unless its purview had been excluded (e.g., fact-­finding and conciliation procedures of the International Labor Office, which had been established to cover trade union rights violations).104 Categories were not important. In fact, Cassin wanted to see the system of progress reports extended to civil rights as well as economic and social rights, and he thought that there was no reason the Expanded Programme of Technical Assistance could not include the strengthening of institutions for the protection of civil and political rights as well as economic and social rights. Cassin did not support the creation of a separate Committee along the lines proposed by Humphrey. Waheed of Pakistan agreed, but for different reasons. Even though he believed “no distinction should be made between the implementation of civic, civil and political rights and that of economic, social and cultural rights,” he was opposed to “commission/committee creep” that might deprive the General Assembly and the Economic and Social Council of any initiative.105 During these discussions, many delegates became concerned that time was running short: there were still several items on the agenda that had not yet been discussed.106 Humphrey recounts that he was working closely with Malik to keep his original proposal intact in the face of Cassin’s support for counterproposals from, in particular, the ILO (Humphrey believed Cassin was “in the pocket of the specialized agencies”).107 He includes a note at the end of his entry: “My optimism of a few weeks ago has turned to the blackest pessimism.”108 To settle the matter as quickly as possible, the Commission established a working group to consider the proposals for monitoring and implementation of economic, social, and cultural rights. On May 16, the working group produced a new draft proposal.109 It jettisoned the idea of a separate committee as envisioned by the Humphrey proposal but retained the reporting procedure (but not in as much detail as the Humphrey draft). The new proposal called for periodic reporting, the timing of the steps to be determined by the Economic and Social Council. Reports would be submitted either to the Secretary-­G eneral or to the specialized agencies where their competencies came into play. After some minor amendments were added, on May 17 the Commission voted seriatim on the ten articles dealing with these implementation measures. All passed easily. Yugoslavia abstained on each vote. The Soviet Union voted against every article.110

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A Very Odd Covenant The time allotted for the Commission’s seventh session had run out. The Covenant they had amended was an odd-­looking creation. The seventy-­three-­article draft Covenant now had a brief preamble and six parts: Part I included the original obligations and limitations articles from the original draft Covenant (which included only civil rights). Part II enumerated substantive articles on civil rights; Part III contained the substantive articles on economic, social, and cultural rights (with Article 19 introducing these rights). Part IV outlined the composition of the Human Rights Committee and the state-­to-­state complaints procedure. Part V included the procedures for reporting. Part VI included the provisions for ratification, accession, and entry into force. The draft included a blank article (71) for a federal-­state clause. The draft Covenant’s odd nature was highlighted by the Commission’s notations on Parts IV (on the Human Rights Committee) and V (on the reporting procedure) of the Covenant: “The Commission did not decide whether this Part should relate to the Covenant as a whole or only to Parts of it.” This indecision should not be interpreted as disagreement about principles: the Soviet Union and Ukraine wanted a Covenant of an entirely different character from the one that the Commission drafted. In this, they were a minority of two. France did not necessarily believe that the state-­to-­state complaints mechanisms of Part IV should be extended to Part III of the Covenant, but the French delegates did believe that the reporting procedure in Part V should extend to the civil rights included in Part II. The remainder of the Commission’s members felt that they simply had not had enough time to hash out the details of these two different implementation and monitoring procedures after what had been the most arduous and conflict-­r idden six-­week session the Commission had ever had. For most of these delegations, this indecision on the part of the Commission was (relatively) unproblematic. A smaller minority disagreed. These tensions set the stage for the final debate of the Commission’s seventh session on the new draft Covenant on Human Rights.

The Indian Proposal for Reconsideration of 421 (V) On May 18, 1951, India introduced a draft resolution that had the effect of requesting that the General Assembly reconsider its decision to include economic, social, and cultural rights in the draft Covenant. The proposal’s recitals reiterated that both sets of rights were equally fundamental and therefore important, but that civil and political rights were justiciable whereas economic, social, and cultural rights were not. By

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virtue of this distinction, the Indian proposal continued, the two sets of rights required entirely different measures of implementation, thereby requiring separate instruments. Explaining the reasoning behind the proposal, Hansa Mehta suggested that the reason the General Assembly had made its decision the year before was from a fear that if economic, social, and cultural rights were not included in the Covenant, there would have been considerable delay in drafting such articles for a separate covenant. Seeing that the Commission, during its seventh session, had done that work, such a fear was unwarranted.111 Furthermore, she stated, some states would be in a position to adopt a Covenant on civil and political rights immediately “whereas their resources and state of economic development did not permit them to implement the economic and social rights at one stroke of the pen.”112 Arguments against this proposal ranged in content. Some (Egypt, Pakistan, the Soviet Union, Yugoslavia, Ukraine) believed that, as a matter of principle, the foundation of the General Assembly’s decision in Resolution 421 (V) was based on the Assembly’s determination that “the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent” and that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man.” The very act of separating these rights into two distinct instruments would therefore undermine these principles. A related argument coming from the communist bloc—­one that would later grow in its intensity—­was that economic, social, and cultural rights formed the basis, or in the words of Yugoslavia, the “natural foundation” of civil and political rights. “If provisions relating to [economic, social, and cultural rights] were not implemented, [civil and political rights] would degenerate into a mere declaration of pious hopes.”113 Others (France, Egypt, the Soviet Union, Yugoslavia, Ukraine, Uruguay) firmly believed the matter had already been settled by 421 (V), some holding further that neither the Commission nor the Economic and Social Council was empowered to question a General Assembly resolution. Still others (Pakistan, Chile, and the Soviet Union) drew out a crucial relationship between economic, social, and cultural rights and wider principles, such as international economic cooperation (development assistance) and the broader principle of self-­determination mentioned in the U.N. Charter—­a principle that was quickly becoming an anticolonial mantra. As Santa Cruz, the Chilean delegate saw it, “the Commission was not drafting a Covenant for the benefit of future generations. The draft it had produced was in keeping with the present situation in a world which found itself in the throes of evolution and change.”114

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The most pointed and ideological opposition to the Indian proposal came from the Soviet Union and the other “people’s democracies.” In response to Eleanor Roosevelt’s claim that the United States was a generous country, and had “been playing an active part in improving conditions in other countries long before the United Nations had come into existence,”115 the Soviet representative charged that “everyone knows that the effect of that assistance had been to retard the recovery of the countries assisted, in the interest of American monopoly-­capitalism.”116 The Soviet, Yugoslav, and Guatemalan delegations also registered their rejection of the nonjusticiability of economic, social, and cultural rights, pointing out that their own systems offered such relief through the courts. Yugoslavia pointed out that Article 8 of the Universal Declaration had already created such an obligation.117 China hedged. It had voted for 421 (V) and felt that it should stick by its earlier vote. And while it believed that “any artificial segregation could only lead to difficulties,” China did not want its “no” vote on the Indian proposal to be interpreted as meaning that China would not be in favor of “the [future] negotiation of detailed instruments relating to particular aspects of economic, social and cultural rights.”118 France, led by Cassin, related a mostly procedural and principled set of arguments for opposing the Indian proposal. A year earlier, France had argued that the Covenant should be drafted in stages—­an argument the General Assembly had rejected. Therefore, “that decision of the General Assembly, based on psychological considerations, was of such importance as to overshadow all other factors.”119 Believing that technical considerations had “lost a great deal of their force,” Cassin now saw a possibility for the adoption of implementation procedures that would apply to the entire Covenant—­w ith the exception of a role for the specialized agencies for economic, social, and cultural rights. Should the Indian proposal fail, he would ask the Commission to consider applying the implementation procedures contemplated for economic, social, and cultural rights to the first eighteen articles of the draft Covenant.120 Turning to the countries that supported the Indian proposal, speaking on behalf of the United States, Eleanor Roosevelt laid the groundwork for what would eventually become the American position: that the United States had cooperated in the drafting of economic, social, and cultural rights; that the United States believed in the importance of these rights, but that it, like many other members of the Commission, recognized a significant difference between the two categories of rights. That distinction had already been drafted into the Covenant, by virtue of Article 19, which was similar to Article 22 of the Universal Declaration.121 In addition, the draft Covenant contemplated separate monitor-

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ing and implementation procedures: state-­to-­state complaints for civil and political rights, and self-­reporting for the implementation of economic, social, and cultural rights.122 Roosevelt also anticipated what might lie ahead were the Covenant, which now included economic, social, and cultural rights, to be interpreted in such a manner as to translate states-­parties’ national obligations to progressively implement economic, social, and cultural rights through international cooperation into interstate obligations—­r ights­claims for development assistance: Any co-­operation in international action undertaken by the United States of America was the co-­operation of the American people as a whole. Certain representatives considered that her country could make large contributions to the improvement of conditions throughout the world without any drain on her resources, and that therefore the United States of America should be willing to do anything they were asked to. The American people, however, did not always understand clearly why they should have to make sacrifices in order to help other peoples to achieve higher standards of living; it was not always clear to them that in the long run such sacrifices would contribute to their own welfare as well as to that of the rest of the world. She expected that the Soviet Union representative would retort that the United States of America was not interested in the fate of the workers of the world. Quite apart from the fact that there were very few people in her country who were not themselves workers, such a statement would be totally unfair. The United States of America was a generous nation; it had initiated the programme of technical assistance to under-­developed countries, and had been playing an active part in improving conditions in other countries long before the United Nations had come into existence. If the Commission would only try to be a little less critical of the fact that the United States of America did not always quite understand the viewpoint of the majority, it would be seen that they had accepted their full share—­and a large one—­of the burden.123

The United Kingdom, which had always taken a dim view of the inclusion of economic, social, and cultural rights in the Covenant—­and would later express a great deal of skepticism at the feasibility of even a separate Covenant on these rights—­focused its support for the Indian resolution mostly on the fact that the first eighteen articles relating to civil rights were in nearly final form and “a considerable period . . . ​ would probably elapse before [the articles on economic, social, and cultural rights] were ready for acceptance.”124 In considering drafting a separate Covenant on economic, social, and cultural rights, the U.N. could move to complete and open for signature the first Covenant more quickly.125 This was a position echoed by Greece, which also agreed with the United States on the implementation question.126 In particular, the Greek delegate pointed out that the arguments put forth by some countries that there was no difference in the manner of implementation for

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both sets of rights “were valid only for those who accepted the idea of implementation on a national basis.”127 As contemplated by the language already included in the draft Covenant, the realization of economic, social, and cultural rights creates “demands . . . ​upon the available resources of States, and that the assistance and the idea of international co-­operation were also brought into the picture.”128 Denmark’s support for the Indian proposal was primarily based on its belief that economic, social, and cultural rights were essentially of a different character from civil and political rights. The Danish delegate urged his colleagues to keep in mind that while the Universal Declaration was a political instrument, the Covenant was a technical one, intended to give effect to the Universal Declaration.129 The Commission rejected the Indian proposal in a 5-­12-­1 vote. Australia abstained, believing that economic, social, and cultural rights belonged in the Covenant alongside civil and political rights, “even though that might delay its completion”; also, Australia had been a co-­sponsor on the original draft resolution with the Soviet Union to include those rights in 1950.130 What is interesting is what happened after this proposal failed and the same question was taken up by the Economic and Social Council in August 1951, followed by thirty-­five meetings devoted to this and other questions in the Third Committee of the General Assembly from November to February of 1952. Seven countries that rejected the Indian proposal for reconsideration would end up changing their votes in the Third Committee: Australia, China, France, Guatemala, Lebanon, Sweden, and Uruguay. How this dramatic shift occurred is the subject of the next chapter. After the defeat of the Indian proposal, Charles Malik gave a prescient closing statement. He said that this issue cut across the ideological spectrum and would come up again, and that “something would have to be done about it.” Over the past 150 years, the less-­fortunate had been making their claims “with regard to their economic, social and cultural position” (emphasis mine) with growing insistence. “It was essential to recognize that such rights were of equal importance with others, but they had to be considered in their proper place in their proper order of importance.”131 The significance of the protestations of the underdeveloped countries “must be given due weight,” but other governments “failed to understand its nature.” While Malik agreed that Western powers “were doubtless doing their utmost both within and outside the United Nations” and “could be proud of what had been accomplished both within and outside their countries,” that was not enough. The Western powers might be right, but being right and doing right were two different things. The West needed to be more mindful of the inequalities embedded within the international system itself, between what would

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later be called the Global North and South: “The most sincere partisans of peace and concord between nations must earnestly hope that [the minority Western powers] reconsider the methods of their co-­operation with other States Members of the United Nations, in the economic, social and cultural fields.”132

The U.S. Strategizes After the close of the Commission’s seventh session, Eleanor Roosevelt visited Washington, D.C., and met with a number of people from the State Department’s Office of United Nations Economic and Social Affairs as well as President Truman and Secretary of State Dean Acheson. A memorandum of the conversation at the State Department covered Roosevelt’s report on the work of the seventh session of the Commission and a proposed strategy for the United States for the upcoming sessions of the Economic and Social Council and General Assembly. Roosevelt recalled that Malik had heavily stressed the needs and aspirations of underdeveloped states and the need for U.S. leadership, not only in the economic field but in the political field as well. As far as economic, social, and cultural rights were concerned, “In the minds of Dr. Malik and others this meant that the Economic and Social Articles had become a symbol of the aspirations and needs of these countries. They did not attach the same importance to civil and political rights as does the United States and some of the more developed countries . . . ​they look to [economic, social, and cultural rights] as a lever which may help to raise them out of their present depressed condition.”133 The controversy, according to the memo, was about the U.S. view that economic, social, and cultural rights are goals and not legal obligations. The underdeveloped states “do not understand, and in fact resent, the unwillingness of the United States to state them in terms of rights.”134 Roosevelt said this controversy confronted the United States with a very difficult problem: its usefulness for the Soviets’ “reckless propaganda campaign.”135 It was Roosevelt’s opinion that no matter how much the United States pressed the case diplomatically, there was no possibility of separating economic, social, and cultural rights out of the Covenant at that point. She also pointed out a potential problem with economic, social, and cultural rights that were generally worded—­even though the United States favored general wording over specific wording. Such articles “can cause us a great deal of trouble both in terms of public opinion and in terms of their actual application. Unless very carefully safeguarded, their inclusion in the Covenant would mean the rejection of the whole Covenant by the Senate.”136 The participants at the meeting agreed, reluctantly, that any campaign

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to separate economic, social, and cultural rights out of the Covenant would be “unproductive and unwise.”137 One suggestion was that the United States submit a reservation upon signing the Covenant, to the effect that the United States considered economic, social, and cultural rights as objectives to be attained by progressive action rather than legal obligations. The reservation would have to make very clear the different character of economic, social, and cultural rights compared to civil and political rights.138 The advantage of the reservation approach was that it would make it possible for the United States to “go along” with the development of the Covenant, as well as make it unnecessary to mount a campaign at the U.N. to separate economic, social, and cultural rights from the rest of the Covenant.139 In a separate Position Paper prepared in June 1951, which provided guidance to the U.S. delegation to the upcoming thirteenth session of the Economic and Social Council, the State Department again reiterated that if the general view within the Council was that the provisions on economic, social, and cultural rights should be retained, the United States should support that position and avoid attempting “to oppose majority sentiment in ECOSOC.”140 A second recommendation dealt with how the U.S. delegation should make its position known to the Economic and Social Council regarding economic, social, and cultural rights as “rights” (that they are objectives toward which states would strive within their resources) and in terms of their implementation (that the obligations are not immediate but progressive).141 The paper also suggests that in making this statement, the delegation should point out the ways in which the United States works to improve economic and social conditions worldwide and to also point out that the Soviet Union “talks about achievements in these fields but contributes very little to the improvement of economic, social, and cultural conditions in other countries either through the specialized agencies or through the United Nations.”142 In the discussion following the recommendations, the paper points out that any effort to propose splitting the Covenant will “rebound unfavorably” in matters beyond human rights. “Since it appears that even an intensive diplomatic campaign to separate the economic, social and cultural provisions would not be successful and would only create a great deal of ill-­w ill against the United States, it is the recommendation of this paper that the United States simply go along with the majority on this question, without pressing for one side or the other in this matter.”143 The United States should simply restate its position on the differences between the two kinds of rights, which “are [already] acknowledged in the draft Covenant” by virtue of the different procedures for monitoring and enforcement of the two categories of human rights.144

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Chapter 6

Division of the Covenant

The General Assembly . . . ​ Requests the Economic and Social Council to ask the Commission on Human Rights to draft two covenants on human rights, to be submitted simultaneously . . . ​one to contain civil and political rights and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two covenants simultaneously and open them at the same time for signature, the two covenants to contain, in order to emphasize the unity of the aim in view and to ensure respect for an observance of human rights, as many similar provisions as possible, particularly in so far as the reports to be submitted by States on the implementation of those rights are concerned. —­U.N. General Assembly Resolution 543 (VI), February 5, 1952

The story of the Covenants so far has been about the decision to include, and the process of including, economic, social, and cultural rights alongside civil rights in a single, legally binding treaty. The seventh session of the Commission on Human Rights in 1951 devoted nearly all of its time drafting substantive—­yet generally worded—­articles on economic, social, and cultural rights, and a system of self-­reported supervision for the progressive implementation of those rights by states-­parties. Within the same Covenant were very carefully crafted articles on civil rights, with very specific limitations clauses and a procedure for states-­parties to levy complaints against one another alleging violations of those rights, and a quasi-­adversarial process of adjudicating those complaints. We should be reminded of a few key facts about the drafting process as it stood in August 1951, when the Economic and Social Council would take up the question of the Covenant as it then stood. The Council had before it a clearly incomplete draft. It contained two different sets of rights with different monitoring and implementation procedures and different obligations for incorporation into national legal and policy systems. It did not include substantive articles or provisions in a number of areas the General Assembly had instructed the Commission to

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include: a federal-­state article, some language about the principle of self-­determination, and provisions for the extension of the right in the Covenant to non-­self-­governing or trust territories. And there were still no substantive articles on political rights and freedoms. There are other key considerations we should keep in mind as we move through the debates that led to General Assembly Resolution 543 (VI), which directed the Commission to prepare two separate Covenants. First, the “generality” of the wording of the enumerated articles on economic, social, and cultural rights had met with no significant opposition—­the Soviet Union and its allies notwithstanding. All of their highly detailed draft articles on these rights were soundly rejected in the Commission. If one looks carefully at the directive of Resolution 421 (V), the General Assembly instructed the Commission on Human Rights to include “a clear expression of economic, social and cultural rights in a manner which relates them to the civic and political freedoms proclaimed by the draft Covenant” (emphasis mine). At first, this “clear expression” was reflected in proposals for a single article obligating states to take whatever steps were necessary and within their capacity to ensure for their citizens the enjoyment of economic, social, and cultural rights without actually enumerating those rights. Some proposals listed the rights individually within the article. This approach was supplanted by specifically enumerated articles. The French umbrella article was meant to fulfill the directive that the rights be expressed in a manner which relates them to civil rights. Second, nearly every delegation agreed that the articles on civil rights should be as precise as possible, given the obligations states would be required to fulfill. Limitations should be clearly spelled out, since the Covenant anticipated a complaints procedure. No delegation believed the articles on civil rights should be generally worded. Third, the system of reporting for the implementation of economic, social, and cultural rights—­rather than a complaints mechanism—­was never a matter of debate. This was the way the Commission fulfilled another directive contained in Resolution 421 (V) instructing “the Commission on Human Rights to take such steps as are necessary to obtain the co-­operation of other organs of the United Nations and of the specialized agencies in the consideration of such rights.” The self­reporting system seemed the best way to achieve this cooperation. John Humphrey, who drafted the original proposals for a second committee to oversee the reporting process, made that clear in his diaries. The even less-­specific reporting procedure that was actually drafted further confirms this fact. And while there was still no resolution of whether the Human Rights Committee (created to adjudicate complaints regarding civil rights) would have any responsibilities for the articles in Part III of

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the draft Covenant, not a single delegation believed that a violations approach would be appropriate for economic, social, and cultural rights. Indeed, the more important political tensions were between the U.N. system and the independent specialized agencies (like the International Labor Organization) in the drafting of the reporting procedures and the supervisory role the agencies felt was their responsibility to play. The whole point of the reporting procedure as it was drafted was to create a bridge between states-­parties and the specialized agencies through the new Expanded Programme of Technical Assistance, which the United States was instrumental in developing. The reason we need to keep these consideration in mind is to counter our “received wisdom” that the whole process of drafting generally worded articles on economic, social, and cultural rights and the creation of a non-­adversarial system of supervision was part of some nefarious plot by the West to relegate economic, social, and cultural rights to a second-­class treaty with no teeth. Now, while we might be able to say that this was the ex post facto result—­that by the 1970s and beyond, economic, social, and cultural rights were definitively and empirically second-­class by virtue of the original provisions of the International Covenant on Economic, Social and Cultural Rights—­this was not the intention of the drafters. But in 1951 and early 1952, as the question about how to proceed with the draft Covenant got under way, the symbolism of division became a lightning rod for anti-­Western sentiment, especially within the Third Committee of the General Assembly. But it was symbolic. As we shall see, none of the opponents of division advocated, for example, more precise wording of economic, social, and cultural rights or a system of state-­to-­state complaints. Symbolically, it was more important for opponents to attach their desire for more equity in the international system and an emerging anticolonial discourse as part of the question about economic, social, and cultural rights. This new turn emerged in late 1951 in the Third Committee, forming the genesis for what would, by the 1980s, turn into the “Right to Development.”

A Motion to Reconsider As the draft Covenant was still very much a draft and the Commission had not completed all of the tasks assigned to it, the thirteenth session of the Economic and Social Council (which met in late summer of 1951) opened with a procedural debate. John Humphrey believed that the draft should be forwarded to the General Assembly, discussed, and then sent back to the Commission on Human Rights for finalization. He was firmly opposed to the suggestions of some delegations that the General Assembly attempt to redraft the Covenant.1 By late August, Humphrey

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mentioned that the Canadians had been organizing a movement within the Economic and Social Council to send the draft back to the Commission on Human Rights, and that this was a majority position.2 For the first time, Humphrey also discussed his certainty that the Canadians, Belgians, and Americans would move for a reconsideration of the inclusion of economic, social, and cultural rights in the draft Covenant, though he saw this proposal as ill-­conceived—­not on grounds of principle, but on grounds of politics: It is hard to believe that governments can be so short-­sighted in such a matter. If the Covenant does not include articles on economic and social rights it will simply become a target for Soviet propaganda. Moreover, this issue now has symbolic value: the inclusion of economic and social rights in the Covenant is in effect a promise to the under-­developed countries that they will eventually share in all the benefits of modern civilization. As far as the technical objections are concerned – different nature of the various categories of rights, etc. – the answer is, of course, that the Commission’s recommendation really contemplates two Covenants, each with its separate system of implementation; but these two Covenants would be contained in one and the same instrument.3

This passage is significant, for it confirms two major points. The first is that the inclusion of economic, social, and cultural rights was conceived by many—­including Humphrey himself, who should have recognized the complications that would ensue—­a s constituting an interstate guarantee of economic and technical development assistance. While it was not perhaps clear at the time that such munificence would end up coming almost solely from the capitalist-­democratic states (and not from the Soviet Union), the debates up to this point and beyond would clearly point to such an expectation. The second point that Humphrey makes in the passage sheds some light on what he was thinking when he drafted a different implementation and monitoring procedure for economic, social, and cultural rights, which called for periodic reporting rather than a system of state-­to-­state complaints (a violations approach). The idea of two Covenants within one and the same instrument, as odd as it seems, made sense to some who wished to push the West—­and especially the U.K. and the U.S—­to make up their minds4 about the indivisibility and interdependency of human rights, which all States that favored a division of rights claimed to support. As it was, the Economic and Social Council decided that the Covenant should be sent to the General Assembly rather than being returned to the Commission. India, France, Uruguay, the United States, and the United Kingdom introduced a draft resolution5 requesting the General Assembly to reconsider having both sets of rights in a single Covenant, given the state of the draft Covenant as it stood. While the proponents

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of this resolution hoped that the outcome of such reconsideration would be a new General Assembly directive for separate Covenants, that is not what the draft resolution called for; it merely called for reconsideration. Opponents of the resolution were certain that division was precisely what the resolution’s sponsors intended. France, even though it had voted in 1950 to include economic, social, and cultural rights in the draft Covenant and continued to hold that position, still believed that these difficulties and challenges should be discussed in the General Assembly.6 Egypt pointed out that while the Commission considered the different sets of rights to be on equal footing, the differences between them came in application: “economic, social and cultural rights . . . ​which the Commission was far from regarding as fictitious, were certainly recognized as rights, but their application required time, preparation, and financial resources.”7 Belgium pointed out that circumstances had changed since the Council had first suggested the inclusion of economic, social, and cultural rights a year earlier. Since then, Belgium had come to believe that two Covenants should be prepared, provided that they were submitted simultaneously for signature.8 The United States carefully explained its support for the proposed resolution. While the inclusion of economic, social, and cultural rights reflected the aspirations and needs of many countries, those countries most anxious to see them also admitted that these rights differed from civil and political rights, “in that the former were objectives to be attained rather than rights which could be upheld in a court of law. . . . ​ The economic, social, and cultural rights that were spoken of as ‘rights’ were, however, to be treated as objectives towards which States adhering to the Covenant would within their resources undertake to strive, by the creation of conditions which would be conducive to the exercise of private as well as public action, for their progressive achievement.” 9 Chile, Pakistan, the Philippines, and the Soviet Union argued against the draft resolution on several grounds. Pakistan argued that “Islam provided the world with a code treating man as a complete human being in all his activities.”10 Since all rights are fundamental, “if there were two such covenants, there would be two bases and two edifices, and consequently, there would be no unity in regard to human rights. Such unity was essential.”11 Furthermore, the categorization of human rights was merely a matter of convenience: “no right is entirely political or entirely economic; all human rights formed an irreducible and indivisible minimum which should be enjoyed by all human beings.”12 The Soviets argued that the possibility of the separation of human rights was “fundamentally unsound. In the modern world, the two sets of rights were indivisibly linked.”13

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In the end, Economic and Social Council Resolution 384 (XIII) was adopted on a vote of 11-­5 -­2. The section of the resolution calling for reconsideration of General Assembly Resolution 421 (V) was adopted by a vote of 11-­7-­0. Voting in favor were Canada, China, Belgium, France, India, Iran, Peru, Sweden, the U.K., the United States, and Uruguay. Voting against were Chile, Czechoslovakia, Mexico, Pakistan, the Philippines, Poland, and the Soviet Union. So the matter would move to the Third Committee of the General Assembly—­and the rhetoric of indivisibility would begin to grow in intensity.

The Reconsideration Debate in the Third Committee In the General Assembly’s Third Committee, Australia, Belgium, Brazil, Canada, China, Denmark, Greece, India, Israel, Lebanon, Liberia, Netherlands, New Zealand, the United Kingdom, the United States, and Venezuela all supported reconsideration of a single Covenant with both sets of rights included. As Economic and Social Council Resolution 384 (XIII) made clear, the basis for their position was the dual monitoring mechanisms and “the difficulties which may flow from embodying in one Covenant two different kinds of rights and obligations.” In particular, they cited five different criteria underlying these distinctions. First, civil rights were considered to be justiciable and could be implemented by legislation. Second, this kind of implementation could be expected to be fairly immediate, whereas economic, social, and cultural rights were considered to be goals to be achieved progressively and according to the resources available to each country. Third, whereas a system of state-­to-­state complaints, or even measures that would provide an international mechanism for individuals or groups to levy complaints against their government was appropriate for civil rights, it was not appropriate for economic, social, and cultural rights. Fourth, the enumeration of the articles on civil rights in the draft Covenant was quite precise, whereas the content of economic, social, and cultural rights was broad and general. Finally, the drafting of the civil rights in the draft Covenant was completed whereas the articles on economic, social, and cultural rights needed further work. It would therefore be wise to return to the earlier draft of the Covenant (without economic, social, and cultural rights), finalize it, and open it up for ratification immediately. Many of these delegations went to great lengths to make it clear that their advocacy for reconsideration was not based on a belief that economic, social, and cultural rights were less important than civil rights. This was especially true of the United States, which stated that in the case the Covenant were divided it would propose that the two treaties be open for ratification at the same time.14 Belgium pointed out that the

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relationship between the two sets of rights was incontestable and that it was essential that economic, social, and cultural rights be internationally guaranteed.15 Canada referred to the two sets of rights as inseparable.16 For Venezuela, the two sets of rights were “equally important but fundamentally different.”17 The United Kingdom and India minced fewer words over the difficulties inherent in the one-­Covenant solution. The United Kingdom cited the dangers inherent in any treaty that contained loosely drafted language that might make countries very skeptical of adhering to its provisions. The U.K. insisted on the “most careful consideration of the principles involved in the covenant, because it would be a tragedy if it were to remain a dead letter, either because States were unwilling to ratify it or because it was so loosely drafted as to be capable of various interpretations.”18 In its view, the effectiveness of the Covenant would ultimately rest upon the extent to which “its obligations were sufficiently clear to warrant their acceptance as legal obligations.”19 This sentiment was echoed by India, which had of course proposed the reconsideration of Resolution 421 in the Commission. As far as India was concerned, the word “covenant” suggested a treaty solemnly entered into by states. Precision in the language of obligations was therefore crucial: “it was essential that the provisions of a covenant should be expressed in the clearest, most definite, and most unmistakable terms.”20 On this point, the U.K. went further, arguing that economic, social, and cultural rights were not amenable to this kind of treatment: precise language giving rise to legal obligations of states to individuals, created by an agreement between states-­parties to a convention. “The difference lay in the fact that the struggle for political freedom had been begun long before the idea of social security had been conceived, as civil and political liberty must be assured before the full enjoyment of economic, social, and cultural rights became possible.”21 For the U.K., the object of civil and political rights was to achieve personal freedom by limiting the power of the state. On the other hand, the object of economic, social, and cultural rights was to secure personal well-­being by requiring positive action by the State on national scale.22 While the U.K. believed that the Commission should not overlook the possibility of formulating some economic and social rights in such a way as to create legal obligations, a nearly impossible burden had been placed on the Commission, and governments themselves should give more thought to those problems than they had done.23 The issue of the programmatic nature of economic, social, and cultural rights, embedded in the notion of progressive implementation and the specific roles that the specialized agencies of the U.N. were meant to play in their promotion was another point of departure for states fa-

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voring reconsideration. Citing the right to education, the United States argued that “almost half a century had been required to make primary education compulsory in the U.S.”24 Liberia expressed deep concern about any attempt to somehow transform states-­parties’ obligations into something more concrete by attaching immediacy to the implementation of economic, social, and cultural rights, and making obligations more firm. Liberia argued that underdeveloped countries “must not lose sight of the complications liable to result from the inability of governments to enforce laws that entailed obligations which those countries, on account of their limited economic resources, were unable to fulfill. . . . ​The inclusion in a covenant of economic, social and cultural rights could only increase the burden of taxation upon the individual. Furthermore, it was doubtful whether democratic countries would be prepared to invest the State with full economic powers, which would among other things entail the nationalization of all undertakings.” 25 India went further. Arguing that it “had not confused unity with uniformity,”26 the Indian constitution included both kinds of rights but made civil rights justiciable and economic, social, and cultural rights programmatic: “The democratic way of life, as most nations understood it, involved the maximum of respect for individual liberty, and consequently for private initiative. Accordingly, the tradition in many countries had been and still was to entrust considerable responsibility for the great social services essential to the maintenance of cultural and economic rights to the initiative of private agencies. Those who believed in the value of that method would naturally entertain considerable mistrust of a single covenant vesting the supreme authority with respect to those rights in the State.”27 As far as the Netherlands was concerned, opposing viewpoints on this matter were due to disagreements over the relationship between the individual and the community: one says rights of the state should prevail over those of the individual, who had no rights beyond those granted by the state. The other view of human rights was that they were inalienable and “ought to be recognized as sacrosanct, even by the State.”28 Others worried that making economic, social, and cultural rights a matter of legal guarantee might force many countries to reject outright one Covenant containing all human rights. As New Zealand saw it, an individual might have a responsibility to see to his own welfare unless he was unable to do so; but such help was not necessarily best given through the state: “Indeed, many governments were not yet prepared to accept in treaty form the obligation of guaranteeing material rights.” 29 Finally, there was a difference of opinion among countries supporting a division of the Covenant as to whether the two sets of rights were so very different as to create a sort of hierarchy—­that respect for civil

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and political rights was necessary for the creation of conditions whereby economic, social, and cultural rights could be progressively achieved. Lebanon argued repeatedly that the division of the Covenant would not create a de facto hierarchy. In supporting the arguments for division, Lebanon believed there was no reason to talk about a “first” and “second” Covenant. There was no difference in intrinsic value between two Covenants.30 General Debate: Against Reconsideration Twenty-­one delegations actively argued in the Third Committee’s general debate against General Assembly reconsideration of 421 (V).31 Some rejected the request on procedural grounds—­that is, that 421 was legally sound and therefore should not be challenged. Another procedural argument was that since the Commission had not fully complied with 421’s mandate—­the Commission had only completed the task to draft new articles on economic, social, and cultural rights for inclusion in the Covenant—­the General Assembly had nothing to reconsider. A third argument was that if the General Assembly were to reverse itself and vote to divide the Covenant, it would do irreparable harm to the fundamental unity, indivisibility, and interdependence of human rights. Related to this was a contention that economic, social, and cultural rights serve as the basis for civil and political rights; thus to divide them into separate instruments would make the civil and political Covenant baseless. With regard to the issue of delay, some delegations took the opposite view from those who argued for a division—­namely, that dividing the Covenant now would result in a delay in the implementation of economic, social, and cultural rights. Finally, a growing number of countries began to make an impassioned plea that the Covenant not be divided, for there was an insoluble link between economic, social, and cultural rights on the one hand, and the cause of self-­determination and development on the other. The procedural arguments came early in the session of the Third Committee. Yugoslavia—­whose delegation’s proposal to get the General Assembly to mandate the inclusion of economic, social, and cultural rights in the Covenant was adopted the year before—­argued that General Assembly Resolution 421 was both legally sound and had been arrived at after a vigorous debate among the delegations of sixty countries. Yugoslavia took to task this new request coming from the Economic and Social Council, which “narrower in composition, scarcely had the right to attempt to oppose its will in a matter of broad policy,”32 Iraq “deplored the attempt of the Council to secure the reconsideration of an Assembly directive, which had resulted in a waste of valuable time.”33 The Syrian

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delegation argued that a reconsideration of 421 would distort the U.N. Charter: “the hierarchy of the organs constituting the United Nations must be kept in mind and the General Assembly’s instructions must not be questioned.”34 The rhetoric of indivisibility, now deployed to defend the status quo (one Covenant), was cited more frequently and in more forceful terms than the year before. The Soviet European bloc spoke with a single voice in this regard, that any division would be artificial because their “people’s democracies” had already guaranteed or implemented economic, social, and cultural rights immediately.35 Syria argued that by adopting 421, the United Nations had recognized “the completion of a historical development and indicate[d] that all were of equal importance.”36 Division, therefore, would give the impression of an order of importance, a hierarchy between the two sets of rights.37 Iraq concurred that two separate Covenants would mean that the United Nations did not think of both sets of rights as “equally important for human progress.”38 Mexico and Cuba argued that the Covenant—­one Covenant—­would reflect the indivisible whole embodied by the Universal Declaration. As Mexico saw it, “The Universal Declaration of Human Rights also constituted an indivisible whole, which could not be broken up because human rights were interrelated. The Third Committee and the General Assembly would be making a serious mistake if they reversed their decision: they could not establish priorities among rights which were equally important and equally difficult to implement, any more than they could break up the Declaration.”39 For Cuba, the division of rights would weaken the moral authority of the Universal Declaration of Human Rights.40 For Ecuador, civil and political rights were “purely academic” unless accompanied by economic, social, and cultural rights in a single Covenant.41 For Ethiopia, “any attempt to divide human rights into categories was artificial and erroneous, since all human rights were meaningless in themselves and existed only so far as they related to man.”42 Because the Indonesian constitution had included both sets of rights, they form an inseparable whole; if economic, social, and cultural rights were not included in a single Covenant with civil and political rights, “the concept of their interdependence would speedily disappear.”43 A nuance on the indivisibility argument that now emerged and would grow in importance in time was that economic, social, and cultural rights form the basis of civil and political rights. This position was primarily argued by the Soviet and Eastern European bloc44 joined by Iraq,45 Uruguay,46 and Cuba (which argued that economic, social, and cultural rights needed to be given priority over civil and political rights).47 The Soviet bloc also added that the proponents of reconsideration

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had ulterior motives: the West—­and especially the United States—­was engaging in a campaign of subterfuge and sabotage. Czechoslovakia charged the United States with restricting the exercise of all rights “in furtherance of its preparations for war.”48 The Czech delegation cited the machinations of the Un-­A merican Activities Committee of the U.S. House of Representatives and government-­sponsored “explosions of racial hatred.”49 Poland made a similar charge, citing the McCarran and Taft-­Hartley Acts50 as evidence that the United States was clearly not a champion of human rights.51 The most vitriolic attack came from the Byelorussian delegation, which charged that the United States was trying to subordinate economic, social, and cultural rights, and that it and France were engaged in subterfuge. The fact that the Covenant had not included economic, social, and cultural rights the year before “was not an accident, but a trick to prevent the proclamation of economic, social and cultural rights” and the United States was trying to “deprive the working masses of their rights.”52 The Soviet Union concurred.53 Other delegations similarly saw the attempt to have the General Assembly reconsider 421 (V) as part of a broader attempt to considerably delay the implementation of economic, social, and cultural rights. For Ukraine, it was obvious that the purpose of those wishing to divide the Covenant, “even with the proviso of simultaneous signature, was to provide an escape clause for States which had no intention of granting their subjects economic, social and cultural rights.” The primary reason, Ukraine argued, was because those countries were not in a position to devote economic resources for the realization of those rights due to their military expenditures. 54 Cuba argued that the purpose of those supporting division was to rush the U.N. into adopting the civil and political Covenant and to postpone indefinitely a second Covenant on economic, social, and cultural rights. 55 Even with the simultaneous approval of two Covenants, “the danger was that . . . ​the covenant on economic, social and cultural rights might be shelved by many countries indefinitely.”56 Finally, several delegations against reconsideration of 421 began to link the cause of self-­determination to the inclusion of economic, social, and cultural rights in the Covenant, either explicitly or implicitly. The explicit argument that was beginning to form during 1951–­52 was that self-­determination had a definitive economic tone to it, thus a right to self-­determination (over, for example, natural resources as an anticolonial or anti-­imperialist strategy) was intricately linked to economic rights as rights and duties between states. Less explicit was a general revolt of the have-­nots against the haves, or the North versus the South, on nearly every point of detail with regard to the question of one Covenant versus two.

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Saudi Arabia called “wholly erroneous” the claims of the metropolitan Powers that the right to self-­determination was a group right and therefore not appropriate for inclusion in a treaty outlining individual rights: they had already accepted Articles 16(3)57 and 21(3)58 of the Universal Declaration, which were clearly group rights. 59 More to the point, the Saudis linked this rejection of self-­determination directly to the rejection of economic, social, and cultural rights in the Covenant: “In fact, they would not implement such rights so long as their own economic interests were bound up with the possession of dependent territories.”60 Chile offered the following argument linking economic, social, and cultural rights to wider development and anticolonial goals: If the more advanced countries which were opposed to the inclusion of the economic, social and cultural rights were to think of the under-­developed countries, they would modify their attitude. Chile was an under-­developed country, but it was against development brought at the price of poverty of the people. It had no desire for industrialization obtained at the expense of cheap labor, and it would not accept economic progress unless the working class could acquire and retain all the human rights. Hence a covenant containing only the civil rights would mean nothing to Chile: either the people already possessed them, or economic conditions would not allow them to make use of them. It was not right to adopt in 1951 a covenant more suited for 1914.61

Ecuador echoed this sentiment: its delegate stated that his country was “not prepared to purchase economic well-­being at the price of those civil liberties and spiritual values to which it was attached. Economic welfare went beyond the bounds of national responsibility and was a matter in regard to which nations were interdependent.”62 Implicit or general arguments about self-­determination typically linked Western opposition to a robust understanding of that principle to a general antagonism against underdeveloped states. Czechoslovakia, for instance, charged that the right to self-­determination was opposed only by the colonial powers. They claimed that their ally, the Soviet Union, had respected such a right, “whereas some of the nations which had signed the North Atlantic Treaty were prepared to give up their right to self-­determination in favor of a foreign Power.”63 For Byelorussia, “All peoples, whatever their numbers, power or circumstances, had the right to self-­determination and to evolution within the cultural environment suited to them. That principle was stated in the Charter but it was denied by the United States of America, who was seeking to enslave the world.”64 Afghanistan, Syria, and Saudi Arabia in particular were incensed by a statement made in the 361st meeting by the delegate from Belgium, who argued that the right to self-­determination must be approached “objectively and unemotionally.” Belgium argued that some delegations

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“appeared to regard the clause in a negative sense, as a weapon for use against the colonial Powers. Although he sympathized with the aspirations of certain newly-­formed nations, the colonial problem was one of the most important of modern times and could not be treated lightly or disregarded.”65 Many delegations resented being “scolded” by Belgium, which had pointed to the hypocrisy of countries that champion the right to self­determination while more traditional rights were suppressed or ignored all together: “It was essential to draft the provision on the right to self­determination in a positive manner and to render it conditional on the degree of political maturity prevailing in the country concerned.”66 In response, Afghanistan took Belgium to task on its suggestion that unnamed states were submitting proposals that they were not “qualified” to submit.67 Syria did likewise: in the words of its delegation, if some countries “were still the scene of activities incompatible with an international covenant on human rights, it was because, for reasons outside their control and mostly through the fault of foreign Powers, they could not set right the abuses with which they were taxed.”68 As far as Saudi Arabia was concerned, “If blood was flowing in some parts of the world, it was because certain Western Powers were striving to stifle the voices of peoples claiming their freedom.”69 John Humphrey’s diary entries about these debates reveal his growing pessimism—­indeed, cynicism—­about the future of whole human rights enterprise. He blamed the developing countries (especially in the Middle East) for demagoguery and the West for their abdication of leadership: “It may as well be admitted that the whole human rights programme is in great danger. Countries like Afghanistan, Saudi Arabia, Egypt, Syria, and Iraq have already begun like last year to make political capital out of the debate and to use it as a stick for beating the western democracies. These latter can hardly be expected to relish the process. But I still think that the western democracies have themselves largely to blame for what has happened. Had they provided some really dynamic leadership there would have been no vacuum which the little demagogues rushed to fill.”70 He wrote of the “strong political undercurrents” at work, “the Arab states in particular making capital out of the principle of self determination.”71 Humphrey wondered how any such “right” could reasonably fit within “any conceivable system of implementation.”72 On December 21, the Third Committee ended its general debate on the Covenant “after having indulged in one of the worst exchanges between East and West that I have heard. This kind of thing will eventually kill the U.N.”73 Humphrey’s words “between East and West” suggest “between the U.S. and the Soviet Union.” This was only partially true. Under the rules

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of procedure within the Third Committee, delegations have a right to reply to questions, make clarifications of their positions, and respond to accusations made of them by other states during the course of the general debate. While the record shows clearly that (especially) the Communist countries regularly took potshots at the United States and Western European countries, on that particular day, there were several exchanges going on: between the Yugoslavians and the Soviet Union (over the Soviet annexation of Crimea—­clearly a violation of the right to self-­determination); a plea from the Chinese that the Soviet Union in particular stop referring to its delegation as the “Kuomintang clique” (which Czechoslovakia ignored immediately after the Chinese delegate spoke); and finally, exchanges between the United States and the Soviet Union, joined by Ukraine and Byelorussia, over the U.S. contention that the Soviet Union was behind an “iron curtain” effectively shielding what was going on inside the USSR from the world’s gaze. The Communist countries responded with several counteraccusations—­and even suggested that Yugoslavia was somehow in league with the United States in preparation for world war.74 Two Draft Resolutions On January 15, 1952, the Third Committee began to draft resolutions that would determine the fate of the draft Covenant. A resolution sponsored by Chile, Egypt, Pakistan, and Yugoslavia (hereafter “the Chilean draft”),75 acknowledged yet ignored the reconsideration requested by Economic and Social Council Resolution 384 (XIII), instead requesting that the General Assembly reaffirm 421 (V). The delegations of Belgium, India, Lebanon, and the United States jointly introduced an amendment to the Chilean draft.76 The amendment acknowledged Resolution 384 (XIII) (about reconsideration), then replaced the operative clause in the Chilean draft that would have reaffirmed Resolution 421 (V) with the following: “Requests that the Economic and Social Council ask the Commission on Human Rights to draft two covenants on human rights, to be submitted simultaneously for the consideration of the General Assembly at its seventh session, one to contain civil and political rights and the other to contain economic, social and cultural rights, in order that the General Assembly may approve the two covenants simultaneously and open them at the same time for signature.” France proposed a further amendment77 that would add the following to the end of the Belgian amendment above: “the two covenants to contain, in order to emphasize the unity of the aim in view and to ensure respect for an observance of human rights, as many similar provisions

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as possible, particularly insofar as the reports to be submitted by States on the implementation of those rights is concerned.” This addition was meant to convey the relationship between the different sets of rights, thereby recognizing that despite their enumeration in separate instruments, this division was meant to acknowledge the differential nature of state obligations rather than establish a hierarchy or turn economic, social, and cultural rights into second-­class rights. It also resolved the debate about whether the reporting procedure for economic, social, and cultural rights would also be applied to civil and political rights—­a position France had always advocated. This amendment would have that effect. Opposing Division States that opposed division of the Covenant had far more to say about their opposition to the Belgian amendment than they did about their support for reaffirmation of 421 (V). However, some statements were made in support of the status quo. For example, Ethiopia argued that a reversal of 421 (V) would set “a dangerous precedent.”78 Yugoslavia charged that Economic and Social Council Resolution 384 (XIII) was “unwarranted and anti-­democratic.”79 Egypt contended that the Chilean proposal reflected the “desire of the majority” within the United Nations.80 For Pakistan, it reaffirmed a “fundamental truth.”81 For Czechoslovakia, a single Covenant with all rights was “consistent with the course of historical progress” and thus ECOSOC Resolution 384 (XIII) had been “a retrograde step.”82 For Afghanistan, the indivisibility of rights was a corollary of the unity of the human personality. For example, the right to life was equivalent to the right of everyone to make a living: “If economic, social and cultural rights were not adequately protected by the covenant, man would be unable to accomplish his essential tasks and would be deprived of the qualities which made him a citizen. In those circumstances, it would be impossible for him to enjoy civil and political rights.”83 Despite these arguments for one Covenant, most of the Chilean draft’s proponents argued against the Belgian amendment and its intended outcome: division of the Covenant. Mexico and Cuba argued that a division would destroy the moral authority of the Universal Declaration of Human Rights.84 The Soviet bloc argued that separation would place all human rights in jeopardy. “That, incidentally, was what those who favored a division sought to achieve.”85 Byelorussia maintained, “As for economic, social and cultural rights, [proponents of division] would merely talk about them, with the firm intention of withholding them so long as it suited their purpose to do so.”86 Ukraine reminded delegates

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that in the United States and the United Kingdom, civil rights had not been fully achieved, thus “there was no knowing what kind of procedural maneuvers might be used to bury the economic and social rights covenant.”87 Several delegations favoring one Covenant foresaw grave danger for the advancement of development should the document be divided. Saudi Arabia said that it was paradoxical that the most highly developed countries would oppose a single Covenant and that they should remember the times they were living in. Half of the world was suffering privations and such circumstances led to a danger of war and revolution. The Saudi delegate further argued that supplies of raw materials must be increased and prices brought down to raise standards of living.88 Pakistan took this line of thinking a step further: “The arbitrary distribution of human rights between two covenants would mean that the [United Nations] and democracy had failed, and the masses, thus deprived of all economic, social and cultural rights, would inevitably turn to totalitarian regimes, which they would consider were the only ones capable of ensuring to them the enjoyment of those rights.”89 Proponents of separate Covenants pointed to practicalities. When it adopted Resolution 421 (V), the General Assembly had no way of anticipating the problems that would arise during the drafting of the articles on measures of implementation.90 Second, the measures of implementation for economic, social, and cultural rights that were drafted, which anticipated state-­submitted reports rather than any kind of violations­complaints procedure anticipated for civil and political rights, immediately pointed to a need for two Covenants with self-­contained articles. Third, the states supporting the reconsideration proposal maintained that two Covenants would gain wider adherence than would one alone. This was especially true for the United States, Canada, and the U.K., all of which made some indication that they might not be unable to ratify a treaty that contained economic, social, and cultural rights. Lebanon tried to diffuse the tension by seeking some clarity about the nature of rights, the role of the United Nations, and questions relating to development assistance: It seemed at times that the discussions which had been going on for several years did not relate to a covenant imposing legal obligations on the signatory parties, but to a programme of economic, social and cultural assistance, and that certain countries were trying to deprive others of the benefit of that assistance. That paradoxical situation was . . . ​due to a misunderstanding. The under-­developed countries were strenuously arguing for economic, social and cultural rights as if they were trying to obtain them from other countries, whereas in reality it was the business of their own governments to grant those rights to [their own citizens]. Moreover, the countries in favor of two covenants were those in which

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human rights had progressed furthest, and if there were to be any charges of violations of economic, social and cultural human rights, it was those countries which would have grounds for indicting the under-­developed countries.91

At a later meeting, the Lebanese delegate summed up his view of the arguments advanced by opponents of division. He first pointed out that some (the Soviet Union, for example) were opposed to any kind of international implementation measures: “It was consistent for them to support the idea of including all rights in a single covenant, since that would increase the difficulties in the way of the adoption of any covenant and hence of any machinery for international implementation.”92 A second problem arose from an erroneous conception of the legal scope of the Covenant—­that it was to be only a statement of ideal principles. Finally, some delegations had confused the unity of the rights themselves with uniform enforcement. The unity of the rights had been recognized by the Universal Declaration of Human Rights, which had expressly included all rights recognized at the time of its adoption. There was, however, a distinction between the unity of human rights in principle and their separability in practice. . . . ​[A]s regards implementation, they were not inseparable. If the concept of unity in principle was followed to its logical conclusion, the violation of one right would be tantamount to a violation of all, and respect for one would be tantamount to respect for all. Certainly, the civic and political freedoms and the economic, social and cultural rights were interconnected and interdependent, as stated in the preamble to section E of General Assembly Resolution 421 (V); but they were only partially interdependent, and one of those types of rights could be enjoyed without enjoying the other. It was therefore possible that some governments, while recognizing all the rights proclaimed in the Universal Declaration of Human Rights, would not yet be in a position to enter into an international commitment to enforce all those rights at one and the same time.93

The rules of procedure in the Third Committee meant that the voting would proceed from the most recent amendments backward to the original draft. The French amendment to the Belgian proposal was adopted 26-­24-­8.94 The vote on the Belgian proposal, as amended, was adopted 28-­23-­7.95 The final vote on the Chilean proposal, as amended by France and Belgium, was taken by roll call. It was adopted 29-­21-­6.96 Two weeks later, the resolution would be debated in the plenary of the General Assembly. Humphrey attributed the vote for two Covenants to strong U.S. pressure.97 Many scholarly accounts about the division of the Covenant cite this sort of observation as evidence that the United States was fundamentally opposed to economic and social rights. The historical record suggests, however, that the U.S. delegation was continually instructed to follow prevailing sentiments in the Third Committee, which as we have

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seen (and will see again in the General Assembly itself), was becoming very heated. In late 1951, the State Department issued a new set of instructions to the U.S. delegation. The prediction earlier that it was unlikely that there would be any support for the separation of the Covenant began to change after the Economic and Social Council successfully passed Resolution 384 (XIII). Most likely sensing a policy opening, the Position Paper dated September 28, 1951, suggested one of two courses of action for the U.S. delegation. The first instructed it to propose two Covenants should it find majority sentiment for that position. The second position assumed that 421 (V) would be reaffirmed and the General Assembly would send the draft Covenant back to the Commission for further work in anticipation of a final vote by the General Assembly in 1952. In that case, the United States was to suggest that the General Assembly defer its decision and request the Commission to prepare three instruments for consideration by the Assembly in 1952: an instrument with all the rights; one with just civil and political rights; and one with just economic, social, and cultural rights. “The Assembly would at its 1952 session then decide whether all these rights should be in one or two instruments, accepting either the pattern of the first instrument or the pattern of the second and third instruments.” 98 Should either of these two alternatives fail, the Position Paper recommended a return to the original stance from earlier in the year: “the United States Delegation should not oppose but should vote for the inclusion of economic, social and cultural rights in a single Covenant.” 99 Later, on October 2, a restricted memo was sent from the Secretary of State to the U.S. ambassador to the United Nations, asking him to consider sharing the U.S. view (as stated in the final Position Paper, which was forwarded with the memo) with the British, French, Canadian, and Australian delegations. Finally, at a meeting of the U.S. delegation to the General Assembly in November of 1951, Eleanor Roosevelt provided some background and explained the U.S. position to forty-­seven members of the delegation, including the Secretary of State. Interestingly enough, one person asked Roosevelt why the United States would vote for a single Covenant “when we did not think it was right and when we did not believe in it?” Roosevelt responded, “We should not again be completely against a large majority. We should show that we were not trying to dictate and that we would go along, provided it was very clearly understood just what our position was. The Department felt that it would hurt the US more to be adamant when it would obviously lose anyway, than to go along with the majority and let them know of our objections. We should have to gauge the temper of the majority at the time the matter came up for a vote, and at that time decide whether to abstain or vote in favor.”100

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If Humphrey was correct, why would the United States be pushing a policy that clearly was so objectionable to nearly half of the Third Committee? It is possible that what he meant by “pressure” was that the United States was trying to keep its allies in line and not argue against the Chilean proposal, but for the Belgian proposal. At any rate, in his diary Humphrey called the decision for two Covenants “a step backward notwithstanding the lack of sincerity on the part of most of the governments which advocated the opposite course.”101 He called the controversy and decision “largely ideological” but did not elaborate. However, the last entry he made about this session of the Third Committee provides a little insight. On January 22, Humphrey mentioned a series of crises provoked by the Arab states to prevent orderly debate in the Committee. Lamenting the fact that the Third Committee had become highly politicized, he wrote, “The Arab states with their allies are now interested in scoring an immediate victory against the have-­States. This is why they want a clause on self-­determination in the Covenant. That in the process they may sabotage the whole business is to them a matter of the most complete indifference.”102

General Assembly Resolution 543 (VI) On February 4, 1952, the delegation of Chile delivered the report of the Third Committee to the General Assembly. Chile noted that the Committee had only reached its decision to recommend two Covenants by a narrow majority. “This is the last stage of a procedure begun some years ago by those opposed in principle to the inclusion of economic, social and cultural rights in a covenant on human rights.”103 (It is worth noting that Chile referred to “a” Covenant—­not “the” Covenant). Chile argued that during the early stages of drafting in the Commission, “some reason or other was always advanced for not undertaking a study of these rights” (an argument that is not supported by the evidence), yet the General Assembly in its fifth session had given an “unambiguous answer” to the question about whether economic, social, and cultural rights should be included in the Covenant. 104 Again, Chile’s principal objections to splitting the Covenant was because it must conform to the principles of the U.N. Charter and the Universal Declaration of Human Rights, and that under the auspices of the U.N. it would not be permissible to break up the Declaration, “which would be equivalent to dismembering the concept of human dignity as consecrated in the Charter and the Universal Declaration of Human Rights.”105 On the relationship between economic, social, and cultural rights and broader goals of economic development, Chile wondered, “If, we venture to ask, the high standard of living in the industrial countries does not

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depend on a low standard of living in other countries, why do the former seem to oppose the aspirations of the latter?”106 Furthermore, the middle ground between a wholly capitalist and a noncapitalist view of these matters arose out of the U.N. Charter itself: “the dignity and worth of the human person, in both a political and an economic sense.”107 The Chilean delegate argued also that splitting the Covenant would delay implementation of the economic, social, and cultural Covenant “for want of signatures and ratifications, while the other covenant would enter into force. It will then be said that capitalist countries are not interested in ensuring economic and social rights and that they are proclaiming a concept of liberty that cannot be achieved in a society that is economically exploited.”108 Finally, and interestingly enough, given the tenor of some of the arguments by countries opposed to division, Chile admitted that the main argument posed by countries opposed to a single Covenant was based on issues surrounding implementation of two different sets of rights.109 Belgium reinforced that very claim and reiterated that those who favored division were not trying to evade the international protection of economic and social rights.110 Eleanor Roosevelt noted that the Third Committee had devoted almost two months to this question and made a decision. She added that she had “heard these arguments over and over again since 1946” and that there was no merit in the argument that splitting the Covenant would place economic, social, and cultural rights in a secondary position vis-­à-­v is civil rights. She rejected the Chilean argument that the supporters of two Covenants were not interested in the economic and social progress of other countries, citing the wide scope of participation by the United States in U.N. economic and social affairs.111 India reminded the Chilean delegation that the draft resolution was not about “maintaining a ‘conquest,’”112 but based on a sincere desire to come to an understanding about a difficult and complicated problem, and that those who supported two Covenants could hardly be accused of being indifferent to economic, social, and cultural rights: Our main preoccupation has been precisely the creating of a social order in which justice shall reign, in which inequalities shall be smoothed out and in which backward sections will have a reasonable opportunity for instruction and a decent social and economic position. . . . ​according to our way of looking at life and liberty and society, it is by the exercise of these civil, political and individual fundamental rights that the improvement of social, cultural and economic standards can take place. Here is a question of a difference of approach which is part of the spirit and content’ of our constitution. We look upon the first as justiciable rights and the other as principles of policy.113

As far as India was concerned, what is necessary for the realization of economic, social, and cultural rights was a great deal more than mere

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governmental and official action. They require a certain amount of “love and ardour and zeal” for the goal of social betterment. “If that is lacking, mechanical attempts at enforcement though a pact will not succeed. . . . ​No international agreement is required to inspire us and push us to give these enduring, preserving, generous, and wholehearted services to our people.”114 The delegate added that the state is not the exclusive, but rather the most important, agent for securing economic, social, and cultural rights.115 The Soviet-­led communist bloc was characteristically cantankerous. Czechoslovakia said the draft resolution contained a “serious contradiction” by acknowledging the wisdom of General Assembly Resolution 421 (V), followed by a “surprising and totally illogical volte face and finally a conclusion is reached which absolutely contradicts all that is said in the preamble.”116 As far as the Czech delegate was concerned, the only and true reason for this illogical divorce and for all these tensions “is the policy of ‘cold war’ and of preparation for aggression pursued by certain States. That policy, which is veiled hypocritically by the defence of the allegedly classic political rights and freedoms, is directed against all social progress, against the aspirations and efforts of millions of ordinary men and women who are claiming respect for their rights and for human dignity.”117 The French position had changed since 1950. They reiterated that they would have supported one Covenant “if that had been shown to be more practical.”118 France also defended the original sponsors of the two Covenant idea, Lebanon and India, neither of which could “be suspected here of colonialism, imperialism or capitalism.”119 The French delegate reminded the General Assembly that the Covenant was not the Universal Declaration, but rather an instrument to enforce the provisions of the Declaration. On the issue of self-­determination, France supported the idea of reaffirming the Charter’s commitment to that goal, but “we should like to warn our fellow delegations against . . . ​the insertion in a covenant on human rights of a provision which concerns purely collective rights.”120 In their view, the Charter was balanced between the idea of individual human rights and the rights of peoples, and the U.N. should not upset that balance by making self-­determination a legally binding right.121 The Soviets were persistent. In their view, the aim of the draft resolution before the General Assembly was to “secure an uncalled for reconsideration” of Resolution 421.122 All human rights, according to that resolution, were interconnected and interdependent, yet the United States and the United Kingdom had always opposed the inclusion of economic, social, and cultural rights in the Covenant. In contrast, the Soviets were “the champions of the interests of the vast majority of the

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population of all the countries of the world.”123 Because the Soviet constitution guaranteed economic, social, and cultural rights, and that those were the basis of all human rights, a separate Covenant on civil and political rights would be “a meaningless declaration, designed only to deceive the popular masses.”124 The Soviet delegate reminded the General Assembly that, of course, in the Soviet Union and the other “people’s democracies” the “exploitation of man by man has been done away with.”125 Saudi Arabia echoed the Soviet claim that all human rights were interconnected and interdependent and their division in separate Covenants would be artificial and arbitrary. The Saudi delegate spoke of the dire circumstances of millions of people around the world, and that instead of taking bold measures, the highly developed countries spoke of evolutionary progress and counseled patience. Human rights were “an indivisible whole,” and splitting that indivisibility would result in a “human explosion in the world, in other words a revolution, it takes a dictator to stem it.”126 This would inevitably lead to war, and the subsequent suspension of civil and political rights. “The indigenous people seething with unrest will no longer be beguiled by empty promises but may revolt, they may fight, and they may die fighting.”127 Egypt added that they had the impression that the Great Powers especially are “haunted by the fear of seeing the covenant on human rights completed and open for signature and ratification.”128 Ultimately, the draft resolution was adopted 27-­20-­3, becoming General Assembly Resolution 543 (VI).129 It appears that eight countries did not vote.130 The Commission finished preparing both Covenants in 1954, which were then submitted to the Third Committee of the General Assembly. The Soviets tried in 1953 and 1954 to have the General Assembly reverse Resolution 543 (VI), to no avail. The Commission did finally include an article on political rights in the ICCPR, drafted by Yugoslavia, France, Chile, and Uruguay.131 In 1953, the new Eisenhower administration shifted course dramatically on the question of human rights, essentially abandoning any substantive work on the Covenants. The administration also announced that the United States would not sign or ratify any human rights agreements. For the next twelve years, the Third Committee would undertake a painstaking, article-­by-­article analysis of the Covenants, and finally send them to the General Assembly in 1966. It would take another ten years before the Covenants would gain the necessary ratifications to come into force, in 1976.

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From One to Two Covenants There is no doubt that the Cold War played a role in the controversies surrounding the Covenant generally, and the nature and disposition of economic, social, and cultural rights in particular. One observer points out that “the Human Rights Commission was an important theatre of the Cold War, and Roosevelt, encouraged by her ever-­present aides, exploited her position as chairwoman in order to pursue the anti-­Soviet line.”132 Several other observers note generally the ways in which the antagonism between the United States and the Soviet Union poisoned many of the proceedings on human rights. Nevertheless, what is patently untrue is the simplistic assumption that the debates about one or two Covenants were primarily, or solely, the result of clashing ideologies on human rights. More important was the attachment of economic, social, and cultural rights to broader political goals within the U.N. system, most notably the causes of self-­determination and economic development. The debates over state obligations and monitoring highlight the importance of this factor clearly. Even while constantly evoking the rhetoric of indivisible rights, nearly every delegation supporting a single Covenant (with the exception of the USSR and its satellites) recognized and acknowledged that civil and political rights and economic, social, and cultural rights were different in nature, that state obligations for promoting those rights were different, and that procedures for monitoring and enforcement should reflect these differences. Not a single developing state wanted to see a complaints procedure applied to economic, social, and cultural rights, for they would have borne the brunt of extensive complaints—­especially had their suggestion that the complaint mechanism be extended to individuals and groups been accepted at the time. We should keep in mind that while there was considerable debate over one or two Covenants, there was very little opposition to the very general enumeration of economic, social, and cultural rights. Every drafting proposal made by the Soviet Union and Yugoslavia to include highly detailed drafts of these rights was soundly and consistently defeated in the Commission and the Third Committee of the General Assembly. In fact, only the greatest skeptic of economic, social, and cultural rights—­ the United Kingdom—­specifically proposed that the Commission on Human Rights consider drafting economic, social, and cultural rights in a manner to make them justiciable. None of the delegations from the developing world favored such a proposal. It seems quite clear to me that those nations in favor of a single Covenant with economic, social, and cultural rights included in it were hop-

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ing that it would create international legal obligations for developed countries to provide development assistance to developing states in order to help them meet their human rights obligations. This obligation of developed countries, of course, would mean that developing countries could claim development assistance as their right. If this conclusion is correct, the great advances in securing the recognition of economic, social, and cultural rights in “fundamental unity” with civil and political rights, as individual rights, was now being subject to significant revision, with the rhetoric of indivisibility now deployed in aid of that revision. The deepening of this rhetoric in the 1950s, 1960s, and 1970s is the subject of Chapters 7 and 8.

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Chapter 7

Indivisibility as Postcolonial Revisionism: 1952–­1968

Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound national and international policies of economic and social development —­Proclamation of Teheran, May 13, 1968

The adoption of General Assembly Resolution 543 (VI) in 1952 closed a very important chapter in the history of human rights in the United Nations. The debates surrounding the manner in which the principles of the Universal Declaration of Human Rights would be translated into the legally binding obligations of states revealed in many ways how different countries viewed the role of rights within their particular systems of governance and cast a bright light on differing opinions and views concerning the institutions that are necessary to realize these rights. The intervening twenty-­six years between 1952 and the entry into force of the two Covenants in 1976 were marked by a slow-­moving yet ultimately dramatic revisionism within the United Nations about the concept of human rights, as the ranks of the organization swelled with new members—­the majority of which were postcolonial, developing states. In 1952, fifty-­nine states were members of the United Nations. By the time the first International Conference on Human Rights convened in 1968, the number had grown to 115. Today U.N. membership stands at 192. The seeds of this revisionism were sown during the debates over the relationships between the two grand categories of human rights from 1948 to 1952, when interstate claims to development resources were first linked to the inclusion of economic, social, and cultural rights in a

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single, binding human rights Covenant. The right to self-­determination became a centerpiece of this revisionism, to be joined later by other demands of newly postcolonial states and states still under colonial forms of rule. The absence of legally binding norms—­the Covenants—­meant that additional rhetorical weight would be accorded to the indivisibility of the Universal Declaration of Human Rights, and especially the duties embedded in its Article 29. This new rhetoric of indivisibility, however, was not in reference to the organic unity between the two categories of rights in the Declaration. Instead, it was a revisionist reconceptualization and prioritization of economic, social, and cultural rights. The object of human rights eventually became synonymous with the emerging Third World’s concerns over ending colonialism and colonialist practices, confronting racism in general and apartheid in particular, confronting imperialism and the unjust economic order, and a host of other challenges. The hallmark of this postcolonial revisionism was evident as human rights went from being a framework for thinking about how human freedom can be advanced through appropriate relationships between governments and their citizens to a framework for demanding global economic justice. We will recall that during the debates over the division of the Covenant, several developing states accused the West of attempting to sabotage economic, social, and cultural rights because, in doing so, they would effectively be denying developing countries’ rights to economic resources for their development (see Chapters 5 and 6). While no longer attached specifically to the fact of the Covenant’s division, postcolonial causes became synonymous with the advancement of human rights. The view that human rights are held by individuals and that the Covenants create obligations between governments and those individuals would not return to the U.N.’s rhetorical landscape in any significant way until after the World Conference on Human Rights, held in Vienna in 1993. Nevertheless, elements of the attachment of human rights to the broader cause of development persist to this day and are deeply embedded within the contemporary discourse of indivisible human rights. This chapter looks broadly at developments in the United Nations’ approach to human rights between 1954 and 1968. As work on the Covenants moved slowly in the General Assembly’s Third Committee, the General Assembly began to bring other issues under the umbrella of human rights, starting with debates over how to include a right to self-­determination in both Covenants. In the 1950s and 1960s, the U.N. sought to address human rights problems in the developing world by demanding an immediate end to colonialism, the adoption of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and confronting the policies of apartheid in Southern Africa.

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The International Conference on Human Rights, held in Teheran in 1968, would further prioritize these movements under the umbrella of human rights, as well as reflect a growing movement to link human rights (especially economic, social, and cultural rights) to development and achieving global economic justice. Chapter 8 picks up the story in the 1970s, when these aspirations would become demands, starting with the New International Economic Order of 1974 and 1975. By 1977, this human rights revisionism was finally made official U.N. doctrine by virtue of the adoption of General Assembly Resolution 32/130.

The Covenants Languish In 1954, the Commission on Human Rights finished its work on the draft Covenants, and forwarded them along with several draft resolutions to the eighteenth session of the Economic and Social Council. Because the question over one or two Covenants had consumed the United Nations during the preceding four years, there were other, related issues that had not yet been resolved, including whether to include an article on self-­determination (although one had been drafted and inserted, identically, into both draft Covenants), the applicability of the Covenants to federal states, the applicability of the Covenants to non-­self-­governing territories, and how the issue of reservations to the Covenants would be handled.1 After a year of discussions throughout the U.N. system about how to proceed, the General Assembly’s Third Committee finally received all the draft materials in 1955 and began an eleven-­year process of finalizing the Covenants. Most of the general debate in 1955 revolved around the deficiencies of the drafts at hand, including the problem issues mentioned earlier.2 Other problems that came up during the session were the absence of an enumerated right to property and to the enjoyment of the fruits of creative activity, and the prohibition of propaganda for war or international or interracial discord.3 While the wisdom of the decision to draft separate Covenants was discussed, more attention was paid to the rather dramatic shift in U.S. human rights policy under the new Eisenhower administration: that the United States would not sign or ratify either treaty, its view being that “in the current international atmosphere the use of treaties to promote respect for human rights seemed unproductive.”4 There was also a debate over the level of specificity of the articles in both Covenants, and “whether it was more desirable to prepare drafts which, since they would be the least common denominator, could be accepted by all states or whether the drafts should be expressions of an absolute and perfect system of rights and controls even if the chances of ratification were drastically reduced.”5 Several amendments to the draft

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Covenants were proposed, but in the end, no action was taken during the session. The Problem of Self-­Determination The difficulties over the question of whether and how to include an article or some other expression of a right to self-­determination—­which began in 1950—­commanded nearly all of the Third Committee’s attention during its tenth session in 1956. A report by the U.N. Secretary­G eneral noted that the drafting of the Covenants had reached a political impasse over this question. The report recommended the creation of an ad hoc working group to reach agreement on certain basic principles about self-­determination and perhaps to prepare a separate draft declaration on that right for consideration by the General Assembly. This proposal encountered opposition from the majority of the Third Committee’s delegations, which felt that that self-­determination needed to be embodied as a right in a legally binding instrument. Before moving to a decision on self-­determination, the Committee finally agreed to a procedure for consideration of the draft Covenants. They would begin first with the preambles of both Covenants and the operative clauses common (or similar) within each, and then move to discussing the remaining articles in both Covenants, starting with the International Covenant on Economic, Social and Cultural Rights.6 The preambles were discussed during the 637th to 640th meetings and were considered acceptable to most delegations.7 A proposal sponsored by Brazil, Saudi Arabia, and Afghanistan to mention self-­determination in the preambles was debated, then withdrawn, as a decision had already been taken to include it as an enumerated right (even though the Committee had not yet debated the article drafted by the Commission on Human Rights) and no particular right should appear in the preamble.8 No fewer than twenty-­six meetings were devoted to the article on self­determination.9 Debate surrounded questions about how limited the Covenants should be to be effective; that self-­determination was already mentioned in the U.N. Charter, and therefore putting it into the Covenants would be redundant;10 that Chapters XI and XII of the Charter called for “the gradual rather than immediate realization of independence or self-­government for trust and non-­self-­governing territories, whereas the provisions of the Covenant on Civil and Political Rights envisioned immediate enforcement;11 and whether self-­determination was a principle or a right, and if it were the latter, whether that right was a collective or an individual right.12 A number of proposals to reconcile these opposing views were put

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forward during the discussion including establishing a special committee to study the matter; creating a draft declaration; drafting a protocol for attachment to the present Covenants; and preparing a third Covenant, perhaps by a special international conference. After a flurry of proposals and amendments to the draft of the article’s wording, the Committee finally voted 35-­13-­10 to establish a working party to consider Article 1.13 The 1954 draft of the Covenants included the following article on the right to self-­determination: All peoples and all nations shall have the right of self-­determination, namely, the right freely to determine their political, economic, social and cultural status. All States, including those having responsibility for the administration of Non-­Self-­G overning and Trust Territories and those controlling in whatsoever manner the exercise of that right by another people, shall promote the realization of that right in all their territories, and shall respect the maintenance of that right in other States, in conformity with the provisions of the United Nations Charter. The right of the peoples to self-­determination shall also include permanent sovereignty over their natural wealth and resources. In no case may a people be deprived of its own means of subsistence on the groun\ds of any rights that may be claimed by other States.

After six meetings, the working party had redrafted the article, dropping the phrase “and all nations” from paragraph 1, and changing the word “status” to “development.” Paragraph 3 became paragraph 2, with the reference to “permanent sovereignty” giving way to the more specific and less controversial clause, “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-­operation, based upon the principle of mutual benefit, and international law.” The second sentence was replaced with, “In no case may a people be deprived of its own means of subsistence.” After several final amendments to the entire article were proposed and defeated, the Third Committee voted on the article in parts, and the whole was adopted at the 676th meeting, 33-­12-­13.14 The Third Committee completed drafting the substantive articles of the International Covenant on Economic, Social and Cultural Rights during its eleventh and twelfth sessions in 1956 and 1957.15 From 1958 to 1961, the Committee finalized the substantive articles of the International Covenant on Civil and Political Rights and reported on its completion at the 1075th plenary meeting of the General Assembly.16 The Committee then returned to Article 2 of the ICESCR at its seventeenth session in 1962; the article was adopted after a great deal of discussion.17

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The remainder of Section II of the Covenant (Articles 3, 4, and 5) was subsequently adopted with minimal discussion.18 In 1963 the Committee turned, finally, to the reporting procedures outlined in Section IV of the Covenant, which it finalized in 1966. The drafts were transmitted to Member-­States and U.N. specialized agencies for final comments in 1964 and 1965. The final touches were put on the drafts during the twenty-­first session of the General Assembly, and both Covenants were finally adopted and open for signature and ratification by General Assembly Resolution 2200 (XXI) on December 16, 1966.

Other Activity on Human Rights within the General Assembly While the Covenants were tied up in the Third Committee and the General Assembly, most of the resolutions on human rights that were adopted by the General Assembly in the 1950s simply urged the Third Committee to devote “as much time as possible” to the completion of the Covenants.19 Following the lead of the United States, which urged the U.N. take alternative, non-­treaty-­based approaches to human rights, in 1955 the General Assembly passed Resolution 926 (X) consolidating under a single agenda item a number of advisory services: programs on women’s rights, the eradication of discrimination and the protection of minorities, and the promotion of freedom of information.20 Added to these was the new program on human rights generally, and all were now consolidated as “Advisory services in the field of human rights.” These resolutions provided U.N. support for the hiring of human rights experts to conduct studies and make recommendations (predecessor of the system of Special Rapporteurs that began to emerge in the 1970s), to support fellowships and scholarships, and to hold seminars on a variety of human rights topics. The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples The year 1960 was a watershed for membership in the United Nations, as seventeen new states were admitted—­all but one from Africa. According to one observer at the time, “in the hierarchy of priorities of the new nations no issue exceeds in importance their commitment to securing a speedy and complete end of Western colonialism.”21 The Soviets quickly jumped at the chance to rally support for a resolution that would stir up anticolonial and anti-­Western sentiments among the ranks of the Third World, by demanding the end of colonial rule. During the fifteenth session of the General Assembly in 1960, the Soviets introduced a draft resolution that “stridently proclaimed that in the colonial territories

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‘the swash of the overseer’s lash is heard; their heads fall under the executioner’s axe.’”22 But a contingent of Asian and African states cobbled together their own, less polemical resolution, borrowing principled language adopted by previous Asian-­A frican conferences at Bandung, Accra, and Addis Ababa.23 Eventually the Soviet version was defeated. The Asian-­A frican draft Declaration on the Granting of Independence to Colonial Countries and Peoples was adopted as General Assembly Resolution 1514 (XV) by a roll call vote of 89-­0 -­9.24 Among the interesting elements of the Preamble of the Declaration—­ which would become more important in subsequent years—­is the statement that “the process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith” (emphasis mine). Article 1 of the Declaration states: “The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-­operation.” Article 2, on self-­determination, is taken verbatim from both Covenants. Article 3 declares that “Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.” The following year, the General Assembly established a special committee on colonialism to implement the terms of the Declaration.25 Its first and perhaps most important case (especially in terms of where the U.N.’s agenda on human rights was headed) was the situation in Rhodesia. As David Kay noted in 1967, “for the new nations the traditional concern of the United Nations with human rights has been but another vehicle for advancing their attack on colonialism and associated forms of racial discrimination.”26 This new approach to human rights was articulated in General Assembly Resolution 1776 (XVII), adopted in 1962. The preamble of the resolution mentions the Independence Declaration and asks the Economic and Social Council “to study and encourage the adoption of measures designed to accelerate the promotion of respect for human rights and fundamental freedoms and to devote special attention to this matter during the United Nations Development Decade.” In addition, the General Assembly adopted a resolution sponsored by thirty-­four states, requesting that the Commission on Human Rights prepare a draft declaration and convention on the elimination of all forms of racial discrimination.27 The blazing speed with which the United Nations drafted and adopted both a Declaration (1963) and a Convention (1965) on the elimination of racial discrimination was remarkable. The United Nations

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Declaration on the Elimination of All Forms of Racial Discrimination28 was adopted in 1963, followed very shortly by a resolution directing the Commission on Human Rights to immediately begin working on a binding convention on the elimination of racial discrimination.29 The General Assembly also declared 1968 to be the “International Year for Human Rights,”30 thus beginning the process that would culminate in the first international conference on human rights to coincide with the twentieth anniversary of the Universal Declaration of Human Rights. The 1968 International Conference on Human Rights: Setting the Stage In its first substantive resolution since the decision to divide the Covenant, in November 1965 the General Assembly adopted Resolution 2027 (XX) as a follow-­on to Resolution 1776 (XVII). The resolution’s preamble added the Declaration on Racial Discrimination and the Declaration on the Granting of Independence alongside the Charter and the Universal Declaration of Human Rights as “foundational.”31 But the resolution brought additional issues and concerns under the umbrella of human rights. The first substantive point in the resolution urged the United Nations to include human rights as an essential part of plans for economic and social development tied to the Second Development Decade. Point four recommended that the Economic and Social Council “should, in studying the question of transferring the resources released as a result of disarmament, bear in mind the economic needs of all countries, particularly of the less developed countries, in order to help them to achieve the safeguarding of human rights and fundamental freedoms.” The final 1965 resolution, which set the stage—­and the agenda—­for the upcoming human rights conference, was General Assembly Resolution 2081 (XX), entitled International Year for Human Rights. This seventeen-­paragraph resolution begins by reiterating the importance of the Independence Declaration and the Declaration on Racial Discrimination, but also stated that the “Universal Declaration of Human Rights has been an instrument of the highest importance for the protection and promotion of the rights of individuals and the furtherance of peace and stability,” and that “its role in the future will be of equal significance.” The resolution also noted that “racial discrimination, and particularly the policy of apartheid, constitutes one of the most flagrant abuses of human rights and fundamental freedoms and that persistent and intense efforts must be made to secure its abandonment.” Resolution 2081 established a preparatory committee of seventeen Member States,32 to draft an agenda for the conference, based on the following priorities:

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(a) To review the progress which has been made in the field of human rights since the adoption of the Universal Declaration of Human Rights; (b) To evaluate the effectiveness of the methods used by the United Nations in the field of human rights, especially with respect to the elimination of all forms of racial discrimination and the practice of the policy of apartheid; (c) To formulate and prepare a programme of further measures to be taken subsequent to the celebrations of the International Year for Human Rights. The next day, the General Assembly, in Resolution 2106 (XX), adopted the International Convention on the Elimination of All Forms of Racial Discrimination. As Henkin observed in 1965, “Human rights [were] being used as a political weapon against colonialism or economic imperialism, not to enhance the rights of all persons against all governments.”33 Another observer noted, however, that the enthusiasm over the Convention on Racial Discrimination actually created a strong wake that shook the Covenants out of the procedural morass that had kept them from moving into the General Assembly for adoption. The Convention “was one of the motives which led the General Assembly to finish the work on the Covenants the following year. In order that the momentum not be lost, the General Assembly abstained from another formal consultation of governments and for a revision of the texts . . . ​ which would have made further delay necessary.”34

The Teheran Conference Compared to the “sequel” (the 1993 World Conference on Human Rights), very little has been written about the Teheran Conference,35 which met in April and May of 1968. Most accounts focus solely on the Final Act adopted at the Conference, which included a statement of principles as well as twenty-­nine resolutions. Drew Middleton of the New York Times published three articles during the first week of the conference, two of them focusing on the prickly controversies generated by the previous year’s war in the Middle East.36 As far as the Covenants were concerned, very little of substance happened in Teheran; the focus was elsewhere. The Final Act represented a significant moment in the expansion of human rights to cover nearly everything of concern to the Global South: apartheid and racial discrimination, anticolonialism, armed conflict, and the situation in the Middle East following the 1967 Arab-­Israeli War. A number of other resolutions adopted at the conference also addressed minor human rights topics (such as the human rights education of youth).

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After Teheran, the number and length of General Assembly resolutions on human rights, including references to all of these concerns, would begin to proliferate, culminating in the landmark Resolution 32/130 of 1977, which would codify the revisionist approach to human rights that was first articulated as official U.N. rhetoric at Teheran. Agenda item 9 covered the core of the Conference’s agenda: to review the progress achieved and identify the major obstacles to respect for human rights since 1948. Agenda item 10 directed the Conference to evaluate the “effectiveness of methods and techniques employed in the field of human rights at the international and regional levels,” including international instruments (conventions, declarations, and recommendations), implementation machinery and procedures, educational measures, and organizational and institutional arrangements.37 Agenda item 11 directed the Conference to prepare a postconference program for the United Nations in the field of human rights, specifically to include the following: 1. the elimination of racial discrimination and the policy of apartheid in particular; 2. self-­determination and the speedy granting of independence of colonial countries and peoples; 3. the question of slavery and the slave trade, including the slavery­like practices of apartheid and colonialism; 4. measures to promote the rights of women; 5 measures to strengthen the defense of the human rights and freedoms of individuals; 6. effective international implementation mechanisms; 7. other measures. A separate agenda item (12) called for measures to respect and implement human rights in occupied territories—­clearly a reference to Palestine. Agenda items 9, 10, and 12 were considered in the conference’s plenary sessions. The first three parts of item 11 were assigned to the Conference’s First Committee; the last four were considered by the Second Committee.38 The summary records of the Conference’s proceedings reveal the deep political tensions of the time. Several delegations spent the first three days of the Conference expressing outrage at the seating of representatives from the Republic of China, South Vietnam, the Federal Republic of Germany, and the Republic of Korea, with the USSR customarily firing the first rounds. During the general discussion on agenda item 9, “Review of progress achieved and obstacles encountered” in the promotion of human rights, the Philippine delegation noted the “present

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racist policies” of some governments as a primary failure of national implementation of human rights.39 The Chairman of the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Counties and Peoples stated forcefully that “the continuation of colonial rule and the practice of apartheid, as well as all other forms of racial discrimination, threatened international peace and constituted a crime against humanity.”40 The Iranian government cited the existence of racism (especially apartheid) and hunger and disease in the developing world (as opposed to the wealth and technology of the developed world) as major obstacles. The solution, therefore, was in addressing underdevelopment: “the promotion of human rights was directly related to economic and social progress.”41 This sentiment would find its way into the final Proclamation of the Conference, which Iran authored. An accounting of the subjects addressed by the twenty-­nine resolutions adopted at the Conference conveys a strong sense of postcolonial priorities under the umbrella of human rights. Seven dealt with the issue of racial discrimination and apartheid.42 Economic and social issues were addressed in eight resolutions.43 The balance dealt with self­determination and decolonization, armed conflicts, disarmament, legal aid, science and technology and human rights, and a variety of procedural issues. Only one resolution—­number XIV—­dealt with a specific civil right (of detained persons). Two Teheran Resolutions: A Closer Look A close examination of Teheran resolutions XVII (Economic Development and Human Rights)44 and XXI (Realization of Economic, Social and Cultural Rights)45 helps us to understand the emerging rhetoric about the relationship between economic, social, and cultural rights and development. Resolution XVII (on Economic Development), based on a Ukrainian draft, was the result, in large part, of a report that was prepared ahead of the Conference, entitled “Some Economic Foundations of Human Rights.”46 The resolution notes the connection between development and rights (without being specific) and then calls upon developed countries to adjust their international economic and financial relations to foster the transfer of “adequate development resources and technology” to the developing world. It also calls upon developed countries to contribute at least 1 percent of their GNP to development assistance.47 The only thing developing states were called on to do was effectively use all available resources to raise standards of living and to reduce economic disparities within their jurisdictions. The resolution also calls upon the members of the international community to assume

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their “full responsibility” in the field of development “with a view to establishing economic and social justice.” After some modifications that it had suggested were adopted, the United States announced its intention to vote favorably on this resolution, while expressing its concern especially with a recital in the resolution that suggested that civil and political rights are dependent on the enjoyment of economic, social, and cultural rights. Interestingly, U.S. support for the draft resulted in the Soviet Union backing off from its support (recall that the original draft had been submitted by the Ukrainian delegation). The Soviet delegate stated, “The enjoyment of human rights and fundamental freedoms was not necessarily the corollary of economic prosperity. South Africa provided sufficient proof of that.”48 Another Soviet objection was that operative paragraph 3 was vague and “did not specify the purposes for which the funds provided as international aid . . . ​were to be used.”49 The Ukrainians suggested language that would have placed responsibility for poverty, disease, and illiteracy in the developing world on “persistent colonialist domination.”50 All of the developing country delegations sitting on the Conference’s second committee—­Costa Rica, Mauritania, Iran, India, Nigeria, and the United Arab Republic (Egypt)—­a s well as Yugoslavia—­disagreed with the Soviets and Ukrainians.51 Nigeria’s remarks about the resolution are worth noting: Did the Soviet Union representative think it possible to speak of the equality of economic and social rights when a tractor sold by his Government to an agricultural country for the price of a ton of coffee took only a few hours to manufacture, whereas the planter required a year’s labor to produce the ton of coffee? Did he not believe in the provisions of the United Nations Charter and the Universal Declaration of Human Rights? He had affirmed that the backwardness of the developing countries was due to the actions of the colonialist powers; no doubt that was partially true, but the draft resolution was calling upon the industrially developed countries, including the Soviet Union, to help the developing countries and to assume their own responsibilities toward the international community. 52

The Soviets and Ukrainians subsequently withdrew their amendments to the resolution, which was adopted by the committee 52–­0 with four abstentions.53 It was adopted in plenary session by a vote of 65–­0 with four abstentions (the USSR, Ukraine, Byelorussia, and Poland).54 Resolution XXI, Realization of Economic, Social and Cultural Rights, is perhaps more important, for was the first such resolution to place specific emphasis on the need for further measures at the United Nations to promote economic, social, and cultural rights while noting that they were “interconnected and interdependent” with civil and political rights—­w ithout making any mention of the Covenants. 55 The resolu-

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tion begins by resurrecting language from General Assembly Resolution 421 E (V), that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of man.” The first operative paragraph of the resolution calls upon states to sign and ratify “within the shortest time possible” the two Covenants.56 Second, it states that the problems of economic, social, and cultural rights “should receive due and increasing attention” in the United Nations system, as human rights problems, “in view of the increasing importance of realizing these rights in the modern world.”57 Perhaps most notably, India successfully advocated the insertion of a paragraph placing obligations on developing states—­ rather than on international cooperation—­for developing “the material means of protecting, promoting and realizing economic, social and cultural rights, as well as on developing and perfecting legal procedures for prevention of violations and defense of these rights.”58 Again, at the behest of India, a separate operative paragraph urges governments to ensure “the informed participation of all citizens in the decision making process affecting national development.”59 The resolution, as amended, was approved unanimously by the Second Committee60 and was adopted in plenary, 67-­0 with one abstention (Vietnam), and became Teheran Resolution XXI.61 The Proclamation of Teheran The Final Act of the International Conference on Human Rights62 was adopted on May 13, 1968. It included the Proclamation of Teheran,63 the texts of the twenty-­nine resolutions adopted by the Conference, and supporting materials (including the texts of an additional eighteen resolutions that were not adopted by the Conference). The Proclamation is a statement of principles, akin in many respects to a General Assembly resolution. Most of its operative paragraphs merely reflect the content of many of the resolutions adopted by the conference. Operative paragraph 3 stipulates that the two Covenants (adopted in 1966), the Independence Declaration, and the Convention on Racial Discrimination (in addition to other, unnamed conventions and declarations) have created human rights standards to which States “should” conform. Receiving particular emphasis were the words, “the primary aim of the United Nations is the achievement by each individual of the maximum freedom and dignity.”64 This is important; in the decade that would follow, much more emphasis on the rights of collectivities would gain a strong foothold in the United Nations. Operative paragraphs 12 and 13 of the Proclamation should be read in tandem. The first establishes the core problem, and the second, its so-

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lution in terms of human rights. It is also the first instance wherein the United Nations defines “indivisibility” in terms of a hierarchy of rights necessary for development: 12. The widening gap between the economically developed and developing countries impedes the realization of human rights in the international community. The failure of the Development Decade to reach its modest objectives makes it all the more imperative for every nation, according to its capacities, to make the maximum possible effort to close this gap 13. Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights, is impossible. The achievement of lasting progress in the implementation of human rights is dependent upon sound national and international policies of economic and social development Paragraph 13 of the Proclamation conveys two important principles about the indivisibility of human rights. The first is that the realization of civil and political rights without the realization of economic, social, and cultural rights is impossible. The second links the priority of economic, social, and cultural rights with development—­that the implementation of human rights is dependent upon sound and effective national and international development policies. The full text of the Proclamation, which was adopted by acclamation on the final day of the Conference, was prepared and submitted by Iran. However, both the Soviet Union and the United States had already drafted proposals for some kind of statement that could be adopted at the end of the Conference. The plenary records suggest that the Iranian draft sought a compromise between the U.S. and Soviet versions.65 The very lengthy Soviet draft declaration66 was largely focused on matters of procedure—­how the United Nations should go about doing its human rights work. Among the substantive areas the USSR believed should be prioritized by the U.N. included combating policies of “aggression and violence,” apartheid, racial discrimination, fascism, and neo-­Nazism. The Soviet draft also discussed the importance of granting independence to colonial peoples and improving the status of women. Even though the Soviet draft never uses the word “indivisible” to describe the relationship between civil and political rights and economic, social, and cultural rights, it did include the following formulation: “the intensification of United Nations activities to ensue the fuller realization of political, civil, economic, social and cultural rights, with particular emphasis on social and economic rights, since until these problems are

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solved, until illiteracy is stamped out and democratic reorganizations and reforms are carried out, it will be impossible properly to ensure the realization of the entire complex of human rights and freedoms.”67 This is the only mention of economic and social rights in the Soviet draft. While the language of this paragraph seems odd given the Soviet Union’s historical penchant for specificity in speaking about economic and social rights, it is clear that the prioritization of economic, social, and cultural rights over civil and political rights in the Proclamation emerged from the USSR draft declaration.68 It is notable, however, that the Soviet draft makes no mention of the problems of development, of an unjust global economic system, of poverty, or any other such problem. However, the much more succinct American draft69 does, accounting for the second sentence of paragraph 13 of the Proclamation. The U.S. proposal includes a brief preamble and fourteen points of principle and action to guide U.N. human rights policy in the future. Among the more enlightening parts that one might not expect to see in an American draft was a call for Member States of the U.N. to “make every effort to apply the human rights conventions drafted by United Nations agencies,” the notion that governments have a twofold obligation in terms of human rights—­“to ensure that each citizen is aware of his rights as an individual and receives the full protection of equitable laws, and to ensure that he enjoys the economic, social and educational facilities he needs for a life of basic human satisfaction”—­and a statement of support for the creation of a U.N. High Commissioner for Human Rights. We also find the second half of paragraph 13 of the Proclamation of Teheran expressed in paragraph 7 of the American proposal: “Lasting progress in the extension of human rights is dependent upon sound and effective policies of economic, social and political development and upon full educational opportunity. An accelerated cooperative effort by the United Nations and by governments is required if such progress is to be made.”

The Revisionism of Teheran The first international conference on human rights was clearly focused on the same problems then occupying the U.N.’s attention—­especially the problems of racial discrimination and apartheid, as negative consequences of the much broader and ongoing problem of colonialism. In these respects, the conference was highly focused. This reality explains in many respects why the conference was not nearly as focused on standard setting with regard to core human rights issues, and we see almost no attention directed at urging Member States to quickly ratify the new Covenants so that they could come into force. Eight years would pass

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from the closing of the Teheran Conference until that milestone was reached in 1976. The work produced at the Teheran Conference represents but one moment in the long journey between the normative activity surrounding the Universal Declaration of Human Rights and the Covenants immediately thereafter, and the World Conference on Human Rights in 1993, which saw a return to normative activity on core human rights. The delegates at Teheran were not interested in the Covenants, monitoring, or enforcement. They were interested in the problems of colonialism, apartheid, and racial discrimination—­items already of concern to the developing world. The groundwork for what would become the prioritization of global economic issues and development was laid at Teheran. It was wrapped within the cloak of the indivisibility of civil and political rights and economic, social, and cultural rights. However, as far as civil and political rights were concerned, Teheran was nearly silent. The Conference adopted one resolution on the rights of detainees and one on the subject of providing legal aid to the accused—­but both resolutions were short and relatively technical in character.70 The only paper prepared for the conference on the subject of civil and political rights, “Civil and Political Rights in the Context of Development Assistance,”71 deals with public participation in development planning and the role of the organization of government (public administration) in the development process. It does not address the ways in which violations of civil and political rights have a negative impact on development or how development policies might (inadvertently) infringe on certain civil and political rights. One observation about Teheran that is worth noting is the disconnect between the strong rhetoric that the enjoyment of civil and political rights is impossible without the enjoyment of economic, social, and cultural rights, and any link of that principle to the broader call for development assistance. Also notable is the very careful and less demanding wording of Resolutions XVII and XXI that have bearing on the wider discussion of the indivisibility of human rights and the status of economic, social, and cultural rights and economic issues generally. That disconnect would disappear by 1977, when the rhetoric on indivisibility would shift to a clear prioritization of economic and social rights, and the duties of the developed world to the developing world to make economic, social, and cultural rights “real.” One reason the Conference devoted so little attention to the grand categories of human rights, as represented by the Covenants, was due to the growing wariness of what the entry into force of the Covenants might actually portend for developing states—­especially in Africa. While the Convention of the Elimination of Racial Discrimination (CERD)

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included a complaints procedure, presumably complaints about racial discrimination would be levied against white colonialists, or white minorities that had stayed on after independence—­not against governments. This would not be the case with the International Covenant on Civil and Political Rights (ICCPR). One observer noted that that the ICCPR’s monitoring (the Human Rights Committee reviewing reports) and complaints procedures (state-­to-­state complaints) were “watered down largely by an African state’s amendment which was carried.”72 They were worried in particular about the Human Rights Committee— ­a committee of independent experts—­that would monitor the provisions of the ICCPR, and the fact that those experts would largely come from the former colonial powers. In addition, African states were highly skeptical of the ability of Western “experts” to hold Africans’ interests dear. This suspicion was based on the experience of the U.N. Good Offices Committee (consisting of the U.S., the U.K., and Brazil), which in 1957 had suggested that South West Africa should be divided into black and white areas. Thus, the “Bantustan policy of South Africa within Southern Africa itself was then approved by implication.”73 This fear was further confirmed by the 1966 International Court of Justice ruling in the South West Africa Cases.74 Furthermore, many African leaders were expressing doubts that “in the present stage of their development, they cannot honestly be expected to fulfil the obligations spelt out in the Covenants,” or that in order to do so, African states might have to resort to “stern measures to integrate the state”; that it “might be necessary to follow an unequal road to equality.”75 The United States underwent a fairly significant change in attitude about the Conference. It was initially opposed to the idea of the conference, preferring instead a special session of the General Assembly to consider progress and obstacles on human rights since 1948.76 Secretary of State Dean Rusk noted the “considerable risk [of the] irresponsible use [of the] conference platform for race and other propaganda issues.”77 It was the U.N.’s preoccupation with racial discrimination that prompted the United States in 1965 to support a Costa Rican proposal for the creation of a High Commissioner for Human Rights: “the United Nations involvement with human rights in recent years has been characterized by a heavy preoccupation with race issues. Too little attention has been given to the fundamentals of human justice everywhere.”78 As for economic, social, and cultural rights, the context of Lyndon Johnson’s Great Society was quite important, especially in the area of poverty reduction. When he resigned as the U.S. representative to the Commission on Human Rights, Morris Abram wrote about Americans’ attitudes toward economic and social rights, telling Lyndon Johnson that the ad-

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ministration had “taken strong economic and social steps to encourage wider public acceptance of this idea and to implement these rights. Nevertheless, some Americans still do not understand that the Universal Declaration’s economic and social rights, like our own Constitution’s political safeguards, are not luxuries, but necessities for a free and viable society.”79 Eleven of the twenty-­nine Teheran Resolutions were eventually translated into U.N. General Assembly resolutions between 1968 and 1970.80 None specifically addressed the need to promote the immediate entry into force of the two Covenants or addressed the issue of economic, social, and cultural rights in particular. One of the two resolutions described above—­Economic Development and Human Rights—­was referenced in General Assembly Resolution 2586 (XXIV), adopted in 1969. That resolution merely asked the Preparatory Committee for the Second Development decade to “take these considerations in full account and to include them in an appropriate form in its report on the Decade.” In its declaration and plan of action for the Second Development Decade, the only expression of a link between human rights and development appeared in paragraph 5 of the preambular section of General Assembly Resolution 2626 (XXV), International Development Strategy for the Second United Nations Development Decade: “The success of international development activities will depend in large measure on improvement in the general international situation, particularly on concrete progress towards general and complete disarmament under effective international control, on the elimination of colonialism, racial discrimination, apartheid and occupation of territories of any State and on the promotion of equal political, economic, social and cultural rights for all members of society.”81

1952–­1968 as an Interlude The period covered in this chapter is book-­ended by two moments of substantial normative development on human rights at the U.N.: the division of the Covenants (Chapter 6), and the adoption of Resolution 32/130 in 1977 (Chapter 8). In a sense, it serves as an interlude. While the 1968 International Conference on Human Rights was important, especially in the discursive history of indivisibility, it was not a watershed in the same manner as the 1993 World Conference on Human Rights (Vienna) would be. Two key features of this period stand out. The first is that the Covenants were deemphasized in the discourse surrounding international human rights. Once the debate over one or two Covenants was settled and the Covenants were buried within the increasingly overcrowded

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agenda of the General Assembly’s Third Committee, all advocacy for their entry into force quietly vanished. And while the centrality of the Covenants disappeared from the scene, the value placed on the Universal Declaration as foundational began to rise. The second important feature was the first use of the term “indivisible” in reference to the relationship between the two grand categories of human rights in a major U.N. statement of principles. The term had been used before (as we saw in proceeding chapters), but the first official appearance of the term was in the Proclamation of Teheran. As we have seen, however, indivisibility came to mean prioritization of economic and social rights, a revision of the organic unity of human rights envisioned by the drafters of the Universal Declaration. Concomitant with the rhetoric of indivisibility was the pivotal linkage between the cause of human rights and the postcolonial agenda of newly independent and underdeveloped states. This began with the (final) articulation of a right to self-­determination of peoples as a human right. The elaboration of a right to self-­determination led to increasingly strident demands for an end to colonialism, as recognized by the 1960 Independence Declaration. By far the most important human rights issue that emerged during this time was ending racial discrimination and especially the noxious policy of apartheid, its worst manifestation. These connections would lead to others being forged at Teheran, albeit in milder, more nascent ways. In the 1960s we begin to see the first articulations of a real attachment between the cause of human rights (meaning economic, social, and cultural rights in particular) and development. This was part of the rhetorical basis of indivisibility, but the linkage was not as strong as it later would become, by the mid-­1970s. The next chapter picks up that part of the story.

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Chapter 8

Indivisibility as Economic Justice: 1968–­1986

All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, protection and promotion of both civil and political, and economic, social and cultural rights. . . . ​ In approaching human rights questions within the United Nations system, the international community should accord, or continue to accord, priority to the search for solutions to the mass and flagrant violations of human rights of peoples and persons affected by situations such as those resulting from apartheid, from all forms of racial discrimination, from colonialism, from foreign domination and occupation, from aggression and threats against national sovereignty, national unity and territorial integrity, as well as from the refusal to recognize the fundamental rights of peoples to self-­determination and of every nation to the exercise of full sovereignty over its wealth and natural resources. —­U.N. General Assembly Resolution 32/130 (1 (a) and (e)), December 16, 1977

By the 1970s, the aspirations of the 1960s that emerged in U.N. discourse, attaching interstate political and economic justice goals to human rights, increasingly became demands during the 1970s, starting with the New International Economic Order. As discussed in Chapter 7, the rhetoric of indivisibility was deployed to prioritize economic, social, and cultural rights over civil and political rights, and the only way for economic, social, and cultural rights to be properly achieved was to link them directly to demands for development resources. By 1977, this human rights revisionism was finally made official U.N. doctrine in General Assembly Resolution 32/130. It was at this point, however, that the rhetoric of indivisibility began to split into different paths. I argue that the path of Resolution 32/130 would lead, in 1986, to the Declaration on the Right to Development. The other path was paved by the entry into force of the two Covenants in the late 1970s, the replacement of the first highly unsuccessful attempts

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at monitoring of the ICESCR by a new body in 1987, and a significant realignment of principles in the aftermath of the World Conference on Human Rights in 1993. This second path (which is the subject of the next chapter) was evidenced by the normative activity of scholars and advocates, and the development of new institutional activity at the U.N., focused on the interdependence and interrelatedness of human rights (even though it is often called indivisibility). In terms of broad policy on human rights, Jack Donnelly described the period between the Teheran Conference and the adoption of General Assembly Resolution 32/130 in 1977 as “lacking direction.”1 While colonialism and racism continued to dominate the agenda, “anticolonialism [was] essentially a self-­liquidating venture, as colonies become independent countries.” 2 Other human rights items that began to appear in General Assembly resolutions dealt with contained problems in specific countries and regions—­apartheid in South Africa, political repression in Chile, and the ongoing human rights concerns in the Israeli­Occupied Territories. “Not surprisingly, then, in the late sixties and early seventies the human rights work of the U.N., dominated by these limited and increasingly sterile issues, was, as a rule, restricted, routine, or repetitive.”3 A new grand vision of human rights was necessary—­a majority vision. The emergence of particularly political instantiations of Third World solidarity (especially fueled, if one will pardon the pun, by the enormous success of the OPEC embargo of 1973 in response to the Yom Kippur War), such as the adoption of the New International Economic Order, were evidence of a new generation of human rights, the seeds of which were planted in the 1950s and 1960s. While the ground for this growth was tilled at Teheran, it was increasing Third World unrest over global economic inequalities that pushed the mild revisionism of Teheran into the full-­blown human rights revisionism of Resolution 32/130.

Trade, Aid, and Development in the 1970s For developing countries at the U.N., the struggle against the “unjust” global economy was to the 1970s what the struggle against colonialism and racial discrimination was to the 1960s. The most important outcome of this new priority was the watershed proposals that emerged in 1974 and 1975 under the banner of the New International Economic Order (NIEO). The NIEO proposals were adopted by the Sixth and Seventh Special Sessions of the General Assembly in 1974 and 1975,4 the crowning achievement of a long process of building Third World solidarity through the nonaligned movement, the Group of 77, and the ongoing United Nations Conference on Trade and Development (UNCTAD)

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process.5 The NIEO’s proposals sought to significantly redistribute global wealth and resources, representing the first attempt since Bretton Woods to alter global terms of trade, this time for the benefit of most commodity-­producing countries of the developing world. “They saw this both as a means of accelerating the pace of their development and as a necessary precondition for putting an end to the inequality which had traditionally characterized relations between the developed and developing countries.”6 It is important to note that the NIEO itself was not articulated within the framework of human rights. Nowhere in the U.N. Declaration on the Establishment of a New International Economic Order nor in the NIEO Programme of Action does any reference to human rights appear—­not even the standard-­stock preambular material typical of such U.N. resolutions and programmes. Chapter I of the 1975 Charter of the Economic Rights and Duties of States,7 which lays out fifteen principles by which “economic as well as political and other relations between States shall be governed,” lists “respect for human rights and international obligations” as the eleventh. It is the only such reference in the entire Charter. A probable reason for the absence of human rights language is that the NIEO proposals and the Charter of the Economic Rights and Duties of States were drafted by the General Assembly’s Second Committee, which handles Economic Affairs. It was the Commission on Human Rights and the Third Committee that turned the NIEO into a human rights issue. Their resolutions suggested not only that the NIEO would hasten the realization of (economic, social, and cultural) human rights but also that the realization of the NIEO was a prerequisite to implementing human rights in developing countries. Another key element that influenced the unfolding discursive environment of indivisible human rights as global economic justice in the 1970s was a significant report authored by Manouchehr Ganji, entitled “The Realization of Economic, Social and Cultural Rights: Problems, Policies and Progress.”8 The U.N. Secretary-­G eneral commissioned the report immediately after Teheran, and Ganji completed it in 1973. As Donnelly notes, “in many ways this study, and the period of calm and relative inaction during which it was being prepared, mark the germination period for the priorities adopted in the late seventies.” 9 The first part of the report provided an analysis of comparative constitutional law with regard to the recognition of economic, social, and cultural rights. The report is filled with social and economic indicators on health, education, and wealth and poverty, listed by country, which Ganji grouped into the three familiar categories of OECD, Soviet bloc, and developing worlds. In this respect the report resembled something that one would expect to see from, for example, the United Nations Development Pro-

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gramme, the World Health Organization, or the International Labor Organization. Of interest here were Ganji’s conclusions and recommendations, and the manner in which the human rights agenda established by Resolution 32/130 sought to ground itself in some of Ganji’s key observations while at the same time ignoring others wholesale. While Ganji does briefly discuss the international dimensions of development and the roles of trade and aid, he does not engage the rhetoric of the “unjust” global economy, or the necessity of the establishment of a new international economic order. His focus, rather, was on the internal dynamics of states vis-­à-­v is economic and social development, and his conclusions and recommendations make this quite clear. Ganji did not employ the polemical language of colonialism or imperialism that would predominate in the rhetoric of General Assembly Resolution 32/130. He did, however, recognize the importance of national autonomy and independence of states for the realization of economic, social, and cultural rights of their peoples: “The actual realization of economic, social and cultural rights is primarily the sole concern of each State acting by itself and determining its policies within the prevailing economic, social, cultural, legal and ideological setting, which is not the same in any two countries in the world. Therefore, each country is entitled to develop its own forms and methods for the realization of economic, social and cultural rights, although it can, of course, make use of the successful expertise of other countries, if it so desires.”10 This conclusion is followed by a statement that the most important prerequisite for the meaningful realization of all rights—­in particular, economic, social, and cultural rights—­“ is independence, territorial integrity and national sovereignty, without which no effort towards economic or social development could lead to a more egalitarian and just society.”11 Paragraphs 132–­38 of the report referred to technology transfers, but in the sense that they be appropriate technologies for developing country settings. Paragraphs 153–­58 on the role of trade in development focused on the tendency for the rich countries to trade with one another rather than with developing countries, and it generally recommended more North-­South trade, increases in aid, and the reduction of import taxes and duties by the developed countries. The section entitled “International Obligations for Development” is noteworthy because it recommended real reform in the sphere of international law rather than making moral demands couched in the language of entitlement: Before the Second World War, hardly anyone saw a common responsibility on the part of the more developed nations to aid the less developed. Now such

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a responsibility is being more and more recognized as a general proposition. We have probably reached the time when public international law should address itself, in the interest of world peace, human solidarity and international cooperation, to the world-­w ide problem of mass poverty and human degradation and to the obligations of the international community with respect to that problem. The United Nations International Law Commission should have already deliberated on this matter in its work on the progressive development of international law. The Commission on Human Rights may now recommend that the question be placed in the agenda of the International Law Commission with the priority that it deserves.12

Again, most of Ganji’s conclusions and recommendations were focused on developing countries themselves. The report emphasized the obligations of states in the development process; that no matter their particularities, “governments will have to assume the leadership in removing the major institutional barriers to development, while planning for the respective roles the public and private sectors must play in this process (emphasis mine).”13 His recommendations called for significant reforms—­in the redistribution of land, in the educational system, and in public administration—­and that the realization of economic, social, and cultural rights is predicated on “peaceful, radical social change, as speedily as possible, which would allow all the human and material resources of the nation full and dynamic participation in the process of development.”14 The complexity of the challenges for the realization of economic, social, and cultural rights was summed up in a lengthy conclusion, which is worth citing in its entirety: Radical reforms in the less developed countries must be based on social justice, national consolidation and solidarity, the full and equal participation of women in the economic, social, political, and cultural life of the country, the equitable distribution of income, wealth and services, the bringing of rural and urban income levels closer together, an increased respect for manual work, the removal of any kind of discrimination in fact as well as in law, and the decentralization of decision-­making and the system of government within the framework of a strong central Government, as well as a unified national development plan. The creation, expansion and consolidation of the link between labour and ownership in industries, the training of skilled workers, a radical change of educational system implying an increase not only in the quantity of schooling but also an improvement in its content and its very spirit, the stamping out of corruption, and the creation of more social discipline throughout society are essential for faster economic and social development. Without a sufficient core of well qualified, dedicated and honest administrators, the realization of economic, social and cultural rights will be delayed. The exercise of social discipline and the participation of all people in all walks of life are the corner-­stones of success in implementing economic and social plans aimed at speeding up the enjoyment of economic, social and cultural rights by all.15

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The Ganji report was significant in that it laid a basis for the human rights-­development connection. While it does speak to the need for self­determination, independence, and autonomy for developing states, its analysis balances the problems of the often-­t imes unfair international economic environment with internal political obstacles to development within developing countries. Sadly, the U.N. would focus its attention on the former and polemically employ it, while ignoring the latter altogether.

The Search for Alternatives to Covenant-­based Human Rights Law As we know, the Covenants did not receive the necessary thirty-­five ratifications required for each of them to enter into force until 1976. Prior to that, the General Assembly adopted four resolutions, one each year, from 1971 to 1974, urging Member States to accelerate their internal deliberations on ratification of the Covenants, so they could enter into force as soon as possible.16 However, in Resolution 2860 (XXVI) of 1971, Celebration of the Twenty-­Fifth Anniversary of the Universal Declaration of Human Rights, the General Assembly stated that it was “convinced of the historical significance and enduring value of the Universal Declaration of Human Rights as a common standard of achievement for all mankind”—­one sign that in the absence of the Covenants, the United Nations should begin to consider other ways and means for protecting human rights. This was among the first of many such resolutions and pronouncements that would increasingly give weight and significance to the Universal Declaration of Human Rights as opposed to the Covenants as the key expression of internationally recognized human rights. This was part and parcel of the rhetoric of indivisibility, yet revisionist in its prioritization of economic, social, and cultural rights. In its Resolution 3136 (XXVIII) of 1973,17 the U.N. called for a new item to be placed on the Assembly’s agenda two years hence, during its thirtieth session, entitled Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms. In anticipation of this new agenda item, in 1974 the General Assembly adopted Resolution 3221 (XXIX), Improvement of the Effective Enjoyment of Human Rights and Fundamental Freedoms, which asked the Secretary-­G eneral to update his reports on U.N. human rights activities prepared for Teheran, and to get input on those measures from Member States, specialized agencies, and NGOs.18 Immediately afterward, the Assembly adopted Resolution 3222 (XXIX), Human Rights and Fundamental Freedoms, which begins to form the nucleus of what would later become the repri-

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oritization of human rights issues that would emerge in 1977. In it, the General Assembly declared its indignation “at the continuing repression and inhuman treatment inflicted on peoples still under colonial and foreign domination.” It reaffirmed the importance of the Universal Declaration of Human Rights (referring to Resolution 2860), and reaffirmed the right of all peoples—­in particular, in southern Africa—­to self-­determination, freedom and independence, and the legitimacy of their struggle to free themselves from such domination. It also strongly condemned in particular NATO states and others that were “assisting” the racist regimes in Southern Africa. During the same session, the General Assembly adopted Resolution 3281 (XXIX), the Charter of the Economic Rights and Duties of States, as part of the implementation of the NIEO. As I mentioned before, this resolution was drafted in the Second Committee, and made no specific references to human rights. As for the Covenants, which finally entered into force in 1976, the General Assembly quietly noted this in Resolution 31/86,19 which requested the General Assembly to appropriate the necessary resources to the Economic and Social Council and the newly created Committee on Human Rights to enable them to carry out the monitoring and reporting procedures enumerated in the Covenants.

Resolution 32/130 of 1977: Alternative Approaches to Human Rights Not since General Assembly resolution 421 (V), adopted twenty-­seven years earlier, had the United Nations General Assembly adopted a resolution that so emphatically foregrounded principles. As we saw in Chapter 4, the centerpiece of Resolution 421 (V) was both principled and directive. It described the reasons that economic, social, and cultural rights needed to be included alongside civil and political rights in a single Covenant, and it directed the Commission to draft and include them in the Covenant. Indeed, in its preamble, General Assembly Resolution 32/13020 resurrected a key recital within Resolution 421 (V): “In accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.” The preamble of Resolution 32/130 also brings together many of the concerns of a majority of Member States of the United Nations that had been separately expressed in a hodgepodge of prior resolutions, now bringing them all under the umbrella of human rights. The operative clauses of the resolution adopt a new approach to human rights based on the following principles (phrases in italics are my emphasis):

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all human rights are indivisible and interdependent; attention and urgent consideration should be given to the implementation, promotion and protection of both sets of rights; • As directly quoted from the Teheran Final Act, “The full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible,” and that the implementation of human rights is “dependent upon sound and effective national and international policies of economic and social development”; • That all human rights and fundamental freedoms of the human person and of peoples are inalienable; • Consequently, human rights questions should be examined globally, taking into account the overall context of various societies; • That the U.N. approach to human rights questions should accord priority to the mass and flagrant violations of human rights of peoples and persons affected by situations such as those resulting from apartheid, racial discrimination, colonialism, foreign domination and occupation, aggression and threats against national sovereignty, national unity and territorial integrity, as well as the refusal to recognize the fundamental rights of all peoples to self-­determination and of every nation to exercise full sovereignty over its wealth and natural resources; • That the realization of the NIEO is an essential element for the effective promotion of human rights and fundamental freedoms and should be accorded priority; • The importance of Member-­States to undertake human rights obligations through the ratification of human rights instruments; • That the experience and contribution of both developed and developing countries should be taken into account by all organs of the U.N. system in its human rights activities. • Equal

The operative clauses of the resolution called for the Commission on Human Rights to formulate proposals for alternative approaches and ways and means for improving the enjoyment of human rights based on these principles. What that meant, in the end, was an ever-­expanding effort to use the language and principles of human rights to further other related but ultimately separate goals, especially in the field of economic development. There are two very important aspects of Resolution 32/130 that I would like to explore here in some detail, as they relate to the rhetoric of indivisibility. The first concerns the overall approach to human rights embedded in this resolution: what now did the United Nations consider to fall under the rubric of human rights? Second is the embedded vision of the relationship between the two grand categories of

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human rights, much of which is, interestingly enough, like a visitation of a ghost from the past: a recapitulation of many of the debates we saw in evidence during the late 1940s and early 1950s. In many respects, one might consider Resolution 32/130 to be a vindication of those states that argued forcefully for a single Covenant with both sets of rights—­ but lost that battle. At that time, indivisibility was used to downplay or gloss over the significant differences between the two grand categories of human rights. By 1977, the majority of states (developing countries) were using the language of indivisibility in order to prioritize economic, social, and cultural rights over civil and political rights. States opposed to Resolution 32/130 (mostly Western states) argued that prioritization was anathema to the very concept of indivisibility. As Antonio Cassese noted, Resolution 32/130 coincided with the quashing by developing states of a proposal by Western states for the establishment of a U.N. High Commissioner for Human Rights, which would have strengthened monitoring and enforcement of the Covenants by the U.N.21 The structure and flow of the resolution reveals the intention of its drafters and supporters. It declares that human rights are indivisible and interdependent, then immediately proclaims the priority of economic, social, and cultural rights. Thus, human rights equal economic, social, and cultural rights. Then it declares these rights to be inalienable—­the first time such a formulation appeared in a General Assembly resolution. Thus, economic, social, and cultural rights are inalienable and also belong to peoples as well as persons. This also suggests the conclusion that civil and political rights are individual rights and economic, social, and cultural rights are group or collective rights. Next, the resolution declares that a number of injustices within the international system—­that is, the violations of the rights of states by other states—­constitute mass and flagrant human rights violations. Many of these injustices have an economically exploitative quality to them.22 The resolution next declares the program of the NIEO—­an economic program—­to be essential to the promotion of human rights (read economic, social, and cultural rights, which are inalienable, group rights). As mentioned earlier, none of the NIEO proposals ever used the rhetoric of human rights—­w ith the exception of reproducing sections of the self-­determination article common to both Covenants.23 The final point of the resolution—­on the importance of developing country experience on human rights—­is tied to all the rest, and states, in essence, “it’s time for the developing world to define, for itself, what ‘human rights’ mean.” This sentiment was expressed by the delegation from Jamaica during the drafting of the resolution in the Third Committee: the emphasis on economic, social, and cultural rights “had evolved from the historical development of the countries in the southern hemisphere. It would be a mistake to

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underestimate the impact of the experience of the developing countries on the intellectual and moral principles which governed United Nations activities. That experience had led the international community to an increasing acceptance of the indivisibility and interdependence of all human rights. . . . ​[T]he tendency reflected the idea that economic and social justice was a fundamental aspect of the economic system and a full guarantee of the enjoyment of all human rights.” 24 The travaux preparatoires of Resolution 32/13025 bear out these observations, and again echo in many respects the debates of the late 1940s and early 1950s over economic, social, and cultural rights. Cuba, in speaking about the prioritization of these rights (as reflected in the “impossibility” clause from the Proclamation of Teheran), argued: Their order of importance was quite clear, as indicated in the Proclamation of Teheran: the exercise of civil and political rights was impossible without the effective enjoyment of economic, social and cultural rights. It was therefore essential to ensure economic development in order that all citizens might exercise not only their economic, social and cultural rights, but also, and at the same time, their civil and political rights. Some countries which had contributed appreciably to the underdevelopment of other countries had interpreted that position as an excuse to gloss over violations of the latter category of rights. That was obviously a self-­interested, fallacious and tendentious argument. The claim that it should be possible to exercise civil and political rights immediately, while the enjoyment of economic, social and cultural rights should be the culmination of a long process reflected a concept that denied the interdependence of those rights and a totally negative attitude.26

The Iranian delegate, citing two “different worlds”—­one of individuals, and one of peoples—­a ssigned the importance of economic, social, and cultural rights to the latter: “There could be no real co-­operation in the implementation of individual rights and civil and political rights if no such co-­operation was forthcoming for the implementation of the rights of peoples and economic, social and cultural rights.” 27 The Philippine delegate pointed out that “President Marcos had declared that the Government and people of his country were deeply committed to the protection of human rights but that in the absence of any concrete effort to provide for basic human needs that commitment would become a farce. He had stated that equality rather than freedom should be the more powerful motive force in a developing country.”28 As far as Hungary was concerned, “economic rights, such as the right to work, were the prerequisites for all the others. [The Hungarian] delegation affirmed the indivisibility of civil, political, economic, social and cultural rights and was convinced that the international community must focus its attention primarily on the elimination of such violations of human

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rights as apartheid, racial discrimination, colonialism, neo-­colonialism and foreign occupation.”29 While there was a clear consensus on these points throughout the developing world,30 some developing country delegations were more cautious. Fiji argued that despite the principle of universality, “human rights matters were extremely complex and reflected the diversity of traditions, practices and codes of behaviour prevailing in different countries and regions” throughout the world.31 With regard to implementation of economic, social, and cultural rights at the national level—­a topic that was barely discussed—­Fiji suggested that the weak reporting procedure under the ICESCR in place at the time meant that the effective enjoyment of those rights was nil, and it would be in support of strengthening those procedures or instituting new ones.32 Another eight years would pass before this would actually happen—­and not because of any action by the General Assembly to make it so. Uruguay had significant reservations about the word-­for-­word inclusion of the impossibility clause from Teheran in the draft resolution: “If the full realization of civil and political rights without the enjoyment of economic, social and cultural rights was impossible, the converse was equally true. . . . ​It would be artificial to try to divide the world into two opposing concepts: the so-­called Western idea that fundamental freedoms were political freedoms, and the socialist and Marxist conception that it was first necessary to ensure that a person had satisfactory material conditions of existence.”33 Bolivia was skeptical of linking the realization of human rights to the NIEO: “Such a dual objective was undoubtedly ambitious, since the proposals set out in the Proclamation of Teheran were far from being implemented.”34 Costa Rica added that while the challenges of development meant that emphasis should be placed on economic, social, and cultural rights, that should not be an excuse for the suppression of civil and political rights “in the name of development.”35 A number of Western states expressed significant opposition to the prioritization of economic and social rights and to the suggestion that development was a prerequisite for the effective enjoyment of human rights; they invoked the language of indivisibility and interdependence in support of their arguments. Finland cited the Final Act of the Helsinki Conference on European Cooperation and Security of 1975, which linked the protection of human rights with the maintenance of international peace and security.36 And while there were practical reasons for having separate treaty regimes for civil and political rights and economic, social, and cultural rights, “the rights in both categories were indivisible and interdependent and should be given equal attention.

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However, the instruments adopted had yet to be applied universally and effectively. It was therefore necessary to study ways and means of making them fully effective, bearing in mind that States alone were in a position to take the necessary legislative, administrative and other measures in that respect.”37 Norway was concerned about the potential of making development a prerequisite to the effective realization of human rights and articulated the consequences that many Western states were concerned about. Noting that the social democratic philosophy of Norway demonstrated that country’s commitment to the idea of the indivisibility and interdependency of human rights, the Norwegian delegate also noted the difficulties faced by new societies in having the resources to do a better job in the human rights field: “In particular, understanding was called for when newly independent societies, confronted with mass poverty, illiteracy and social misery, also had to cope with subversive activities by minorities which had failed to mobilize popular support for their goals through normal democratic processes. On the other hand, it was totally unacceptable that the need for economic and social development and the required political stability should be used as an excuse for such practices as the use of torture, arbitrary arrest and suppression of political dissent.”38 France echoed these sentiments: “[France] could not accept the specious premise underlying [the draft resolution] because economic, cultural and social development were inextricably tied to the exercise of such political freedoms as freedom of expression and the right of association, on which both the trade union movement and the co-­operative movement were based. The two Covenants were indivisible. There could be no new economic order without the implementation of civil and political rights.”39 A similar response came from the United Kingdom: “The United Kingdom utterly rejected the contention that certain human rights were the concern only of Western democracies. That argument was not very flattering to the people of developing countries, and was demonstrably untrue. The United Kingdom accepted the validity of economic rights. . . . ​But the United Kingdom could not accept the idea that economic development should be achieved at the expense of political and social development.”40 Morocco floated a number of amendments to the draft resolution under consideration, seeking in particular to strike a balance between these positions, and especially to temper the collectivist tone of the resolution: “[The draft resolution] seemed to overlook the fact that human rights pertained to the individual as a human being. . . . ​The draft resolution concentrated on collective rights and, except in its first preambu-

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lar paragraph and in paragraph 1 (c), made no reference to protection of the rights of the individual.”41 Ultimately, each of Morocco’s amendments was soundly defeated in roll call votes.42 The draft resolution was approved by the Third Committee in a 126-­0 -­11 vote. Abstaining were Austria, Belgium, France, the Federal Republic of Germany, Ireland, Italy, Luxembourg, Netherlands, Spain, the U.K., and the U.S.43 With hardly any debate or discussion, the General Assembly adopted the draft resolution in a 123-­0 -­15 vote. Four countries—­Chad, Israel, Ivory Coast, and Paraguay—­joined the eleven abstainers from the Third Committee vote.44 The only delegation to explain its vote in the General Assembly was Canada, which, while voting in favor of the resolution, nevertheless remarked that more emphasis should have been placed on the fundamental rights of individuals, and that certain parts of the resolution “lend themselves to the interpretation that there are prerequisites to the enjoyment of rights and freedoms.”45 While admitting that the enjoyment of all rights is “made more difficult” in the absence of certain economic and social conditions, “we do not accept the premise that the attainment of such circumstances is a prerequisite for the promotion and protection of such rights.”46 As one observer has noted, prior to 1977 the Commission on Human Rights “gave only sporadic attention to promoting economic rights.”47 Furthermore, other U.N. bodies were increasingly preoccupied with economic development but paid little attention to human rights and never made any connection between the two. While this latter fact would not change until after the World Conference on Human Rights in 1993, the attachment of the rhetoric of the indivisibility and interdependency of human rights to development became more pronounced within General Assembly human rights resolutions adopted after 1977, leading ultimately to the 1986 Declaration on the Right to Development.

From “Alternative Ways and Means” to “the Right to Development” General Assembly Resolution 32/130 had directed the Commission on Human Rights to begin to study alternative ways and means to promote respect for human rights. Given the tone of the resolution and the heavy emphasis on economic, social, and cultural rights, a strong emphasis on their collective nature, and the push by the General Assembly to implement the proposals of the NIEO (including specific references made to the NIEO in the Declaration of the Third Development Decade), it is not surprising that a good deal of the Commission’s work on this agenda item was directed at formulating a right to development. In 1979, the Commission on Human Rights passed resolutions “reiterating” the right to development as a human right.48 This is interesting,

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considering that such a right had not yet been declared.49 Nevertheless, referring to these reiterations, the General Assembly adopted Resolution 34/46 (Alternative Approaches) in 1979, which asked the Secretary­G eneral to prepare an astonishingly convoluted study on the nature and extent to which the realization of human rights and fundamental freedoms is affected by present international conditions, with particular reference to situations resulting from apartheid, from all forms of racial discrimination, from colonialism, neo-­colonialism and imperialism, from policies tending to divide the world into spheres of influence, from the arms race, from foreign domination and occupation, from aggression and threats against national sovereignty, national unity and territorial integrity, from refusal to recognize the fundamental rights of peoples to self-­determination and of every nation to the exercise of full sovereignty over its wealth and natural resources, from intervention and interference in the internal affairs of States, particularly with reference to developing countries, as well as from the existence of the unjust system of international economic relations. 50

In 1980, the General Assembly adopted Resolution 35/174, which again emphasized the right to development as a human right, asked the Commission on Human Rights to take the necessary measures to promote development as a human right, and asked the Secretary-­G eneral to hold a seminar to examine the relationships between human rights, peace, and development, and to present the results to the Commission on Human Rights. These two reports led the Commission to adopt Resolution 36 (XXXVII) in 1981, establishing a Working Group on the Right to Development under the auspices of the Commission. The following year, in its Resolution 36/133, the General Assembly noted the Working Group’s progress and declared in paragraph 8 of that resolution that the right to development was now an inalienable human right. A series of follow-­on resolutions51 continued to make these statements of principle and urged the Commission on Human Rights to continue to support the efforts of the Working Group, which by 1982 had decided that the best way to promote the right to development would be to draft a formal Declaration to that effect. The 1986 Declaration on the Right to Development The literature on the right to development has been fairly extensive in the years since the establishment of the Working Group in 1981. 52 That literature has demonstrated an abundance of views on many different levels, and from a variety of perspectives about the nature of such a right; whether it really exists, and if so, if it is an individual or collective right; its justiciability; and who are the rights-­holders and duty bearers—­ just to name a few of the more important questions. My intention here

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is not to engage those debates. My framework for thinking about the concept of indivisibility points to the fact that the articulation of the right to development by the U.N. in 1986, embodied in the Declaration on the Right to Development, became a repository for a number of residual goals and aspirations that appeared in General Assembly Resolution 32/130 in 1977. This is evident if one traces the evolution of General Assembly resolutions adopted after 1986, under the Alternative Approaches agenda item.53 As part of its work to implement the directives of Resolution 32/130, the Commission on Human Rights had asked the U.N. Secretary-­G eneral to prepare a report on “the international dimensions of the right to development.”54 The author of that report, Theo van Boven, used the study to “advocate a synthesis of political and economic, and individual and collective rights in the development ideal.”55 Based on that report and a subsequent study on the national and regional dimensions of the right to development, in 1981 the Commission on Human Rights created a fifteen-­member Working Group on the Right to Development, consisting of government experts. Tolley notes, “After the group decided that a declaration would be more appropriate than a convention, the experts could agree on little else.”56 Despite their differences, the majority view (i.e., of developing states) was consistent in its belief that “the holders of the right are peoples and states; its objective is the democratization of international relations.” In 1983 the Working Group issued a report listing seventeen pages of principles, none of which had been accepted. “Despite the high priority and expense, in four years the members could not resolve their profound differences.”57 Yet, they continued to work on a draft Declaration, which was presented to the General Assembly in 1986. It was adopted as General Assembly Resolution 41/128 on a vote of 146-­1-­8. The United States cast the sole dissenting vote.58 The abstentions were cast by Denmark, the Federal Republic of Germany, Finland, Iceland, Israel, Japan, Sweden, the United Kingdom. The Declaration on the Right to Development 59 contains sixteen recitals and ten articles, most with two or three paragraphs each. The preamble defines development as “a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-­being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and the fair distribution of benefits resulting therefrom.” It also states, in Article 2, that “the human person is the central subject of development and should be the active participant and beneficiary of the right to development.” The Declaration also specifies a number of prerequisite or attendant processes and goals that are necessary for the realization of the right

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to development, including international peace and security, disarmament, and the establishment of a new international economic order. On principle, the Declaration states that the right to development is an inalienable human right (Article 1) implying the a priori (full) realization of the right of peoples to self-­determination, and the principle of indivisibility and interdependency from Resolution 32/130 and its follow-­on resolutions. Article 9 also states, “All the aspects of the right to development set forth in the present Declaration are indivisible and interdependent and each of them should be considered in the context of the whole.” The majority of the articles of the Declaration spell out obligations and duties for the realization of the right to development. However, there has been considerable debate about who the duty bearers are. Tolley, for example, states that the “right to development imposes obligations of the international community, former colonial powers, transnational corporations, and national governments to make human rights an integral component in all development projects.”60 This is only partially true. For one, “development projects” are not mentioned in the Declaration; rather, the concept of development is quite vague and open-­ended. The Declaration makes no explicit reference to transnational corporations or formal colonial powers.61 Any discussion about duties should include two questions. First, although a duty may be spelled out, is there an agent attached to it? Second, if the duty bearers are states, are those duties of a domestic nature, or incumbent upon them in their foreign policy? Articles 4(2), 6(2), and 10 specify duties but the agent is unclear—­A rticles 6(2) and 10 appear to be directed at the United Nations itself, especially the former, considering its origins. All the articles that assign duties (with the exception of Article 1(2)) specifically assign them to states. Articles 3(1) and 4(1) specify both domestic and international obligations. Articles 2(3), 6(3), 8(1) and 8(2) specify domestic obligations. The remainder—­A rticles 3(2), 5, 6(1), and 7—­specify obligations of states in their international policies. Of course, this says nothing of the content of those obligations, how they can be made justiciable, or how one would know if the component parts of the right to development are actually realized (or, for that matter, violated). In addition to the justiciability question, Alston mentions another objection: that the right to development is incompatible with the philosophy underlying international human rights law—­that is, that human rights are individual rights, and the right to development is a collective right of some sort.62 Despite these objections, in its defense Philip Alston—­who was Chairperson of the Committee on Economic, Social and Cultural Rights at

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the time—­noted the appeal of declaring such a right: “It is now widely accepted that the characterization of a specific goal as a human right elevates it above the rank and file of competing societal goals, gives it a degree of immunity from challenge and generally endows it with an aura of timelessness, absoluteness and universal validity.”63 Alston identified the right to development as a “solidarity right” alongside right to a “clean environment,” the “right of peoples to peace,”64 and the right to humanitarian assistance.65 He favored the idea of a right to development as taking human rights outside the realm of “myopic and incestuous” legal debates constituted by “regurgitated principles” and bad research, especially by U.N. agencies.66 Alston also pointed out that the right to development could be viewed as a synthesis of strands of already existing international law and policy “which have been hitherto artificially compartmentalized into the separate domains of human rights on the one hand and development on the other.”67 Thus, the scholarly literature and diplomatic debates about the right to development “have been little more than an exercise in shadowboxing.”68 He admitted, however, that despite the political compromises reflected in the Declaration on the Right to Development, “it has succeeded more in restating and enshrining the competing and often contradictory visions of the different groups than in resolving them.”69 A year before the Declaration’s adoption, Donnelly levied a particularly prickly set of objections to a right to development: “The right to development often appears, like the unicorn, as the embodiment of goodness and purity. . . . ​But when we look at what advocates of the right to development have brought forward, we find little more than a run­down horse with a plastic horn glued to its head—­or rather, a series of pretenders, one more ludicrous and misshapen than the next.”70 I do not intend to engage this debate. My point here is that the right to development ultimately has become a collective repository—­for some, an “intellectual cesspool”—­of the human rights revisionism first fully articulated in General Assembly Resolution 32/130 and its progeny from the late 1970s and early 1980s. Some writers continue to give the right to development their most serious and sustained attention—­to operationalize the right with reference to more meaningful undertakings in the fields of economic and social development. For example, Arjun Sengupta, who was for a time the U.N. Special Rapporteur on the Right to Development, has recently rearticulated the right as a vector, based on measurable outcomes of well-­being that incorporate, for example, the capabilities approach articulated by Amartya Sen. Thus, Sengupta posits: “The right to development is the right to a process of development, consisting of a progressive and phased realization of all the rec-

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ognized human rights, such as civil and political rights, and economic, social and cultural rights (and other rights admitted in international law) as well as a process of economic growth consistent with human rights standards.”71 He then describes this as a vector: DR = d(W R) = (dR 1, dR 2, . . . ​dRn , g ).72 While I do not believe such an expression is very helpful in understanding what a right to development means, Sengupta’s definition raises considerable difficulties, unless one simply rejects the contention that the right to development is the right to a process. If the right to development is merely meant to suggest that development—­which seems to me to be something that is always happening, everywhere—­is reducible to policies that foster or hinder that process, and that those processes need to be consistent with human rights standards and norms, this says nothing other than what the Covenants already demand. Upon close inspection, the right to development comes across as little more than a contorted and unsuccessful revision of human rights law. It adds little value to the realization of human rights, yet generates an enormous amount of confusion in the process.

Demise of the 32/130 Formulation outside of the Right to Development As the work formulating a declaration on the right to development was under way, the principles embodied in General Assembly resolutions under the Alternative Approaches agenda item demonstrated subtle but important evolutionary shifts from the pronounced rhetoric of the original 32/130 formulation that made nearly everything of concern especially to the Global South a human rights issue. These shifts occurred, I believe, because the Declaration on the Right to Development (and the drafting process that led to it) became the repository into which revisionist indivisibility was directed. An examination of General Assembly resolutions on human rights from the mid-­1980s—­either under the original Alternative Approaches agenda item, or under new agenda items—­provides evidence for this conclusion. First, resolutions subsequent to 32/130 dropped the Teheran impossibility formulation—­that because human rights are indivisible, the realization of civil and political rights was impossible without the realization of economic, social, and cultural rights. Moreover, General Assembly Resolution 37/200, Further Protection and Promotion of Human Rights (1982), featured a new principle, that “the absence of peace or development can never exempt a State from its obligation to ensure respect for the human rights of its nationals and of other persons within its jurisdiction.”73 This principle would become part of a new formulation of

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the principle of indivisibility and interdependency (or interrelatedness), first appearing in General Assembly Resolution 38/124 (Alternative Approaches) of 1983, which included in its operative paragraphs 2–­4 the following: The General Assembly . . . ​ Affirms that a primary aim of international co-­operation in the field of human rights is a life of freedom and dignity for all peoples and for each human being, that all human rights and fundamental freedoms are indivisible and interrelated and that the promotion and protection of one category of rights should never exempt or excuse states from the promotion and protection of the others; Affirms its profound conviction that equal attention and urgent consideration should be given to the implementation, protection and promotion of both civil and political, and economic, social and cultural rights; Reaffirms that it is of paramount importance for the promotion of human rights and fundamental freedoms that Member States should undertake specific obligations through accession to, or ratification of, international instruments in this field, and, consequently, that the standard-­setting work within the United Nations system in the field of human rights and the universal acceptance and the implementation of the relevant instruments should be encouraged.

This formulation was repeated the following year, under a new agenda item, Indivisibility and Interdependence of Economic, Social, Cultural, Civil and Political Rights, in General Assembly Resolution 40/114, which reversed the order of the rights listed (placing economic, social, and cultural rights before civil and political rights) and changed the phrase “should never exempt” to “can never exempt.” The resolution also stated that “the full realization of civil and political rights is inseparably linked with the enjoyment of economic, social and cultural rights.”74 The language is also reflected in the 1985 Alternative Approaches resolution (40/124), which directed the Commission on Human Rights to continue its work under 32/130, especially with regard to the right to development. Another trend in the demise of the 32/130 formulation was the appearance of new agenda items and attendant resolutions entitled, Indivisibility and Interdependence of Economic, Social Cultural, Civil and Political Rights, and International Covenants on Human Rights.75 The principles embodied in resolutions on both of these new agenda items ended the continual expansion of human rights into areas of development, peace, and humanitarian issues (which would continue to be treated in the Alternative Approaches resolutions) and sought to direct the U.N. toward a more concerted focus on states’ obligations under

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the Covenants—­especially with regard to the reporting requirements under the ICESCR. The Indivisibility resolutions76 repeat some of the language from the Alternative Approaches resolutions, but focus more on the status of economic, social, and cultural rights in particular, and the establishment by the U.N. Economic and Social Council of a formal committee to oversee and monitor states’ implementation of the provisions of the ICESCR, along the lines of the Human Rights Committee’s responsibilities under the ICCPR (more on this in Chapter 9). The first several International Covenants resolutions were devoid of any principled statements in their preambular recitals. Afterward they would contain the standard recital recalling the Covenants and “reaffirming that all human rights and fundamental freedoms are indivisible and interdependent and that the promotion and protection of one category of rights should (can) never exempt or excuse States from the promotion and protection of the other.” That formulation first appeared in Resolution 43/114 (1988) and continues to this writing. That principle aside, the operative paragraphs of these resolutions focus on the work of the two Committees and the other U.N. organs responsible for human rights, in terms of strengthening their technical competence in overseeing the implementation of the Covenants. In directing the Secretary-­G eneral to continue efforts to remove obstacles to implementation of the Covenants through the U.N.’s program of advisory services, Resolution 40/114 (1985) mentions the decision taken earlier that year by the Economic and Social Council, which decided in its Resolution 1985/17 to establish a Committee on Economic, Social and Cultural Rights to take over the responsibilities for the failed Sessional Working Groups in their oversight of the implementation provisions of the ICESCR. Another shift concerned the inclusion of references to the New International Economic Order, which until 1990 was always mentioned in a recital that stated: “Reiterating once again that the establishment of a new international economic order is an essential element for the effective promotion and full enjoyment of human rights and fundamental freedoms for all . . . ​” General Assembly Resolution 45/69 (1990) replaced that text with the following: “Deeply convinced that today more than ever, economic and social development and human rights are complimentary efforts leading to the same goal, that is, the maintenance of peace and justice among nations as the foundation for the ideals of freedom and well-­being to which mankind aspires . . . ​” While the resolution mentions the NIEO in an operative paragraph (as had always been the case), how the NIEO is mentioned gives it the quality of an afterthought:

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The General Assembly . . . ​ 10. Reaffirms once again that, in order to facilitate the full enjoyment of all human rights without diminishing personal dignity, it is necessary to promote the rights to education, work, health and proper nourishment through the adoption of measures at the national level, including those that provide for the right of workers to participate in management, as well as the adoption of measures at the international level, including the establishment of a new international economic order.

Two years later, in Resolution 45/96 (1992), the reference to the NIEO was replaced by the phrase, “entailing a restructuring of existing international economic arrangements.” As I have argued, most of the work of the Commission on Human Rights in formulating alternative approaches to human rights within the U.N. system was consumed with the formulation of a right to development between 1979 and 1986. Between 1989 and 1994, the General Assembly would pass six more resolutions under the Alternative Approaches agenda item, the last being Resolution 49/186 in 1994. With each passing year, the resolutions would become shorter and would drop many of the key ideological ingredients that were its hallmark—­ eventually even eliminating the directive that equal attention and urgent consideration be given to the implementation, protection, and promotion of civil, political, economic, social, and cultural rights.77 Because the establishment of a right to development was so central to the original thrust of the Alternative Approaches resolutions, that right became its own agenda item for the General Assembly following the adoption of the Declaration on the Right to Development in 1986.78 More important perhaps to the story of the indivisibility of human rights was the emergence of a new international jurisprudence relating to economic, social, and cultural rights generally and the ICESCR in particular, the outcome of the World Conference on Human Rights (Vienna, 1993), and an emergent literature stemming from both of these moments that brings us into the light of the present day. These developments are the subject of Chapter 9.

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Chapter 9

Indivisibility as Restoration: 1986–­2009

The Wisdom of Moses Moskowitz In February 2009, Moses Moskowitz died at the age of eighty. For decades he had been the Secretary-­G eneral of the Consultative Council of Jewish Organizations (an NGO observer at the U.N.) and was closely involved in the development of human rights at the United Nations from its earliest days. In 1958, he wrote one of the first comprehensive treatments of the relationship between human rights and world order.1 Throughout his life, he was deeply committed to the cause and promise of human rights and in particular advocated a robust system of international supervision and monitoring of states’ obligations to protect and promote human rights. By the late 1970s, however, Moskowitz was profoundly dismayed by the turn the U.N. had taken in adopting Resolution 32/130: Of the present state of international implementation of human rights it may be said that it provides neither comfort not remedy; the term has become a slogan wrapped in language that had long ago surrendered its ability to describe reality. . . . ​The United Nations . . . ​has too often become hostage to the mean­minded and prejudiced to summon the moral power and prestige to compel compliance with international rules of conduct and conscience. When texts are wrenched out of their orbits in order to fill ellipses shaped by governments and different criteria enter into the making of moral judgments, we cannot yield to the notion of implementation without taking deep thought.2

The preceding two chapters explored the emergence and consolidation of indivisibility as revisionism, the spirit of which Moskowitz remarked “was abroad at the United Nations.”3 In his analysis of the debates leading to Resolution 32/130, he argued unapologetically that they “revealed a deep-­seated desire for revision of all traditional thinking” of the U.N. on human rights.4 Moskowitz’s analysis points to a subtlety in the meaning of the resolution that goes much deeper than the

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North versus South impasse over economic and social versus civil and political rights, in terms of the way 32/130 turned the question of implementation completely inside out.5 The Universal Declaration model, upon which the Covenants are built, envisioned that the U.N. would take the lead in further developing international human rights law and establish procedures and institutions for monitoring and implementing that law. But the real work—­meeting obligations—­was for states-­parties to give effect to or implement the rights in their own national contexts. This was the compromise between universal standards and state sovereignty. The 32/130 formulation, however, was inspired by the original position advocated by the Soviet Union in the 1940s and 1950s, now updated for a postcolonial world of developing states: since implementation of human rights is a domestic matter, the United Nations has no right to interfere in the domestic affairs of states—­a s stated in Article 2(7) of the U.N. Charter. The numerous references in 32/130 to ending colonial domination and foreign occupation are a reflection of this view: that interference in the form of ongoing colonial practices and rapacious global capitalism was, itself, a human rights violation. The violators were developed states—­ the West. According to Resolution 32/130, these practices constituted “mass and flagrant” violations of human rights, and as such, did require international action, because they threatened international peace and security and thus fell within the proper authority of the U.N. Thus, the problem of economic underdevelopment had nothing to do with the relationship between governments and their citizens—­that would be a domestic matter, and thus Article 2(7) of the U.N. Charter applied. The issue over economic and social rights was really about achieving global economic justice—­and 32/130 recast global economic injustice as a massive violation of human rights. Moskowitz concluded that Resolution 32/130 was “symptomatic of the intellectual chaos which pervades the international human rights field. . . . ​T he great task before the United Nations is to restore intellectual discipline to its work on human rights, to draw clear distinctions between fashionable fads and critical causes, and to cleanse the human rights programme of all cant and pretense” (emphasis mine).6 He counseled us to “leave the Covenants on Human Rights to work out their own historical dialectics and contribute their just share to the growth of an international human rights jurisprudence as a reliable and predictable guardian of the liberties of man.” 7 This chapter explores how Moskowitz’s wisdom found reception in both normative and institutional developments on human rights from the late-­1980s to the present day.

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From Indivisibility to Interdependency and Interrelatedness: A Pattern Forms As the right to development became a repository for the indivisibility as revision discourse, the entry into force of the Covenants led to a renewed period of institutional development and normative activity on human rights. In the case of the former, the institutions charged with monitoring implementation and receiving state-­submitted reports—­the Human Rights Committee for the ICCPR and the Economic and Social Council for the ICESCR—­began operating soon after the Covenants came in to force in 1976. The Human Rights Committee in particular began to develop a nascent jurisprudence on state obligations and duties, and later it began to hear cases alleging violations of civil and political rights. This institutional development in turn led to normative development. Scholars, practitioners, and advocates (most of whom were lawyers) finally had something to write about: state practice, emerging jurisprudence (and some case law), and institutional development. Because so much of the rhetoric of indivisibility during this period was directed at the perceived deficiencies of the ICESCR in comparison with those enumerated in the ICCPR (progressive versus immediate implementation, no real oversight committee for the ICESCR, the lack of a complaints mechanism for the ICESCR), a great deal of this scholarship was focused on the “problem” of economic, social, and cultural rights and the “flawed” nature of the ICESCR in particular. I discuss normative and institutional responses to these flaws in some detail later in the chapter. Let me first clarify what I mean when I describe the discourse on indivisibility in the contemporary era as restoration. First, I am bundling—­a s nearly everyone does—­all three concepts (indivisibility, interdependence, and interrelatedness) under the catchall adjective “indivisible,” although I believe the three adjectives convey something distinct about the questions concerning the meaning of human rights. In due course, I explain how much of the activity on human rights over the past two decades that is bundled under the umbrella of indivisibility has really been about interdependence and interrelatedness. That being said, there are many ways in which the emerging discourse of indivisibility since the late 1980s has been one of restoration. What has been restored is some sense of the promises embedded in the Universal Declaration model of human rights—­the one about which Moskowitz lamented in his assessment of General Assembly Resolution 32/130. What we see during the contemporary era is, first, restoration of a primary emphasis on state obligations to protect and promote human rights. Even while globalization has presented enormous challenges to the protection and promotion of both categories of human

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rights, the state—­rather than the “unjust” international system, global capitalism, or the West—­has returned to the center of attention as the primary agent responsible for upholding obligations and duties under the Covenants. Given the heat of the anti-­Western rhetoric embedded in Resolution 32/130, this has been a fairly remarkable achievement. This restoration of state agency and responsibility was strongly reflected in the Vienna Declaration and the Programme of Action that were adopted at the 1993 World Conference on Human Rights, which I will discuss later. A second dimension of the discourse of restoration was part and parcel of the international monitoring mechanisms that were always envisioned as indispensable to the protection and promotion of human rights. While the Covenants entered into force in 1976, an additional ten to fifteen years would pass before a sufficient amount of international jurisprudence on human rights could generate an emerging discourse around human rights and the practices of states—­fueled in no small part by the advocacy activity of local and international NGOs. I bring these developments into the discourse of restoration simply because measures of implementation were originally conceived as the third part of the original U.N. plan for a bill of rights back in 1946. That vision—­ however partial and imperfect—­took fifty years to be realized. A third dimension of this restoration was the reemergence of normative activity surrounding the core of human rights—­the grand categories of civil and political, and economic, social, and cultural rights—­especially by scholars and practitioners. This was especially true in the field of legal analysis, much of it concerned with inquiries into the extent to which economic, social, and cultural rights were justiciable and to what extent people could reasonably claim instances of violations of rights to food, housing, a minimum standard of living, and so forth. A great deal of this interpretive and analytical activity was tied to the two others above, and fed into a process of developing a violations approach to the monitoring and implementation of economic, social, and cultural rights (as per the Covenant) along the same lines as the approach in use under the ICCPR. A fourth feature of indivisibility—­again, foregrounded in the Vienna Declaration and reiterated throughout the U.N. discourse—­brings all categories of rights into universal human rights as indivisible. Thus, the human rights of women, of the child, of migrants, refugees and other vulnerable populations, and the right to development itself, are indivisible parts of core human rights. This feature of indivisibility, which I do not discuss here in any detail, is an artifact of the rhetorical flourishes evident in Resolution 32/130, yet quite distinct from those, because it still recognizes the centrality of state responsibility (with the possible

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exception of the right to development) for the protection and promotion of human rights. Here, “indivisibility” is meant to convey a sense of equality of human rights, no matter what category they belong to or how they recognize the way the modern world has fostered greater vulnerabilities for particular groups of people which should be dealt with as human rights concerns (this is especially true for migrant workers). This chapter discusses two events that have framed the contemporary discourse on indivisibility as restoration. The first was the reformulation of monitoring procedures and institutions for implementation of the ICESCR in 1985. A sudden reform effort that year led to the establishment of a semipermanent Committee with quasi-­judicial authority to interpret the terms of the Covenant and of state obligations implied or expressed in the Covenant. For many observers, the establishment of the Committee on Economic, Social and Cultural Rights (CESR) was the first step in creating a real culture of indivisibility of human rights at the United Nations, by creating an institution similar in composition and authority to the Human Rights Committee which oversees the ICCPR. The second event was the 1993 World Conference on Human Rights, held in Vienna twenty-­five years after the International Conference on Human Rights in Teheran. The Declaration and Programme of Action adopted at the Conference reflected a fairly profound shift in the rhetoric surrounding the U.N.’s human rights priorities, strongly reaffirming the universality of human rights in the face of a fairly strong relativist challenge coming especially from Asian states. In contrast to the priorities reflected in General Assembly Resolution 32/130, the consensus adopted at Vienna on the indivisibility, interdependence, and interrelatedness of human rights reflected a fairly dramatic reemphasis on state duties and obligations, no matter what their particularities, for promoting and protecting all human rights and fundamental freedoms—­a position strongly advocated by the West. The other side of the compromise was the reaffirmation at Vienna that the right to development is an inalienable right and part of indivisible human rights. The last part of the chapter examines indivisibility (which, as I discuss in the conclusion, is really interrelatedness) in the form of the conceptual emergence of a violations approach to economic, social, and cultural rights and the instantiation of that approach in the newly adopted Optional Protocol (OP) to the ICESCR. The OP will allow the CESR to receive complaints of violations of the Covenant from individuals and groups. It also includes a procedure for state-­to-­state complaints (provisions for which were included in the actual body of the ICCPR) and allows the CESR to conduct inquiries. The OP thus places economic, social, and cultural rights on the same plane as civil and political rights, which has had such a procedure (albeit, also optional) since 1978.

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Establishment of the Committee on Economic, Social and Cultural Rights For those states that advocated two Covenants in the early 1950s, the issue of appropriate implementation and monitoring mechanisms for the two categories of rights was of central importance. Because the obligations for recognizing the rights in the ICESCR were to be based on available resources, the drafters of the Covenant believed that the realization of those rights would be progressive, and that a system of self-­reporting by states on their efforts to fulfill the objects of those rights “by all appropriate means, including legislation” was far more appropriate than the system of state-­to-­state complaints and, eventually, receipt of individual petitions as enumerated in the ICCPR and its first Optional Protocol. In the early 1950s, the Polish delegate on the Commission on Human Rights described the drafting of these procedures as “the most difficult and controversial aspect of the covenant.”8 But the composition of the body that would oversee implementation of the ICESCR was far from settled. The idea of establishing an independent committee of experts to review state reports—­a s opposed to an ad hoc panel of government representatives that was finally included in the Covenant—­w as first proposed by Lebanon in 1951 (see Chapter 5). In 1954, France submitted a proposal that would have given the ICCPR’s Human Rights Committee some responsibility for examining reports under the ICESCR.9 Both these proposals were rejected. In addition, during the final debates on the Covenants immediately before their adoption in 1966, both Italy and the United States offered new proposals. Some thought the U.S. proposal to be radical, for it would have established an independent committee along the lines of that established by the terms of the Convention on the Elimination of All Forms of Racial Discrimination.10 African states in particular were opposed to this move “on the grounds that an undue proliferation of new bodies should be avoided, that the U.N. bureaucracy should not be increased, that developing countries would have difficulty finding candidates with the required qualifications, and that the committee would, in any event, not be free of political influences.”11 As I mentioned in Chapter 7, the bitterness of many African states over the then-­recent International Court of Justice decision in the Southwest Africa cases “had cast considerable doubt on the desirability of entrusting authority to ‘expert’ bodies.”12 Shortly after the Covenants came into force in 1976, the Economic and Social Council met to determine the best way to implement Articles 16–­23 (Part IV) of the ICESCR. The Council voted to establish a Sessional Working Group of governmental representatives appointed

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by the President of Council after consulting with regional groups. After four sessions (1979–­82), the Council came to the conclusion that experts were required to be on the group. So they renamed it the Sessional Working Group of Governmental Experts. Members were to be elected for three-­year terms from nominees put forth by states that were parties to the Covenant.13 According to Alston, the output of the Working Group was unsatisfactory. Examination of state reports was cursory, superficial, and politicized. There were no standards for evaluating reports, and few substantive conclusions were transmitted to the Council. There were attempts to block or impede participation by the U.N. specialized agencies in the Group, and inadequate time was allotted to the work of the Group. Among these, Alston cites the Group’s output as the most significant shortcoming.14 In a sudden and rather surprising move in 1985, the Working Group itself proposed to the Council that it be transformed into a body of independent experts, which the Council promptly endorsed “on the basis of very little discussion.”15 Alston cites three reasons for this significant shift in attitude: widespread dissatisfaction with the performance of the Group; increasing emphasis on economic, social, and cultural rights throughout the U.N. (the NIEO, the right to development, and increased emphasis on specific economic, social, and cultural rights, and the prioritization of those rights in Resolution 32/130); and a change in attitude, in particular, by Eastern European states.16 The proposal for the establishment of a Committee on Economic, Social and Cultural Rights was overwhelmingly approved by the Economic and Social Council. The United States was the only country to vote against it, ostensibly for reasons of cost.17 The United Kingdom supported the move, citing that it was “important for the Covenant to be treated with due respect, seriousness, and diligence.”18 In terms of the interdependency of rights, the creation of an independent expert committee for economic, social, and cultural rights was crucial because it sought “to rectify the imbalance in institutional supervisory arrangements between the two Covenants. As long as such an imbalance remained, interdependence as a textual doctrine would continue to fall between two realities: the reality of a skewed institutional focus in the U.N. on political rights, and the reality of intense polemic pushing for greater attention to economic rights.”19 The tasks looming before the new Committee were substantial.20 It had to restore some sense of satisfaction with the Covenant’s reporting procedure, especially in terms of laying down guidelines and recommendations for the preparation of submissions by states-­parties. In doing so, it would need to begin issuing guidelines for interpreting the

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terms of the Covenant, which as we have seen were written in such a manner as to provide a maximum amount of state flexibility within a treaty with supposedly universal applicability. The Committee members would need to establish some sense of what is meant by state obligations for complying with the treaty, given all of the qualifiers within the key implementation article of the Covenant, Article 2(1): “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-­operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” As the Committee recognized, nearly everything in this article is open to interpretation. What is the meaning of “undertake”? What constitutes a “step”? What is meant by “maximum,” “available,” and “resources”? How “progressive” is progressive, and why only “with a view” to progressive achievement? What constitutes “achievement”? What are “appropriate means”? What kinds of “legislative measures,” and why should those be more important than any other “appropriate means” (by virtue of the adverb “particularly”)? Finally, and just like any other (quasi) constitutional body, the Committee would have its work cut out in terms of defining the specific obligations of states with regard to the several rights that the Covenant enumerates. And because the Covenant does not actually declare any rights—­but rather obligates states to recognize them—­how would a right to (for example) the “highest attainable standard of mental and physical health” (Article 12) be “realized,” “protected,” and “promoted”? With these questions in mind, in 1987 the International Commission of Jurists, together with the U.N.’s International Law Commission, the Maastricht Center for Human Rights of the University of Limburg (Netherlands), and the Urban Morgan Institute for Human Rights of the University of Cincinnati College of Law, convened a meeting of experts in international law to discuss the nature and scope of states­parties’ obligations under the ICESCR. The meeting produced the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights.21 The Principles were later adopted by the United Nations Commission on Human Rights22 and would become a guiding document for the work of the Committee on Economic, Social and Cultural Rights. The Principles are divided into two sections. The first deals with the nature and scope of obligations under the Covenant. Part A contained some general observations; Part B addressed interpretive principles specifically relating to Part II of the Covenant (the enumerated rights);

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Part C dealt with Section III of the Covenant (on limitations to the rights in Part II). The second section issued guidelines for preparation and submission of reports, the role of the Committee, and relationships between the Committee and other U.N. agencies and organs. Most of the first section was devoted to guidelines for interpreting Article 2(1) of the Covenant.23 The Limburg Principles do not speak about the indivisibility or interdependency of human rights. The goal was to make clear that no matter what latitude the Covenant may provide in terms of the goals used to realize the rights it contains, 24 the Covenant is still a treaty, and therefore the obligations it creates are no different from those of any other treaty. Section I(A)4 states, “The International Covenant on Economic, Social and Cultural Rights . . . ​should, in accordance with the Vienna Convention on the Law of Treaties (Vienna, 1969), be interpreted in good faith, taking into account the object and the purpose, the ordinary meaning, the preparatory work and the relevant practice.”25 The Principles provided the foundation for subsequent jurisprudence of the Committee, which began issuing General Comments in 1989. The first was Reporting by States-­Parties, and the third (1990) was the Nature of States-­Parties’ Obligations.26 General Comments are meant to provide interpretive guidance on the various provisions of the Covenant in terms of general applicability (the obligations of the Covenant itself) or on specific enumerated rights, setting out how the Committee will interpret different aspects of each right, actions performed by states that might constitute violations of the right, and the relationships that a certain right has with other related rights in the Covenant or in other human rights treaties.

The 1993 World Conference on Human Rights This significant institutional development was further enhanced by the World Conference on Human Rights in 1993. Coming as it did at the close of the Cold War, it “invoked the spirit of our age and the realities of our time which call upon the peoples of the world and all States Members of the United Nations to rededicate themselves to the global task of promotion and protecting all human rights and fundamental freedoms so as to secure full and universal enjoyment of these rights.” 27 In its Resolution 44/156 (1989), the General Assembly proposed the possibility of a global human rights conference (without, interestingly, making any reference to Teheran), and asked the Secretary-­G eneral to solicit the views of Member States, NGOs, and other U.N. agencies on the desirability of such a conference. In 1990, the Assembly adopted

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Resolution 45/155, formally calling for a meeting, to be held in 1993. That resolution laid out the objectives of the conference: 1. to review and assess progress made and obstacles encountered in the field of human rights since the Universal Declaration; 2. to examine the relationship between development and “the enjoyment of economic, social and cultural rights, as well as civil and political rights,” and the importance of creating conditions whereby everyone may enjoy their rights “as set out in the International Covenants on Human Rights”; 28 3. to explore ways and means to improve the implementation of existing human rights standards and instruments; 4. to evaluate U.N. mechanisms and methods in the human rights field; 5. to formulate concrete recommendations for U.N. activities and mechanisms in the human rights field; and 6. to make recommendations to ensure the necessary financial and technical resources for the U.N. to implement those recommendations. The resolution also established a Preparatory Committee (PrepCom) to establish the agenda and methods of work for the conference. Resolution 46/116 (1991) also made room for regional meetings to play a role in the PrepCom process.29 During the preparatory process, it was clear that some attention would be paid to economic, social, and cultural rights in particular, especially in relation to the indivisibility and interdependency of the two grand categories of rights.30 It was also clear from the PrepCom process that the integration of development issues with human rights would also be on the agenda of the Conference. Commentators have taken a variety of views on the impact of the Conference and the Declaration and Programme of Action that it produced. Hopes were high as the Conference convened “in the celebratory context of the end of East-­West confrontation, the blossoming of civil society in Central Europe, and the knowledge that human rights had played an important role in the dissolution of the Soviet bloc.”31 However, another observer noted that while the idea of a post–Cold War human rights conference should have been “a truly historic event,” the PrepCom process ended up creating “the child nobody wanted.”32 The main Preparatory Committee haggled incessantly over the agenda of the Conference and the process stalled in 1992. The Third Committee of the General Assembly had to intervene and come up with a provisional agenda in late 1992,33 which was adopted by the General Assembly in Resolution

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47/122. Despite the challenge faced in putting it together, the agenda of the Conference was “clear, unambiguous, and not overly ambitious.”34 One of the novelties of the Vienna Conference (especially compared to the Teheran Conference) was the participation by NGOs, which held their own three-­day forum immediately preceding the official opening of the Conference. Three thousand NGO delegates participated and created five working groups35 to propose tactics for influencing the drafting of the Declaration and Programme of Action. The participation of NGOs at the World Conference on Human Rights was the continuation of a trend that began at the 1992 U.N. Conference on Environment and Development (the Earth Summit held in Rio de Janeiro). Similar NGO participation would continue at the 1994 International Conference on Population and Development (Cairo), the 1995 World Summit for Social Development (Copenhagen), and the Fourth World Conference on Women (1995, Beijing). In many respects, NGO advocates were successful in placing on the agenda of the Conference a much wider array of issues of concern especially to vulnerable populations, such as the human rights of women and migrant workers. Indeed, one of the strongest themes coming out the NGO forum was that “women’s rights are human rights.” Many mainstream human rights organizations—­such as Human Rights Watch—­ had traditionally focused their efforts on the state-­a s-­v iolator model of human rights monitoring. At Vienna, women’s rights activists argued that violence against women—­most of which occurs in private—­is a human rights violation, thus significantly challenging the state-­a s-­v iolator paradigm. By erasing this public/private distinction, women’s rights activists successfully made their case that private violations of personal integrity and personal security are still civil rights matters and entail significant and appropriate state obligations in the realm of prevention and punishment, even though the violators are not agents of the state.36 In his post-­Conference assessment, Clarence Dias contended that the biggest winners at the Conference were probably women.37 Another lasting legacy of Vienna was the consensus secured on the universality of human rights, in the face of the significant challenge especially by Asian states that argued in favor of the cultural relativism of human rights. As one observer noted, “achieving a consensus on the universality of human rights, forty-­five years after the Universal Declaration of Human Rights, was perhaps the most significant success of the World Conference.”38 The relativist challenge came first from the Asian regional PrepCom, as articulated in the Bangkok Declaration.39 Its preamble stressed, for example, “the universality, objectivity and non-­selectivity of all human rights and the need to avoid the application of double standards in the implementation of human rights and its po-

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liticization,” as well as recognizing “that the promotion of human rights should be encouraged by cooperation and consensus, and not through confrontation and the imposition of incompatible values.” Paragraph 4 of the operative section of the Bangkok Declaration discourages “any attempt to use human rights as a conditionality for extending development assistance.” Paragraph 8 recognizes “that while human rights are universal in nature, they must be considered in the context of a dynamic and evolving process of international norm-­setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds.” All of these arguments were strongly and clearly refuted in the Vienna Declaration. The Vienna Declaration and Programme of Action At its close, the Vienna Conference adopted a lengthy Declaration of principles and “what, with some poetic license can be called a plan of action.”40 The Declaration opens with a seventeen-­recital preamble and thirty-­nine paragraphs outlining a variety of principles. The Programme of Action offers proposals for dealing with a number of specific human rights problems and recommendations for various reforms within the United Nations to address those needs. As for the relationships between the two categories of rights, the following sections of the Vienna Declaration are worth noting. The preamble, for example, emphasizes that “the Universal Declaration of Human Rights . . . ​is a source of inspiration and has been the basis for the United Nations in making advances in standard setting as contained in the existing human rights instruments, in particular the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.” Among the principles on universality and indivisibility are the following (emphasis mine):   1. The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations, other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond question. . . . ​Human rights and fundamental freedoms are the birthright of all human beings; their protection and promotion is the first responsibility of governments....   5. All human rights are universal, indivisible, interdependent and in-

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terrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms . . . .   8. Democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing. Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. In the context of the above, the promotion and protection of human rights and fundamental freedoms at the national and international levels should be universal and conducted without conditions attached” . . . ​ 18. The human rights of women and of the girl-­child are an inalienable, integral and indivisible part of universal human rights.” I emphasized these key phrases of the Vienna Declaration to highlight the novelties in human rights principles coming out of the Conference. There were also several paragraphs on the right to development, reiterating again (as did earlier General Assembly resolutions) that such a right is a universal and inalienable right and an integral part of fundamental human rights (that this right is universal was a novelty). But one immediately notices that, in paragraph 8, the term “democracy” has replaced the formulation of “self-­determination” that was so prominent during the period of revisionism. The Declaration also states that while development facilitates the enjoyment of human rights, “the lack of development may not be invoked to justify the abridgement of internationally recognized human rights.” It is important to recognize that this new incarnation of the indivisibility principle does not reference the two grand categories of human rights, but rather, that all human rights are universal, indivisible, interdependent, and interrelated. The Vienna Declaration also declares that the rights of a number of groups—­women, children, disabled people, and indigenous people, for example—­are expressions of human rights. The right to development is a human right. Thus, all these rights, no matter what their expression or how they are enumerated in international instruments—­ legally binding or not—­are universal, indivisible, interdependent, and interrelated. This is one way in which the indivisibility rhetoric has been interpreted, and continues to be interpreted to this day—­especially by any number of human rights activists. It is a sentiment expressed against the criticism that such rights are somehow “special” rights.

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Vienna was an important event—­called a watershed by some—­in terms of reinvigorating and refocusing the U.N.’s human rights agenda. Its repeated references to the obligations of states for the protection and promotion are certainly a departure from the Resolution 32/130 formulation, which emphasized instead the obligations and duties of developed countries toward developing countries. Within that emphasis is also a focus on the nonlegislative and nonjudicial aspects of protecting and promoting human rights. Vienna was also important for its recommendations that human rights be mainstreamed throughout the United Nations—­that the various specialized agencies begin to consider more seriously how their work intersects with the protection and promotion of human rights. This shift in emphasis has led many of the U.N. specialized agencies, Funds, and Programmes to consider human rights approaches to their programmatic work, or at the very least, to undertake programmatic inventories to ensure that efforts to promote, for example, economic and social development (e.g., by the United Nations Development Programme) are not carried out to the detriment of human rights.41 Finally, the Programme of Action included a renewed emphasis on institutional development, including providing greater resources to the treaty-­monitoring bodies and reaching consensus for the establishment of a High Commissioner for Human Rights—­a proposal that had sit on the back burner for several decades.

Normative Development: Indivisibility as Justiciability The Vienna Declaration and Programme of Action managed to restore some real sense of seriousness to the idea that civil and political rights and economic, social, and cultural rights really are interdependent and interrelated. Following on the heels of the creation of the CESR and the pronouncements made at Vienna, a new scholarship on indivisibility (meaning interdependency and interrelatedness) began to emerge. Whereas prior to 1993 the majority of the rhetoric on the indivisibility of human rights was confined to documents (reports, resolutions, conference Declarations, etc.) emanating from the United Nations, during the 1990s the rhetoric moved into more open waters. This was due in part to the more widespread involvement of civil society organizations in promoting human rights, and especially because of the growing interconnection between human rights NGOs and development NGOs. The justiciability question with regard to economic, social, and cultural rights (and the Covenant in particular) is largely concerned with advocating in the strongest terms that no matter the history behind their development and evolution, economic, social, and cultural rights are really rights in the same way that civil and political rights are rights.

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There are two dimensions to this issue. The first dimension has been settled unequivocally by the Committee on Economic, Social and Cultural Rights: that despite all of the modifiers in Article 2(1) of the ICESCR, the Covenant nevertheless creates obligations incumbent upon governments. The Committee has gone to great lengths to demonstrate the sources and meanings of those obligations, not only in terms of the international law of treaties but also as they pertain to the enumerated rights contained in the Covenant. The second dimension of justiciability stems from the difference between the implementation clauses in the two Covenants, and the question of violations and remedies at the national level. Article 2(2) of the ICCPR requires states “to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant,” in cases where civil and political rights have not already been legally recognized. Furthermore, Article 2(3) requires states-­parties to the Covenant (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. By allowing (under certain, specific circumstances) individuals to bring complaints against a state-­party alleging a violation of his or her rights under the Covenant, the first Optional Protocol to the ICCPR provides an alternative remedy when states are unwilling or unable to provide relief—­provided, of course, that the state in question is a party to the Protocol. And while the United Nations adopted, in 2008, a similar Optional Protocol to the ICESCR (which was opened for signature in September 2009), the absence of any such violations and remedies obligations in the ICESCR provided a significant source of tension that has fueled the justiciability debate since the late 1980s. The Committee on Economic, Social and Cultural Rights’ jurisprudence on the obligations contained in the ICESCR (outlined in the Limburg Principles) has had the effect of demonstrating that economic,

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social, and cultural rights—­or certain elements within those rights—­ are in some way justiciable in the same manner as civil and political rights. In examining this development, a fundamental concern looms in the background: have economic, social, and cultural rights always been justiciable, but the international community—­or particular powerful states and interests—­failed to recognize that fact? Or has the meaning of justiciability changed since the initial drafting of the Covenants? A great deal of the critical literature on economic, social, and cultural rights from the late 1980s and early 1990s advanced the first thesis: that economic, social, and cultural rights were always justiciable, but the West in particular so watered down the ICESCR’s obligations that the effect was to treat economic, social, and cultural rights not as rights but as goals or aspirations. For example, a decade ago, Scott Leckie argued that “perhaps no other treaty has been violated in as obdurate or frequent a way as the International Covenant on Economic, Social and Cultural Rights.”42 In his view, the problems with interpreting the ICESCR had nothing to do with the nature of the rights or of the obligations in the Covenant, but rather on “perception and resolve.” He cited, for example, the “widespread refusal of governments to give active support” to elaborating an optional protocol for individual and group complaints under the Covenant.43 He blamed human rights activists as well for their obsession with violations of civil and political rights and their equally obstructionist roles and reductionist points of view with regard to the ICESCR: “The legal, conceptual, economic, and political obstacles commonly associated with the procedural aspects of enforcing economic, social and cultural rights are often overstated and tend to be couched in terms far more reflective of ideology or self-­interest than the prevailing status of law.”44 Also in the 1990s, Matthew Craven described the ICESCR as a “poor relation to the Covenant on Civil and Political Rights, suffering in particular from a weak implementation procedure.”45 As far as Kirkup and Evans are concerned, this weakness was by design, due to Western and especially American opposition to economic, social, and cultural rights. The United States, they argue, engineered the division of the Covenants, and in doing so “the United States and its allies sought to establish a clearly defined arena in which to prosecute their argument that ‘so-­called’ economic and social rights were mere aspirations.”46 Arguments such as these imply that economic and social rights were always justiciable, but only with the passing of the Cold War and other developments has this truth been revealed. And although this may seem to be a plausible argument—­g iven some of the discussions about justiciability during the drafting of economic, social, and cultural rights and the debate over the Covenants—­I believe that what has really changed is the

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character of justiciability itself rather than the political attitudes about economic and social rights. A More Robust Definition of Justiciability Traditionally, a right is said to be justiciable to the extent to which its claim can be adjudicated and remedy provided through the legal system. As Kelsen defined it, “The essential element [of a right] is the legal power bestowed upon the [individual] by the legal order to bring about, by a law suit, the execution of a sanction as a reaction against the nonfulfillment of the obligation.”47 While this definition is undeniably strict, Alston and Quinn agree that “it is frequently contended that a claim must be enforceable if it is to qualify as a human right.”48 They also argue that ultimately comparing the two Covenants on the issue of legal justiciability would in effect be an attempt to artificially mold the nature of economic, social, and cultural rights to fit a predetermined conception of rights, based on the perceived characteristics of civil and political rights.49 Nonjusticiability is often presented as a defect of rights in general and of economic and social rights in particular. 50 The assumption that justiciability is evidence of higher value, however, is to understate the many dimensions of rights in contemporary definition and practice. Although judicial remedies do usually enhance the value of a right to a right-­holder, justiciability does not exhaust the essential functions of rights. And justiciable rights are not the only kinds of rights. Even legal rights may be nonjusticiable. Constitutional rights, which are often analogous to human rights, are in many countries more directive statements of principles than justiciable legal claims. Cass Sunstein distinguishes between pragmatic and expressive constitutionalism.51 Donnelly and I prefer the labels “remedial” (which identifies a particular pragmatic process), and “directive” (which more precisely identifies the positive function of expressive provisions). The term “nonjusticiable” is a residual category and focuses too much of our attention on what is missing rather than what is clearly in evidence. The crucial point is to appreciate these different functions of rights. The Covenants have usually been thought to treat economic and social rights as expressive/directive and civil and political rights as pragmatic/remedial. But these categorical distinctions associated with the two formal human rights treaty regimes began to break down after the elaboration of the Limburg Principles. Nevertheless, during the drafting period of the 1950s and 1960s, the Covenants simply recognized that most states during that period had considerable capability to create subjective civil and political rights in

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national law for all individuals, whereas most states lacked the combination of institutions and resources needed to provide comparable legal guarantees for most economic and social rights. As Hansa Mehta of India eloquently stated during the drafting of the Covenants, “their resources and state of economic development did not permit them to implement the economic and social rights at one stroke of the pen.”52 Eleanor Roosevelt echoed this sentiment, at one time pointing out that it had taken half a century to make primary education compulsory in the United States.53 In the years following World War II, the implications of making most civil and political rights justiciable were relatively clear. In most legal systems “cruel, inhuman or degrading treatment or punishment,” for example, already had, or could readily be given, a fairly concrete meaning. Given the strong substantive commitment to these rights by almost all Western states and a number of Third World states, they were readily formulated as justiciable. In contrast, the jurisprudence of most economic and social rights was limited or nonexistent. 54 Furthermore, international human rights norms were being established precisely as liberal-­democratic welfare states were being consolidated in the West, which explains their doubt about the practical implications of justiciable economic and social rights and potentially open-­ended obligations. And as we saw in Chapters 5 and 6, the diversity of national practices also made negotiating detailed justiciable obligations extremely difficult. Add dramatic differences in resource bases, especially across regions, and it was almost impossible to imagine global recognition of anything more than a severely truncated list of seriously justiciable economic and social rights. Directive rights thus made legal and political sense. Clearly, this was not the ideal way to approach economic and social rights. For example, it would have made more sense to distinguish among relatively justiciable economic and social rights and those largely subject to progressive realization through nonjudicial means. In fact, Israel advanced this approach during the debates over the Covenants in 1951 but was unsuccessful.55 But the path chosen in the Covenants was substantively (not un)reasonable and, most importantly, politically possible. And a number of Third World states expressed similar understanding and concerns. Thus, it is naïve to argue that all it takes to make economic, social, and cultural rights justiciable is a strong belief in that proposition combined with the political will to make it so. The question of justiciability is more complex than that. What the CESR was able to articulate, through the Limburg Principles and the elaboration of a number of significant General Comments on state obligations and duties with respect to eco-

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nomic, social, and cultural rights, was a broader definition of justiciability which includes general state obligations under international law to abide by the directive nature of the substance of the ICESCR. What justiciable means has, indeed, changed. And, as we shall see below, we are now in a far better position to think about what might constitute violations of economic, social, and cultural rights, although there is still much in this that remains contested. A Violations Approach to Economic, Social, and Cultural Rights Since the 1990s, many human rights advocates have advanced an argument that if human rights are indivisible, interrelated, and interdependent, and if civil and political rights can be violated, it must be possible to identify violations of economic, social, and cultural rights. One of the first proponents of a violations approach was Audrey Chapman of the American Association for the Advancement of Science (AAAS). Her article, 56 published in 1996 and still commonly cited, reveals an interesting insight into the ways in which this approach is often considered and justified. Chapman’s project at the AAAS on science and human rights went to great lengths to develop indicators for measuring state compliance with human rights norms, under the principle of progressive realization. But, she admitted, operationalizing that standard was far too difficult to benchmark and measure. “Monitoring state compliance is a complex and exacting process with numerous political and methodological prerequisites. . . . ​Currently, neither the political will nor the methodological capabilities required for effective monitoring is present.”57 Furthermore, in contrast with civil and political rights, the rights in the ICESCR (with the exception, she maintains, of labor-­related rights) “are not grounded in significant bodies of domestic jurisprudence.”58 Given the fact that monitoring progressive implementation is “extremely complicated and requires an enormous amount of good-­quality data,”59 Chapman instead advocated “taking the victim’s side” and labeling states’ failures to protect, promote and fulfill economic, social, and cultural rights human rights violations. In her view, “the stigma of being labeled a human rights violator is one of the few ‘weapons’ available to human rights monitors. A violations approach offers the possibility of wielding that weapon more effectively and fairly.”60 The premise of this argument, however, bears some scrutiny: because data collection is complex (requiring sound definitions and benchmarks), we should instead label aspects of underdevelopment as human rights violations. It is not really clear how or why such an approach might be effective in helping people to enjoy their economic, social, and cultural rights (e.g., not suffer from underdevelopment). And un-

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fortunately Chapman offered no arguments or discussion as to what the drawbacks or limitations to such an approach might be. Nevertheless, Chapman’s article pioneered the violations approach. Soon thereafter, in 1997 (the tenth anniversary of the Limburg Principles), the International Commission of Jurists and the others from the Limburg group convened a meeting in Maastricht (the Netherlands) of more than thirty experts. The purpose of the meeting was to “elaborate on the Limburg Principles as regards the nature and scope of violations of economic, social and cultural rights and appropriate responses and remedies.”61 The Maastricht Guidelines extended the concept of state obligations that were first elaborated by the Limburg Principles. In particular, they identify state obligations to respect, protect, and fulfill (also promote) human rights: The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favourable conditions of work. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realization of such rights. Thus, the failure of States to provide essential primary health care to those in need may amount to a violation.62

The Guidelines further elaborate the nature of violations as a result of acts of commission and omission on the part of the state. An act of commission is defined as (1) a direct action by a state, or (2) actions of other entities insufficiently regulated by the state. Acts of commission include formal removal or suspension of a preexisting right, enforced discrimination, active support for measures adopted by private actors that are inconsistent with the ICESCR, and the calculated obstruction of, or halt to, the progressive realization of a right protected by the Covenant without due cause.63 Acts of omission are those arising from the failure of states to take necessary measures stemming from legal obligations created by the Covenant. Examples of such acts include the failure to take appropriate steps as required under the Covenant; failure to reform or repeal legislation that is manifestly inconsistent with an obligation of the Covenant; failure to regulate activities of individuals or groups so as to prevent them from violating economic, social, and cultural rights; and failure to implement without delay a right which a state is required by the Covenant to provide immediately.64 The Maastricht Guidelines reflect a level of seriousness toward inter-

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preting states’ obligations toward all human rights (and especially toward economic, social, and cultural rights) that had been lacking from the discourse for decades. In many ways, the Guidelines are a strong echo of the obligations and duties outlined in the Comments that accompanied the economic and social rights included in the American Law Institute’s Statement of Essential Human Rights (see Chapter 2). This is what makes them so interesting, for they assume a fairly well­organized, transparent, and well-­developed regulatory welfare state. In this sense, then, the Guidelines tell us less about the nature of economic, social, and cultural rights, or their indivisibility with civil and political rights, than they do about the nature of a properly constituted state. Despite the fairly obvious clarity of state obligations and duties expressed in the Guidelines, we have to contend with a significant contradiction resulting from the jurisprudence of the CESR. In paragraph 8 of its Third General Comment, on the nature of states-­parties’ obligations under Article 2 (1) of the ICESCR, the Committee noted that the undertaking “to take steps . . . ​by all appropriate means including particularly the adoption of legislative measures” neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of, a socialist or a capitalist system, or a mixed, centrally planned, or laissez-­faire economy, or upon any other particular approach. In this regard, the Committee reaffirms that the rights recognized in the Covenant are susceptible of realization within the context of a wide variety of economic and political systems, provided only that the interdependence and indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to the Covenant, is recognized and reflected in the system in question. The Committee also notes the relevance in this regard of other human rights and in particular the right to development.65

One of the motivations for this Comment was to counter concerns about the proliferation of market-­based approaches to welfare. “It is clear . . . ​that the relevance of the free market principle cannot be regarded as a panacea for all social problems.”66 This statement seems to have thrown out the baby of appropriate state/civil society/market arrangements with the bathwater of free market conservatism, to say nothing of the obvious contradiction inherent in stating that no particular political system is necessary “provided it is democratic” (!!). The adoption of a violations approach is very appealing to human rights and development activists and advocates because of the nature of the problem that many believe economic, social, and cultural rights are meant to address: “The idea of economic and social rights as human

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rights expresses the moral intuition that, in a world rich in resources and the accumulation of human knowledge, everyone ought to be guaranteed the basic means for sustaining life, and that those denied these are victims of a fundamental injustice. Expressing this intuition in the form of human rights both gives the deprived the strongest possible claim to that of which they are deprived, and emphasizes the duty of responsible parties to uphold or help them meet their entitlement.”67 Beetham expresses this sentiment perhaps more eloquently than most—­especially those who strongly advocate a violations approach to economic, social, and cultural rights (such as Leckie). But one notices the raison d’être of economic, social, and cultural rights: to ameliorate a situation of deprivation. The language of deprivation is powerful: to be deprived of something is to be artificially or forcefully denied access to something that belongs to someone. To be deprived is to be a victim of theft. The object of deprivation is a form of property, to which one is justly and rightly entitled. Sometimes deprivation is ameliorated by civil society (private forms of charity) or the family, especially in traditional or premodern social arrangements. But in the modern world, the welfare state has a special role in this regard: “A publicly acknowledged duty so to aid those in need [and] with whom we stand in no special relationship.”68 If people have needs, and those needs give rise to (especially) economic and social rights, there must, by definition, be an institution whose goal it is to allow people to meet their entitlement. In Beetham’s view, this logic extends beyond the state: when a state cannot meet its duty, then it becomes the duty of the international community. This is the formulation of rights, duties, and obligations that is deeply embedded in the contemporary discourse on the indivisibility of human rights, including the right to development. But we also notice how circumscribed this view of economic, social, and cultural rights is, in terms of their object. Beetham, as well as many others who hold a similar view of the importance of economic, social, and cultural rights, focus on the worst cases of human suffering, poverty, and deprivation. Most of the literature lays the groundwork for the importance of protecting and promoting economic, social, and cultural rights by grounding it in poverty statistics and the growing gap between the rich and poor. For example, the first paragraph of the Maastricht Guidelines tells us: Since the Limburg Principles were adopted in 1986, the economic and social conditions have declined at alarming rates for over 1.6 billion people, while they have advanced also at a dramatic pace for more than a quarter of the world’s population. The gap between rich and poor has doubled in the last three decades, with the poorest fifth of the world’s population receiving 1.4 percent of the global income and the richest fifth 85 percent. The impact of

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these disparities on the lives of people—­especially the poor—­is dramatic and renders the enjoyment of economic, social and cultural rights illusory for a significant portion of humanity.69

The Guidelines then acknowledge that “there has been a trend in all regions of the world to reduce the role of the state and to rely on the market to solve problems of human welfare,” often to attract investment from multinational corporations “whose wealth and power exceed that of many states.”70 Even though these facts enormously complicate identifying and addressing violations of economic, social, and cultural rights, the Guidelines continue, “it is more urgent than ever to take these rights seriously and, therefore, to deal with the accountability of governments for failure to meet their obligations in this area.”71 The Guidelines and other violations approaches to economic, social, and cultural rights describe an unsolvable problem: states in the developing world are underdeveloped and not able to meet their obligations (as described by Beetham). Thus, we should hold governments more accountable, and charge them with human rights violations when their populations suffer from economic and social deprivation. This result was precisely what led the Commission on Human Rights to reject a violations approach to economic, social, and cultural rights in 1951. Contemporary advocates for a violations approach, however, do not consider this (or they overlook it) and tell us next to nothing about what, exactly, has changed to make such an approach more likely to ameliorate deprivation. It is clear that treating problems of underdevelopment and poverty as human rights violations can be tricky business. Even some of the most ardent advocates of a violations approach to economic, social, and cultural rights occasionally acknowledge the limitations of the rhetoric. Even Scott Leckie expressed caution: “To label all displeasing situations as violations of human rights, even when the state concerned has acted in good faith and sought to rectify problematic dilemmas relating to social and economic policy, would serve only to erode the seriousness of the term. Violations language should only be utilized when a legal basis and an identifiable corresponding legal obligation exist.”72 One problem, Alston admits, is that proponents of universality and indivisibility are fearful of acknowledging particularities across the globe. Thus “the quest for a glib formula which will dispose of the issue” resulted in the universality formulation we find in the Vienna Declaration, which has had the effect of “glossing over” the debate.73 Alston also acknowledges that there is indeed an implicit hierarchy of rights, and that dealing with violations of core physical integrity rights constitutes a distinction: “We must recognize that the reflexive, often dogmatic, admonitory, and homogenous approach that is appropriate to such core violations will

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simply be less productive, and achieve less enduring results, than a more sensitive, open and flexible approach which situates the goals sought within the society in question.”74 As we see, a violations approach to economic, social, and cultural rights is deeply intertwined with the contemporary rhetoric of the indivisibility of human rights. The Maastricht Guidelines seem to have settled the question of justiciability—­at least in the abstract. The adoption of an Optional Protocol to the ICESCR takes justiciability another step further, by creating quasi-­legal mechanisms for state-­to-­state complaints; the receipt of individual and group petitions by the Committee on Economic, Social and Cultural Rights; and the initiation of Committee-­led inquiries. In other words, the OP creates a mechanism for adjudication, which is a key element of justiciability. Thus, we appear to be one step closer to indivisibility. But are we?

Identifying and Addressing Violations: The Optional Protocol to the ICESCR As Table 9.1 shows, it took nineteen years for the United Nations to debate, draft, revise, and finally adopt an Optional Protocol to the ICESCR that creates procedures allowing for state-­to-­state complaints and a procedure for receiving individual or group complaints or petitions alleging violations of economic, social, and cultural rights. The Optional Protocol was adopted by the U.N. General Assembly on the sixtieth anniversary of the adoption of the Universal Declaration—­ December 10, 2008. It was opened for signature on September 24, 2009, and by mid-­October had garnered thirty signatures. Drafts of a protocol were circulating around the U.N. for eleven years before the Commission on Human Rights finally agreed to appoint an Independent Expert to explore the issue in 2001. The following year, the Commission established an Open-­Ended Working Group, despite the Independent Expert’s initial recommendation that further examination of divergent views was necessary in order to give such a working group a proper mandate.75 The Working Group convened five annual sessions from 2004 to 2008. Its first session was devoted mainly to exploring the contours of the idea of an Optional Protocol, including a rationale for adopting a complaints procedure. The second session gave the Working Group a chance to hear the views of relevant U.N. special agencies, regional experts, and experts serving on other human rights treaty-­monitoring bodies. The Working Group met for its third session February 2006. Prior to the session, the Chairperson-­R apporteur had written an Elements Paper exploring many options that the Working Group would have to consider during that session. Thus the third session was decidedly more

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Table 9.1. ICESCR Optional Protocol Timeline Date Event 1990 1993 1993 1997

2001 2002

2002 2003 2004 2005

2006 2006 2006 2007 2007 2007 2008 2008 2008 2008 2009

Committee on Economic, Social and Cultural Rights (CESCR) begins formal discussions on an Optional Protocol (OP) CESCR submits statement and analytical paper on an OP to PrepCom of second World Conference on Human Rights (Vienna) Vienna Conference encourages the Commission on Human Rights and the CESCR to continue examination of an OP CESCR submits draft OP to Commission on Human Rights; Commission forwards to governments, NGOs, and U.N. specialized agencies for comment Commission on Human Rights appoints Independent Expert (Mr. Hatam Kotrane) to examine question of an OP Independent Expert issues first report; recommends that CESCR continue to consider the question but not to establish a working group yet; recommends also that his mandate be extended to continue to study the question Commission on Human Rights establishes Open­Ended Working Group on the Elaboration of an OP to begin work at its next session Independent Expert issues second report, recommending (reiterating?) Commission on Human Rights Resolution 2002/24 First session of the Open-­Ended Working Group Second session of the Working Group; Chairperson-­R apporteur (Catarina de Albuquerque) asked to elaborate a report offering elements of an OP to facilitate future work Chairperson-­R apporteur issues Elements Report Third session of the Working Group Human Rights Council changes mandate of Working Group to allow it to begin negotiations on a draft OP Draft OP submitted by de Albuquerque for the fourth session of the Working Group Fourth session of the Working Group Revised Draft OP and Explanatory Memorandum First half of fifth session: Revised Draft OP Second half of fifth session: Draft OP submitted to Human Rights Council Human Rights Council adopts OP; transmits to General Assembly General Assembly adopts resolution calling for OP to be open for signature and ratification OP open for signature and ratification

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Notes

A/CONF.157/PC/62/Add.5 A/CONF.157/23, para. 75 E/CN.4/1997/105

Resolution E/CN.4/2001/30 E/CN.4/2002/57

Resolution E/CN.4/2002/24 E/CN.4/2003/53 and Corr.1 Report: E/CN.4/2004/44 Report: E/CN.4/2005/52

E/CN.4/2006/WG.23/2 E/CN.4/2006/47 A/HRC/Res 1/3 A/HRC/6/WG.4/2 A/HRC/6/8 A/HRC/8/WG.4/2 A/HRC/8/WG.4/3 A/HRC/8/7 A/HRC/RES/8/2 A/RES/63/117 September 24, 2009

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focused on nuts-­and-­bolts issues, including a focus on how similar procedures function within other human rights treaty bodies. The last item on the agenda of the third session was a discussion about how to proceed. The Report of the session states that a clear majority of delegations agreed with the view that the Working Group had fulfilled its mandate and “could no longer make significant progress without engaging in a drafting exercise.”76 Australia, however, disagreed that there was any such consensus, and called for “a comprehensive and non­judgmental analysis of all options, including no optional protocol.”77 The U.S. concurred, but focused its attention on the problematic nature of giving the CESCR authority as “ultimate judge and regulator to review State policy and resource decisions based on individual complaints.”78 These states, which constituted a sizable minority, supported a proposal that would have required the Working Group to arrive at a consensus about what the OP should include and how it should be drafted before moving to a drafting exercise. Their position lost. These shades of gray may seem like semantic quibbling. It is more than that. It reveals the illusiveness and difficulty of a task that—­if we believe the hortatory rhetoric about the equality, indivisibility, and interdependence of human rights—­should have been quite simple to overcome. At the Working Group’s third session, thirty-­seven countries agreed that drafting an actual instrument—­rather than talking about it—­should be the next step. Yet even after adopting this position by consensus, several delegations that supported moving immediately to a drafting exercise began to nitpick, suggesting that those who were seeking consensus before moving to drafting were in the right. Consider these last-­minute interventions of several delegations: • On

procedure, Norway suggested that the report of the Working Group’s session should not contain any recommendations on the extension or modification of the mandate of the Working Group, or additional documents, but that those decisions should be left with the Commission (or the new Human Rights Council).79 • Egypt and Nigeria stated that the OP should not create new rights.80 • Madagascar believed that the OP should not create hierarchies of rights (presumably, by making the OP cover the entire Covenant; more on this later in the chapter).81 • The Philippines emphasized the right of states to determine their own development goals and national priorities.82 • Venezuela emphasized state responsibility for promoting and protecting human rights.83 • Norway said that the OP should accord states “a wide margin of discretion for decisions related to resource allocation.”84

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(speaking for the African states) and Venezuela stressed that the OP should be complementary to the reporting procedure and other regional and national mechanisms.85 • Delegations commented also on matters related to the scope of the rights to be covered by the OP, admissibility and standing criteria (especially the exhaustion of domestic remedies), reasonable deadlines, friendly settlement of disputes, and whether there should be an inquiry procedure.86 At its fourth and fifth sessions, the Working Group made significant progress in drafting the Optional Protocol. Bracketed text was removed, draft articles were deleted, and many of the technical aspects of the Protocol were settled, such as the competence of the CESCR to receive complaints, criteria for admissibility and standing, interim measures, friendly settlement, procedures for state-­to-­state complaints,87 an inquiry procedure, and procedures that would allow the Committee to bring problems to the attention of technical and specialized agencies of the U.N. The Chairperson-­R apporteur of the Working Group finished drafting the Protocol during the second half of its fifth session, held from March 31 to April 4, 2008. The Working Group adopted a report88 and forwarded it to the Human Rights Council, which adopted the Working Group draft with the exception of one significant change (discussed later) that was a source of considerable debate during the Working Group’s deliberations. Drafting the Optional Protocol: Echoes of a Contentious Past Many of the minor questions about the form and substance of the Optional Protocol were settled when the Working Group agreed to draft an instrument following established patterns and procedures from complaints protocols attached to other human rights instruments—­ the ICCPR, CERD, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention Against Torture (CAT). There were significant debates, however, about questions specific to economic, social, and cultural rights in general and the ICESCR in particular. For instance, Article 2 of the draft Protocol89 that was prepared prior to the first half of the fifth session spoke of “direct victims” of “significant” violations. This text had been bracketed in an earlier draft, but the brackets were removed during the fifth session. That draft read: “Communications may be submitted by or on behalf of individuals or groups of individuals . . . ​claiming to be victims of a violation.” However, the inquiry procedure is more stringent, authorizing the Committee to investigate allegations only in the case of grave

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and systematic violations of the Covenant in those states that agree to the inquiry process. A more significant problem was the question of which part or parts of the ICESCR would be covered by the individual and group complaints procedure. Two issues were involved here. The first concerned what would be the scope of the procedure itself. In earlier sessions of the Working Group, there were two views: a comprehensive approach, such as that reflected in the Optional Protocol to the ICCPR; and an a la carte approach, where states-­parties would have the opportunity to either opt in (one proposal) or opt out of coverage. The opt in approach was abandoned in favor of an approach that deals comprehensively with whole sections of the Covenant. One question was whether Parts I and II of the Covenant (on the right to self-­determination and the clauses on implementation, nondiscrimination, and limitations) was to be included. A second, perhaps more important, question was whether states-­parties would allow complaints based on any of the substantive enumerated rights covered in Part III of the Covenant (Articles 6–­15), or whether, during ratification or accession, they would be able to cherry pick which articles (or even parts of articles) would be subject to the procedure. In their final draft of the Protocol, the Working group settled on a compromise: that the Protocol would cover rights contained in Parts II and III of the Covenant but would not include the right to self­determination. The Working Group also agreed, by consensus, that all the substantive rights in Part III of the Covenant would be subject to state-­to-­state complaints, individual complaints, and the inquiry procedure. That was a fairly significant achievement, considering that most of the deliberations of the Working Group were consumed with this particular question. Nevertheless, the Human Rights Council decided to override the Working Group’s formulation, making the Optional Protocol operational in cases of alleged violations of any of the economic, social, and cultural rights set forth in the Covenant. Presumably this would include the right to self-­determination. Given all the complications I have outlined in these pages about the right to self-­determination, one can only imagine how difficult it would be to adjudicate an individual complaint alleging a violation of that right. It is conceivable, however, that when the Protocol enters into force, the Committee on Economic, Social and Cultural Rights might establish rules of procedure that interpret the phrase “any of the economic, social and cultural rights contained in the Covenant” as applying narrowly only to rights enumerated in Parts II and III of the Covenant, citing the drafting history of the Optional Protocol as the source of their jurisprudence. The Committee might conclude that, had the Council

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intended to make the entire Covenant subject to individual and group complaints, it should have made this abundantly clear when it voted to change the text of the Protocol as drafted by the Working Group. In their review of the issue of justiciability as it relates to an Optional Protocol to the ICESCR, Dennis and Stewart write that during the first session of the Working Group, there was an “evident lack of consensus about the need for, and purpose and legal effect of, a binding adjudicatory mechanism. For many proponents, there appear[ed] to be a ‘build it and they will come’ attitude.” 90 Their sober assessment of the difficult issues faced by the Working Group, thankfully, avoided the hyperbole associated with most critical examinations of the still-­unsettled questions surrounding the nature and meaning of economic, social, and cultural rights, as they are expressed in the Covenant: “Most covenant rights are, at base, claims to scarce resources, and decisions regarding their recognition and enforcement will necessarily involve questions of resource allocation.”91 They admit that some rights, or parts of rights, are indeed capable “of immediate application by judicial and other organs in many national legal systems. But just because some states provide for domestic adjudication of a given right, it does not necessarily follow that that right should be justiciable for all states in an international forum.” 92 Another thorny issue with a deep and long history is the extent to which a complaints procedure might extend to the “international assistance and cooperation” provisions of Article 2 (1). As we have seen, the move to ensure the inclusion of economic, social, and cultural rights in the then-­single draft Covenant was driven (the Soviets notwithstanding) largely by the hope that by making them rights in a legally binding document, guarantees of economic assistance from the North to the South would naturally follow. This position deepened during the debates surrounding the move to divide the Covenant. This question has been on the Working Group’s agenda, and it has repeatedly come up during the discussions—­echoing the long-­standing position attaching the realization of economic, social, and cultural rights with broader anticolonial and development goals since the early 1950s. While the rhetoric is old and has a long history, it seems to me unclear as to how an Optional Protocol could ever achieve such a result. Nevertheless, during the third session of the Working Group, eleven countries (as well as the African group) believed that the Optional Protocol should “enable the implementation of the obligation of international cooperation” and the establishment of a trust fund to assist states to meet their obligations “and implement the views of the Committee under the optional protocol.” 93 Language on this issue was bracketed until the final session of the Working Group. In the end, the Optional Protocol that the General Assembly adopted in 2008 rejects this for-

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mulation but still envisions a role for the Committee to engage the assistance and expertise of the various specialized agencies, Programmes, and Funds of the U.N. system in helping states-­parties meet their obligations. This would be a vindication of the original vision of the Covenant’s drafters. Article 14 of the Optional Protocol allows the Committee (with the consent of the state-­party concerned) to “transmit . . . ​its Views or recommendations concerning communications and inquiries that indicate a need for technical advice or assistance, along with the State party’s observations and suggestions, if any, on these views or recommendations” (emphasis mine). The article also establishes a trust fund under the auspices of the General Assembly “with a view to providing expert and technical assistance to States Parties” in order to contribute “to building national capacities” in the area of economic, social, and cultural rights “in the context of the Present Protocol.” Thus, rather than the realization of resurrected hopes from the 1950s to attach fulfillment of the imperative to protect economic, social, and cultural rights to the availability development assistance, the trust fund as it stands in the Optional Protocol is very narrowly linked to technical assistance—­and then only in ameliorating further violations (should violations be found to have occurred).

One Step Closer? The Working Group on the Optional Protocol confronted many of the same challenges and debates that have always been evident within the U.N. as it has struggled to come to terms with the meaning of economic, social, and cultural rights in the contemporary world. The rhetoric of indivisibility complicates matters by forcing us in a sense to invent a history (the unnatural division of rights into separate categories) that somehow will make it easier to make things right—­if only we had the political will. It seems evident to me that dodging deeper questions of meaning and the lessons of history do not get us closer to improving the enjoyment of people to livelihoods, decent housing, food, health care, and workplace protections (just to name a few). As Dennis and Stewart see it, “because the underlying causes for states’ failure to achieve the goals of the Covenant are most often grounded in the absence or misuse of resources, there is scant reason to believe that the Committee’s legally binding ‘decision’ in a specific case would prove any more persuasive or authoritative to a receptive government than a perceptive Concluding Observation of a periodic report or a carefully drafted General Comment.”94 As I mentioned before, more than a half-­century ago, the Indian delegate to the Commission on Human Rights, Hansa Mehta, spoke about

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how the complexities and realities of underdevelopment would always complicate the wish that countries could simply implement economic, social, and cultural rights “at one stroke of the pen.” 95 That insight is as true today as it was then. Perhaps an Optional Protocol that instantiates a violations approach to economic, social, and cultural rights will do some good. The perspective of history should make us pause, however, and ask a few key questions. The most immediate is, if the world has changed so much—­the end of the Cold War, deepening divisions between rich and poor, growing income inequality, the emergence of pandemic disease—­why was the Working Group consumed in debate over which parts of the Covenant should be subject to a complaints procedure? A second question is related to the first: have fifty years of development and its discontents really strengthened the case for a rights and violations approach to securing equitable and sustainable development? A final question relates to whether the Optional Protocol signifies our arrival one step closer to indivisibility. The regime for protecting and promoting economic, social, and cultural rights now strongly resembles that for civil and political rights. If the Covenant had never been divided, what we have now is the same, realistically, as what might have been. Is this an instantiation of true indivisibility? I would argue that it is not. It is a reflection of functional interrelatedness: now the monitoring machinery for economic, social, and cultural rights resembles the machinery for civil and political rights. This leaves us to unpack the concept of indivisibility itself and how its different meanings have unfolded historically over the past six decades.

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Chapter 10

Indivisible Human Rights: Past and Future

As we have seen, the concept of indivisible, interdependent, and interrelated human rights has had a rich and deep history. The terms have been used by diplomats, activists, scholars, and advocates to both describe and explain something about the nature of human rights themselves and the relationships between the two grand categories of rights. As I mentioned in Chapter 9, it is my conclusion that these more descriptive and analytical processes are best folded into the concepts of interdependency and interrelatedness. This leaves us to ponder the concept of indivisibility itself. As I said in Chapter 1, the word “indivisible” is powerful and evocative—­“ incapable of being divided in reality or thought.” While the words “interdependent” and “interrelated” suggest the bringing together of two or more things into a mutual harmony, they still acknowledge separateness. On the other hand, dividing something that is indivisible renders it meaningless or illogical. Clearly there is division: human rights are expressed in a variety of different international instruments, and their protection and promotion come in myriad forms. Why has this term been used? What purposes—­political, philosophical, symbolic—­are served when we invoke it? What conclusions can we draw about what indivisibility means in relation to the categories of political, civil, economic, social, and cultural rights? One conclusion we might draw is, simply, that the term has been badly used. It was a politically inspired rhetorical flourish deployed to prevent the division of the Covenant into separate international instruments—­ and nothing more than that. For skeptics, the term is simply U.N.­inspired sloganeering, meaningless gibberish that, when read in the context especially of General Assembly resolutions adopted between the late 1960s and the early 1980s, simply reflects the Third World’s majority in the General Assembly. As such, it should be dismissed along with a number of other nonsensical attempts at international political grandstanding, the New International Economic Order being one

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among many outrageous examples. I would hope that the scope of this investigation leads the reader to conclude that this account is crude and cynical. An alternative conclusion emerges from the contemporary rhetoric of indivisibility as restoration, but is deeper and more meaningful than the words “interdependency” and “interrelatedness” convey: the technical, empirical qualities of the categories of rights as expressed in international law and institutions. Indivisibility is a restorative tonic to the reality of separate Covenants that were the result of the unnatural division of human rights due to Cold War politics. In this logic, there very well could have been a single Covenant, but the West—­especially the United States—­forced the separation because it found the idea of justiciable economic and social rights unpalatable and politically untenable. Creating a separate treaty regime effectively allowed the United States to continue to exert its leadership role in the development of international human rights, but in a hegemonic manner. In other words, through the process of division, the United States effectively banished the concept of economic and social rights into a meaningless treaty with practically no teeth. The U.S. (and broadly speaking, the Western) attitude then was a Cold War move to thwart the Soviets, who took the opposite approach—­the rejection of civil and political rights. In this account, then, the indivisibility of human rights is simply an acknowledgment of the true fundamental or organic unity of rights as enumerated in the Universal Declaration. It suggests that while it would be a political impossibility to somehow reunify the two Covenants through some process of redrafting or amendment, we need to acknowledge the breach of the Declaration’s view of the organic unity of human rights. Indivisibility is the remedy for that breach. There is no doubt that the contemporary language of indivisibility reflects this kind of thinking. It invokes the continued sanctity of the Universal Declaration and seeks to fulfill its promise as a “common standard of achievement for all mankind.” It reifies the overcoming of divisions—­ideological, religious, cultural—­that the Universal Declaration embodies. The word “indivisible” is as powerful as the promise of the Declaration itself.

Indivisibility and the Universal Declaration: The Problem of Generations The preamble to General Assembly resolution 421 (V), which called for the inclusion of economic, social, and cultural rights in the draft Covenant, stated that “the Universal Declaration regards man as a person, to whom civic and political freedoms and well as economic, social

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and cultural rights indubitably belong,” and that “when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man.” This language could lead to a conclusion that it is the human person, or that individual’s needs in a modern society, that is indivisible. Or, taken another way, that the human person as a citizen (and not a subject) of the state must have his or her full range of rights protected and promoted, in order to be fully human. This gets us a bit closer to some kind of deeper reading of indivisibility. But we must go further, considering that we are talking about rights. And if we’re going to speak in the language of rights, we must talk about the state. And then we must ask ourselves if a particular ideal about the state, or between the state and civil society, is embedded within the Universal Declaration of Human Rights, which does not speak of indivisibility, interrelatedness, nor interdependency. In searching for this ideal, we face a conceptual and political problem about the history of human rights and what the Universal Declaration represented in that history: a synthesis of different generations of human rights. In 1977, Karel Vasak, then a lawyer at the United Nations Educational, Scientific and Cultural Organization (UNESCO), put forth a formulaic model for explaining the historical development of human rights—­one that remains pervasive to this day, and is often invoked by advocates of the ideal of indivisibility. Vasak envisioned three generations of rights that, by the late 1970s, had been fully recognized by the international community. Table 10.1 reflects my reading of Vasak’s formula. Vasak’s model shows four different dimensions of each of the three generations of human rights. Each is based on one of the philosophical ideals of the French Revolution: liberty, equality, and fraternity. The categories of rights that reflect these historically bound ideals are civil and political rights (from classical liberalism), economic and social rights (from socialism/Marxism), and finally, solidarity or group rights, such as the right to self-­determination, sovereignty over natural resources, and the right to development. Table 10.1. Three Generations of Human Rights 1st Generation

2nd Generation

3rd Generation

Principle reflected

Liberty

Equality

Fraternity

Types of rights

Civil/political

Economic/social

Solidarity/group

Target of claims

Antistate

Antimarket

Anticolonial

Prioritized by

First World

Second World

Third World

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These generations have taken on even more meaning when we consider who or what is considered the enemy of rights within each generation—­t he idea of course being that in this formulation, rights-­claims are an essential weapon for the achievement of freedom or to rein in coercive or exploitative institutions or actors. First­generation rights view the state as the primary violator of rights. Second-­generation rights seek to combat the power of the market. Third-­generation rights are anticolonial, and in a sense are linked to second-­generation rights in terms of the globalization of markets. Finally, each generation can be attached neatly to the priorities of the three worlds we commonly associate with Western capitalism, state­socialism, and developing states. The emergence of this framework for understanding the history of human rights the late 1970s has had lasting repercussions. It has led many to discover, in the past, the foundations for what divides and separates human rights, based on normative assumptions built into the model. But there is a significant tension between this model, which tries to show how the different generations or categories of human rights are related to one another, and the claim that somehow, despite this, human rights are still in some sense indivisible. The problem with the generations approach is that it permanently categorizes rights, not only by fixing the categories in history but also by finding within each generation incompatible philosophical sources of inspiration. Writers and commentators have long pointed out the direct lineage between the natural rights theories of classical liberalism and contemporary human rights (meaning, even if they do not specify this, civil and political rights): The concept of Human Rights, as they are called in the English text of the Universal Declaration of 1948, is of course a revival of the eighteenth-­century concept of the Rights of Man.1 Even in the twentieth century political thought and activity are determined largely by the classical doctrine of the rights of man. According to this doctrine each individual, by virtue of belonging to the gens humana has inalienable rights.2 Human rights is a twentieth-­century name for what has been traditionally known as natural rights or, in a more exhilarating phrase, the rights of man. 3 The period from the French Revolution to the Second World War was the dark age of the concept of human rights. We are now in its second age.4

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The idea of human rights, that is to say a right that every human being enjoyed simply by virtue of being human, was first elaborated in the West in the seventeenth and eighteenth centuries.5

Similarly, economic, social, and cultural rights are viewed as contemporary instantiations of the second generation of socialist rights, born of workers’ movements in the nineteenth century,6 and mostly attributed to the writings and revolutionary activities of Marx and Engels.7 Marx’s critique of political economy was directed, both implicitly and explicitly, at the systems of bourgeois law, justice, and rights that the ruling class carried from their revolt against the feudal order into the modern age—­r ights that the bourgeoisie touted as universal. Even though the inevitabilities of history meant that “the great thinkers of the eighteenth century could, no more than their predecessors, go beyond the limits imposed upon them by their epoch,”8 Engels nonetheless levied his critique of the period, culminating in the French Revolution, thus: “We know today that this kingdom of reason was nothing more than the idealised kingdom of the bourgeoisie; that this eternal Right found its realisation in bourgeois justice; that this equality reduced itself to bourgeois equality before the law; that bourgeois property was proclaimed as one of the essential rights of man; and that the government of reason, the Contrat Social of Rousseau, came into being, and only could come into being, as a democratic bourgeois republic.” 9 It is said that the genealogy of contemporary economic and social rights can be traced to concerns that the revolutionary program of social justice espoused by Marx and Engels was meant to address, such as securing a minimum standard of living.10 Thus we have the standard account of the reasons the USSR and its allies supported the ideological rhetoric of economic and social rights as more important than civil and political rights during the drafting of the Universal Declaration, and subsequently between 194811 and 1954. State socialism certainly seemed quite compatible—­and indeed reinforced the belief among its detractors—­ with the idea that the economic and social guarantees contained in the Covenant were paramount, as social goods to be provided directly by the state. Whether the language of generations is used or not, this periodization drives permanent wedges between contemporary human rights categories. One category is strictly negative; the other, positive.12 Different rights require states to be organized for entirely different ends for their differential realization. If we subscribe to the idea that (something about) human rights is truly indivisible, the generations approach confronts us with significant contradictions.

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A second problem with the generations approach as it is usually deployed has to do with the origins of economic and social rights and their relationship with civil and political rights. As they are characterized as originating within Marxism and other forms of socialism, economic and social rights are not really rights but the basic needs, secured and provided by the state as a matter of justice. What possible relationship could there be between a philosophical tradition (Marxism)13 that rejects the language of rights, and a rights-­based tradition such as liberalism? If this were not problematic enough, the generations approach also prevents us from considering the development of different rights, such as their extension to wider segments of the population, alongside the development of institutions—­most important, the modern, regulatory welfare state—­in which those expanded freedoms take on new and important meanings.

Indivisibility: Past and Future Ultimately, this parsimonious approach to the origins of human rights leads us to conclude that the interrelationship between different categories of human rights is not a feature of history but an artificial construct: the Universal Declaration itself. The drafters effectively fused classical liberalism with socialism and forged a catalogue of indivisible rights: “The Declaration appears to be a synthesis between the two great forces of individualism and collectivism.”14 “It is the synthesis of classical and social rights which, perhaps more than anything else, has given the Declaration its universal appeal.”15 “[The Declaration] is consistent with different brands of democracy and with various degrees of economic free enterprise as with different kinds of socialism.”16 The central problem with this account of indivisible human rights is the attempt to accommodate distinct and contradictory values within the same normative framework. Many accept this contradiction as entirely unproblematic: “Human rights are obligations incumbent upon the nation state. These obligations reflect the dual character of the state as both the greatest potential threat to personal dignity and the primary instrument for its realization.”17 In this formulation, civil and political rights assume the state as the enemy of right. Economic, social, and cultural rights envision a paternalistic state that provides for people’s basic needs. Accounts of the history of human rights and the various philosophical antecedents of the development of ideas and practices about rights over time still reify the division of human rights by drawing direct associations between negative civil and political rights and classical liberalism on the one hand, and positive economic, social, and cultural rights and the socialist tradition (especially of the continental

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variety associated with Marx)18 on the other. The former views the state as the enemy of right; the latter reifies the state and places the good of the community above the good of any one individual. If we accept this premise—­that the organic unity of the Universal Declaration of Human Rights is the basis for the indivisibility of human rights— ­we must accept the duality of the state as both the enemy of human freedom and the institution meant to promote human freedom. This account would lead us to an odd conclusion: a paternalist theory of the state; a premodern institution that has little to do with rights but quite a lot to do with a system of duties and obligations. This account seems to me to represent the very antithesis of the notion that the realization of human rights should be the very purpose of modern political, social, and economic institutions. We thus have to reject the idea that the indivisibility of human rights rests on a grand synthesis between liberalism and socialism. What we are left with is the need to accept an inconvenient truth that many human rights advocates are uncomfortable with: that the indivisibility of civil, political, economic, and social rights must rely on modern political and economic institutions: the liberal-­democratic welfare state and a market economy. I agree that the standard accounts of the development of rights discourses during the nineteenth century were critical to the inclusion of economic and social rights alongside civil and political rights in the twentieth. However, it is my argument that what was crucial were the relationships between expanding ideas about rights, who holds them, and their content, in concert with the development of civil society and the state into the contemporary, modern forms we are familiar with today. The development of both these institutions has changed the nature and character of liberal civil and political rights from their nascent classical form as natural rights into a more mature form that brought them into an inextricable relationship with the necessities of social life in a modern society. This view was clearly in evidence when we look closely at the immediate ancestors of the Universal Declaration that I discussed in Chapters 2 and 3. In them, we find a catalogue of civil, political, economic, and social human rights. All were developed within the context of social­democratic, welfare-­state liberalism. Those proposals were hardly socialist. They used the language of right to describe the obligations and guarantees that states must meet in order to be considered properly constituted, modern states whose end is not only to protect rights but to promote human development and freedom. In terms of economic and social rights, those proposals clearly specified that while the state may have to be a provider of last resort, its more important role was in the regulation of the market to ensure that social provision could be met through private ends and means.

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It is my conclusion that many states tried to take seriously the task of building on this ideal, but they also recognized how difficult it was to translate state duties and obligations for the promotion of human economic and social progress into rights. The division of the Covenants was clearly not about the denigration of economic and social rights. It was about the practical implications of taking on international and national obligations and being truly accountable for meeting those obligations in good faith. As the debate over one or two Covenants came to its dramatic conclusion in 1952, many developing countries looked with cynicism and suspicion upon these sober realities and the governments that tried to work pragmatically through them. And they were not without a number of good reasons for doing so—­especially the continuation of colonialism. The rhetoric of revisionism, however, was what became of the idea of indivisibility, as increasingly larger numbers of states replaced the goal of guaranteeing human rights for their citizens into a demand for development resources and a new international economic order. We should recognize that rhetorical shift for what it was, while at the same time promoting a more robust ideal of symbolically indivisible human rights that seems to have reemerged in recent decades.

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Appendix

Covenants on Human Rights: Drafting Procedures and Timeline

During the time period covered in Chapters 4–­6, the U.N. calendar was based on the convening of the General Assembly in the fall of any particular year. This meant that the work of the main bodies of the U.N. and their subsidiaries—­in this case, the Economic and Social Council and the Commission on Human Rights—­needed to be completed in advance of the opening session of the General Assembly. The Commission on Human Rights would meet during the spring, their sessions lasting between six and eight weeks. At the end of the session, the Commission would adopt a report of the session, including draft resolutions for consideration by the Economic and Social Council, the Commission’s parent body. It would also forward summary proceedings from the session and, most important, the text of the draft Covenant on Human Rights as it stood at the end of the session. It also included other proposals that had been introduced but not discussed or adopted—­draft articles, measures of implementation, proposals for oversight bodies, and so forth. Often the Commission would draft resolutions asking the General Assembly for approval of its work and to recommend a course of action for the following year. These would be taken up by the Economic and Social Council, which might adopt them relatively unchanged or draft alternatives. This would be the case in 1950. During this time, the Economic and Social Council met twice annually. At its first session, the Council would transmit whatever directives had been determined at the previous session of the General Assembly to the Commission before the Commission convened in March or April. The Council would then consider the work completed by the Commission at their second annual session held during the summer, in advance of the convening of the General Assembly in the fall. Upon receiving the report of Economic and Social Council, the Assembly would send it to its Third Committee, dealing with Humanitar-

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ian, Social and Cultural affairs, for discussion. This is where all the drafting work of General Assembly resolutions takes place. For each substantive agenda item under consideration, the Third Committee would open with a general debate and later move on to the drafting of resolutions sponsored singly or jointly by the several delegations on the Committee. For any draft resolution being discussed, delegations might seek to amend drafts under discussion or offer full alternative resolutions. In the case of competing resolutions, the Committee would typically choose one resolution to serve as the basis of discussions. Delegations offering alternatives would then have to attempt to have their views expressed through an amendment process. In some extreme cases, individual votes would be taken on something as minor as the substitution of a semicolon for a comma. Lengthy resolutions might be cobbled together after several rounds of voting on amended language, phrases, or sentences, by paragraph and by section. A final vote on the entire draft resolution would then be taken. If adopted, the draft would be sent to the plenary of the General Assembly for its final consideration. One last note on procedure is worth pointing out in some detail. During the drafting of the Covenants, the General Assembly would often instruct the Commission on Human Rights (through the Economic and Social Council) to take into consideration the views of Member States and various specialized agencies on the draft Covenant. This introduced another level of review into the process. In the various resolutions adopted by the General Assembly on the Covenants from 1948 to 1952, the Secretary-­G eneral would instruct Member States to forward comments to the Secretariat, which would then compile them in a report and transmit them to the Economic and Social Council, which would forward them to the Commission. Thus, at many points during this period, the Commission would have to consider (1) the actual draft before them; (2) the instructions of the General Assembly, including (3) the views expressed during sessions of the Third Committee and the General Assembly plenary, and (4) the views of Member States and the specialized agencies received post-­resolution. One reason the Commission was able to draft the Universal Declaration of Human Rights so quickly in 1947–­48 (as Morsink points out) was that the Commission met four times during this period, rather than twice, and was able to secure the views of governments during the drafting process directly, without taking the drafts through the normal process. Thus, by the time the draft Declaration arrived before the Third Committee, the draft had already been sufficiently reviewed and vetted. Had that process been as it was during the drafting of the Covenant, the Universal Declaration of Human Rights might not have been approved until 1952, if at all, given the climate of the debates as I recount them here.

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Table A-­1. The Covenants: Timeline Date

Body

Session

Actions

September– December 1948

General Assembly

Third

Universal Declaration of Human Rights (Resolution 217 (III)) adopted

February–March 1949

ECOSOC1

Eighth

Section E of General Assembly Resolution 217 (III) (on preparation of draft Covenant) transmitted to Commission (Resolution 191 (VIII))

May–June 1949

Commission on Human Rights

Fifth

Drafting of Covenant resumes

July–August 1949

ECOSOC

Ninth

None

September– December 1949

General Assembly

Fourth

None

February–March 1950

ECOSOC

Tenth

None

March–May 1950

Commission on Human Rights

Sixth

First draft Covenant completed; sent to ECOSOC

July–August 1950

ECOSOC

Eleventh

Resolution 303 (XI) adopted

September– December 1950

General Assembly

Fifth

Resolution 421 (V) adopted

February–March 1951

ECOSOC

Twelfth

Instructions from 421 (V) transmitted to Commission (Resolution 349 (XII)

April–May 1951

Commission on Human Rights

Seventh

Economic, social, and cultural rights included in draft Covenant

July–September 1951

ECOSOC

Thirteenth

Resolution 384 (XIII) asks General Assembly for reconsideration of 421 (V)

December 1951–February 1952

General Assembly

Sixth

Resolution 543 (VI) adopted, asking for separate Covenants

24 March 1952

ECOSOC

S-­1 (Special Session)

Instructions transmitted to Commission in General Assembly Resolution 543 (VI)

Spring 1952, 1953, 1954

Commission on Human Rights

Eighth, Ninth, Tenth

Drafting of two Covenants completed

1

Economic and Social Council.

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Notes

Chapter 1 1. These would include the travaux preparatoires of the ICESCR, declarations of World Conferences (such as those in Teheran in 1968 and Vienna in 1993), interpretive statements made by recognized experts such as the International Commission of Jurists (“The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20, no. 3 [1998]). See also Victor Dankwa, Cees Flinterman, and Scott Leckie, “Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20, no. 3 (1998), and the General Comments and other statements issued by the Committee on Economic, Social and Cultural Rights, which monitors states-­parties’ compliance with the ICESCR. 2. Craig Scott, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights,” Osgoode Hall Law Journal 27 (1989) (see especially footnote 26, p. 779). While Scott acknowledges that the terms are used interchangeably, he notes a preference for the singular term “interdependent,” “although this observation is only impressionistic.” He cites Van Boven’s sole use of the word “indivisible,” in “Distinguishing Criteria of Human Rights,” in The International Dimensions of Human Rights, ed. Karel Vasak and Philip Alston (Westport, Conn.: Greenwood Press, 1982). 3. James Nickel, “Rethinking Indivisibility: Towards a Theory of Supporting Relations between Rights,” Human Rights Quarterly 30, no. 4 (2008): 986. 4. Scott, “The Interdependence and Permeability of Human Rights Norms.” 5. �������������������������������������������������������������������������� Philip Alston provides a thorough account of the history and factors leading to the creation of the Committee in 1987. See “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, no. 3 (1987). 6. Philip Alston and Gerard Quinn, “The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 9 (1987): 157–­58. 7. Many recognize that a focus on the immediacy of obligations under the ICCPR was a bit of a red herring. In many cases, political, legal, and judicial reforms are necessary to give effect to civil and especially political rights. 8. Robert E. Robertson, “Measuring State Compliance with the Obligation to Devote the ‘Maximum Available Resources’ to Realizing Economic, Social and Cultural Rights,” Human Rights Quarterly 16 (1994): 694. 9. ��������������������������������������������������������������������������� This literature is quite extensive, and includes Alston and Quinn, “The Nature and Scope of States Parties’ Obligations under the International Covenant

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220   Notes to Pages 7–11

on Economic, Social and Cultural Rights”; the International Law Commission/ International Commission of Jurists, “The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, no. 2 (1987); Scott, “The Interdependence and Permeability of Human Rights Norms”; Dominic McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, ed. Ian Brownlie, Oxford Monographs in International Law (New York: Oxford University Press, 1991); David Beetham, “What Future for Economic and Social Rights?” Political Studies 43 (1995); Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (London: Oxford University Press, 1995); Mario Gomez, “Social Economic Rights and Human Rights Commissions,” Human Rights Quarterly 17 (1995); Pieter van Dijk, “A Common Standard of Achievement: About Validity and Uniform Interpretation of International Human Rights Norms,” Netherlands Quarterly of Human Rights 2 (1995); Audrey R. Chapman, “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 18 (1996); George Kent, “Realizing International Children’s Rights through Implementation of National Law,” International Journal of Children’s Rights 5 (1997); James M. McCormick and Neil J. Mitchell, “Human Rights Violations, Umbrella Concepts, and Empirical Analysis,” World Politics 49, no. 4 (1997); Dankwa, Flinterman, and Leckie, “Commentary to the Maastricht Guidelines”; Scott Leckie, “Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20 (1998); and Craig Scott, “Reaching Beyond (without Abandoning) the Category of ‘Economic, Social and Cultural Rights,’” Human Rights Quarterly 21, no. 3 (1999). 10. Proclamation of Teheran, Final Act of the International Conference on Human Rights (Teheran, April 22 to May 13, 1968), U.N. Doc. A/CONF.32/41, 3, para. 13. 11. Vienna ������������������������������������������������������������������� Declaration and Program of Action (adopted by the World Conference on Human Rights on June 25, 1993), U.N. Doc. A/CONF.157/23 (July 12, 1993), para. 5. 12. See especially Chapman, “A ‘Violations Approach’”; Leckie, “Another Step Towards Indivisibility”; International Commission of Jurists, “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights”; and Dankwa, Flinterman, and Leckie, “Commentary to the Maastricht Guidelines.” 13. The best account of this history is told by Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999). See also Ashlid Samnoy, “Human Rights as International Consensus: The Making of the Universal Declaration of Human Rights, 1945–­1948” (Bergen: Chr. Michelsen Institute [CMI], 1993). 14. Morsink, The Universal Declaration of Human Rights. Chapter 2 1. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 238. 2. Ibid. 3. Ibid., 232. Normand and Zaidi offer a more cynical, anti-­Western account. Roger Normand and Sarah Zaidi, Human Rights at the UN: The Political History of

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Notes to Pages 11–17   221

Universal Justice, ed. Thomas Weiss, United Nations Intellectual History Project Series (Bloomington: Indiana University Press, 2007), 166–­76. 4. See, ����������������������������������������������������������������������� for example, Ashlid Samnoy, “Human Rights as International Consensus: The Making of the Universal Declaration of Human Rights, 1945–­1948” (Bergen: Chr. Michelsen Institute [CMI], 1993). 5. Jack Donnelly and I have challenged this view. Daniel J. Whelan and Jack Donnelly, “The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight,” Human Rights Quarterly 29, no. 4 (2007). See also Alex Kirkup and Tony Evans, “The Myth of Western Opposition to Economic, Social and Cultural Rights? A Reply to Whelan and Donnelly,” Human Rights Quarterly 31, no. 1 (2009); Daniel J. Whelan and Jack Donnelly, “Yes, a Myth: A Reply to Kirkup and Evans,” Human Rights Quarterly 31, no. 1 (2009); Susan L. Kang, “The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly,” Human Rights Quarterly 31, no. 4 (2009); Daniel J. Whelan and Jack Donnelly, “The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang,” Human Rights Quarterly 31, no. 4 (2009). 6. Louis B. Sohn, “How American International Lawyers Prepared for the San Francisco Bill of Rights,” American Journal of International Law 89, no. 3 (1995): 547. 7. John P. Humphrey, Human Rights and the United Nations: A Great Adventure (Dobbs Ferry, N.Y.: Transnational, 1984), 32. 8. Sohn, �������������������������������������������������������������������� “How American International Lawyers Prepared for the San Francisco Bill of Rights,” 546–­47. 9. Ibid., 547. 10. Ibid., 548, note 35. 11. Ibid., 548. 12. Morsink, The Universal Declaration of Human Rights. 13. Sohn, �������������������������������������������������������������������� “How American International Lawyers Prepared for the San Francisco Bill of Rights,” 548. 14. Ibid., 549. 15. Ibid. 16. Ibid. 17. Ibid., 550. 18. American Law Institute, “Statement of Essential Human Rights,” Annals of the American Academy of Political and Social Science 243 (1946): 18. 19. Ibid., 18–­19. 20. Ibid., 19. 21. Ibid., 22. 22. Ibid. 23. Ibid., 23. 24. Ibid. This phrase “useful work” is commonly found in these pre-­U.N. proposals. Sometimes the word “socially” is added before “useful.” The ALI explains that the phrase “excludes mere relief work which has no positive social value from being regarded as an adequate fulfillment of the duty of the state.” 25. Ibid. 26. Ibid., 24. 27. Ibid. 28. Ibid., 25. 29. Ibid. 30. Ibid.

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222   Notes to Pages 18–23

31. William Draper Lewis, “Human Rights in England and the United States,” Annals of the American Academy of Political and Social Science 243 (1946). 32. Ibid., 66. 33. Charles E. Merriam, “The Content of an International Bill of Rights,” Annals of the American Academy of Political and Social Science 243 (1946): 13. 34. Ibid., 13, italics mine. 35. Ibid., 14. 36. Ibid. 37. C. Wilfred Jenks, “The Five Economic and Social Rights,” Annals of the American Academy of Political and Social Science 243 (1946): 41. The fact that any rights discourse is a product of its own time and circumstance is exemplified by Jenks’s insistence that the state’s obligation to provide equal access to educational facilities does not “in all circumstances debar the separation of races or sexes in different schools, subject to adequate facilities being made available to each differentiated group.” 38. Ibid. 39. Ibid. 40. Ibid., 41–­42. 41. Ibid., 41. 42. Ibid., 42. 43. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004), 28–­29. 44. John R. Ellingston, “The Right to Work,” Annals of the American Academy of Political and Social Science 243 (1946): 28. 45. Ibid. 46. Ibid., 29. 47. Ibid., 30. 48. Indeed, this is precisely the view of Amnesty International’s William Schulz, with the exception perhaps that Schulz’s analysis deals primarily with the situation especially of American companies that move operations overseas where they believe they can benefit from limitations on (or the outright absence of) labor rights. William Schulz, In Our Own Best Interest: How Defending Human Rights Benefits Us All (Boston: Beacon Press, 2001), 66–­104. 49. Ellingston, “The Right to Work,” 33. 50. Jenks, “The Five Economic and Social Rights,” 43. 51. Ibid., 44. 52. Ibid., 43. 53. Ibid., 44. 54. Ibid., 45. 55. Ibid. 56. Ellingston, “The Right to Work,” 28. 57. U.N. Division of Human Rights, “Draft Outline of an International Bill of Human Rights (Prepared by the Division of Human Rights of the Secretariat),” in Yearbook on Human Rights for 1947, ed. United Nations (New York: United Nations, 1947), 484. 58. Ibid. 59. Morsink, The Universal Declaration of Human Rights. 60. In the comment to this article, the ALI states that “the phrase ‘other conditions of work’ includes such matters as rest periods, holidays, and protections against accident and disease incidental to work.” American Law Institute, “Statement of Essential Human Rights,” 24. The Secretariat Outline includes a

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Notes to Pages 24–30   223

separate article (43) stating, “Every one has the right to a fair share of rest and leisure.” U.N. Division of Human Rights, “Draft Outline of an International Bill of Human Rights (Prepared by the Division of Human Rights of the Secretariat),” 486. 61. Sunstein, The Second Bill of Rights,154. 62. Ibid., 75. 63. Franklin D. Roosevelt, “‘We Are Fighting to Save a Great and Precious Form of Government for Ourselves and the World’—­Acceptance of the Re-­Nomination for the Presidency, Philadelphia, Pa. June 27, 1936,” in The Public Papers and Addresses of Franklin D. Roosevelt (New York: Random House, 1938), 231. 64. Lawrence W. Levine and Cornelia R. Levine, The People and the President: America’s Conversation with FDR (Boston: Beacon Press, 2002), 516–­17. 65. Franklin D. Roosevelt, “‘Unless There Is Security Here at Home, There Cannot Be Lasting Peace in the World’—­Message to the Congress on the State of the Union. January 11, 1944,” in Public Papers and Addresses of Franklin D. Roosevelt (New York: Harper and Brothers, 1950), 41. 66. Ibid. 67. Levine and Levine, The People and the President, 525–­38. 68. Patrick D. Reagan, Designing a New America: The Origins of New Deal Planning, 1890–­1943 (Amherst: University of Massachusetts Press, 1999), 218. 69. Ibid., 219. 70. Ibid., 222. 71. Ibid., 239. 72. Roosevelt, “‘Unless There Is Security Here at Home,” 372. 73. United States National Resources Planning Board, “National Resources Development Report for 1943: Part I. Post-­War Plan and Program” (Washington, D.C.: National Resources Planning Board, 1943), 2. 74. Ibid., 1. 75. Ibid. 76. United States National Resources Planning Board, “National Resources Development Report for 1942” (Washington D.C.: National Resources Planning Board, 1942), 3. 77. Ibid. 78. Ibid. 79. Sunstein, The Second Bill of Rights, 67. 80. James Chace, 1912: Wilson, Roosevelt, Taft & Debs—­the Election That Changed the Country (New York: Simon and Schuster, 2004), 58–­59. Roosevelt formed the party when he left the Republicans to run against Democrat Woodrow Wilson, Republican Howard Taft, and Socialist Eugene V. Debs in 1912. 81. Franklin D. Roosevelt, “‘New Conditions Impose New Requirements upon Government and Those Who Conduct Government’—­C ampaign Address on Progressive Government at the Commonwealth Club. San Francisco, Calif. September 23, 1932,” in The Public Papers and Addresses of Franklin D. Roosevelt (New York: Russell and Russell, 1938), 748. 82. Ibid., 753. 83. Ibid., 755. 84. Ibid., 754. 85. Ibid. 86. Ibid. 87. �������������������������������������������������������������������� Sohn, “How American International Lawyers Prepared for the San Francisco Bill of Rights,” 548.

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224   Notes to Pages 32–38

Chapter 3 1. ������������������������������������������������������������������������ Donnelly and I have challenged this view. Daniel J. Whelan and Jack Donnelly, “The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight,” Human Rights Quarterly 29, no. 4 (2007). 2. So-­called because it took place at the Onwentsia Country Club. 3. Franklin D. Roosevelt, “The Annual Message to the Congress. January 6, 1941,” in Public Papers and Addresses of Franklin D. Roosevelt (London: Macmillan, 1941), 672. 4. ������������������������������������������������������������������������� Franklin D. Roosevelt, “The Atlantic Charter. Official Statement on Meeting between the President and Prime Minister Churchill. August 14, 1941,” in Public Papers and Addresses of Franklin D. Roosevelt (New York: Harper and Brothers, 1950), 315. 5. Quincy Wright, “Human Rights and World Order,” International Conciliation 389 (1943): 240–­41. 6. Roosevelt, “The Annual Message to the Congress. January 6, 1941,” 671. 7. World Citizens Association, “Proceedings of the Onwentsia Conference” (paper presented at the Onwentsia Conference, Onwentsia County Club, Wake Forest, Ill., 1941), 48–­50. 8. Clearly he meant Francisco de Vitoria. 9. World Citizens Association, “Proceedings of the Onwentsia Conference,” 53. 10. Ibid., 60. 11. Ibid., 61. 12. Ralph Barton Perry, “Universities Committee on Post-­War International Problems: Final Report on the World of the Committee, 1942–­1945,” in Universities Committee on Post-­War International Problems: Final Report, Problem Analyses, Summaries of Reports of Cooperating Groups (Boston: Universities Committee on Post-­War International Problems, 1945), 11. 13. The work of the Universities Committee is also summarized by Charles A. Baylis, “Towards an International Bill of Rights,” Public Opinion Quarterly 8, no. 2 (1944). 14. Universities ���������������������������������������������������������������������� Committee on Post-­War International Problems, “Universities Committee on Post-­War International Problems, Summaries of Reports of Cooperating Groups, X—­Protection by International Action of the Freedom of the Individual within the State,” International Conciliation, no. 405 (1944). 15. Ibid., 712. See also Baylis, “Towards an International Bill of Rights,” 245–­ 46. 16. Quincy Wright, “Problem X: The Protection by International Action of the Freedom of the Individual within the State,” in Universities Committee on Post­War International Problems: Final Report on the Work of the Committee, 1942–­1945 (Boston: Universities Committee on Post-­War International Problems, 1943), 14. 17. Universities Committee on Post-­War International Problems, “Universities Committee on Post-­War International Problems,” 714–­16. 18. Ibid., 716–­17. 19. Ibid., 717. 20. Commission to Study the Organization of Peace, Building Peace: Reports of the Commission to Study the Organization of Peace, 1939–­1972, vol. 1 (Metuchen, N.J.: Scarecrow Press, Inc., 1973), xi. 21. Ibid., xii.

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Notes to Pages 38–40   225

22. Ibid. 23. ��������������������������������������������������������������������������� The focus of the entire fourth report is reflected in the title: “Fundamentals of the International Organization.” Part I was titled “Security and World Organization.” Part II was titled “The Economic Organization of Welfare.” Both were issued in November 1943. 24. Commission to Study the Organization of Peace, Building Peace, 71–­72. 25. In this regard, the Commission specifically mentioned the 1929 statement of the Institut de Droit International and the 1936 declaration of the Ligue des Droits de l’Homme, both of which are covered later in this chapter. 26. Commission to Study the Organization of Peace, Building Peace, 181. 27. Commission to Study the Organization of Peace, Building Peace: Reports of the Commission to Study the Organization of Peace, 1939–­1972, vol. 2 (Metuchen, N.J.: Scarecrow Press, 1973), 890. But not, of course, of all opinion. During the San Francisco Conference, certain sections of the American Bar Association were quite suspicious of the idea of human rights, seeing them as code for “radical and collectivist proposals.” See “Progress in the San Francisco Conference,” American Bar Association Journal 31 (1945): 280. The ABA’s ire would be significantly provoked during the period from 1947 to 1951, as the U.S. involvement with the Commission on Human Rights was equated with “backdoor communism.” See Frank E. Holman, “An ‘International Bill of Rights’: Proposals Have Dangerous Implications for U.S.,” American Bar Association Journal 34 (1948); “Human Rights on Pink Paper,” American Affairs 11 (1949); “International Proposals Affecting So-­C alled Human Rights,” Law & Contemporary Problems 14 (1949); and “Treaty Law-­Making: A Blank Check for Writing a New Constitution,” American Bar Association Journal 36 (1950). See also David A. Simmons, “Man’s One Fundamental Right: To Be Let Alone,” American Bar Association Journal 36 (1950); William Fleming, “Danger to America: The Draft Covenant on Human Rights (Part I),” American Bar Association Journal 37, no. 10 (1951); and William Fleming, “Danger to America: The Draft Covenant on Human Rights (Part II),” American Bar Association Journal 37, no. 11 (1951). 28. Commission to Study the Organization of Peace, Building Peace, vol. 2, 892. The idea of a “larger freedom” is articulated by the fifth recital of the Universal Declaration of Human Rights: “Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, . . .” 29. This language echoes Roosevelt’s 1944 State of the Union address: “People who are hungry and out of a job are the stuff of which dictatorships are made.” Franklin D. Roosevelt, “‘Unless There Is Security Here at Home, There Cannot Be Lasting Peace in the World’—­Message to the Congress on the State of the Union. January 11, 1944,” in Public Papers and Addresses of Franklin D. Roosevelt (New York: Harper and Brothers, 1950). 30. Commission to Study the Organization of Peace, Building Peace, vol. 2, 892–­93. 31. Ibid., 897. 32. Christopher D. O’Sullivan, Sumner Welles, Postwar Planning, and the Quest for A New World Order, 1937–­1943 (New York: Columbia University Press, 2008), 223–­32. 33. United States Department of State, Postwar Foreign Policy Preparation: 1939–­ 1945 (Washington, D.C.: U.S. Department of State, 1949), 63.

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226   Notes to Pages 40–46

34. Among ������������������������������������������������������������������ these were Norman H. Davis (President of the Council on Foreign Relations and Chairman of the American Red Cross), Hamilton Fish Armstrong (Editor of Foreign Affairs), Isaiah Bowman (President of Johns Hopkins University), and Anne O’Hare McCormick (editorial staff writer and foreign affairs columnist for the New York Times). 35. United States Department of State, Postwar Foreign Policy Preparation: 1939–­ 1945, 79. 36. Ibid., 93. 37. Cordell Hull, “The War and Human Freedom—­R adio Address Delivered on July 23,1942,” US State Department Bulletin 7 (1942): 644. 38. United States Department of State, Postwar Foreign Policy Preparation: 1939–­ 1945, 115. 39. Ibid., 483. 40. Ibid. 41. Ibid., �������������������������������������������������������������������������� 484. This Article also stipulates, “Persons receiving public education shall not be obliged to participate in religious instruction in a faith to which they or their parents do not adhere.” 42. Ruth B. Russell, A History of the United Nations Charter (Washington, D.C.: Brookings Institution, 1958), 327. 43. Ibid. 44. Ibid., 328. 45. Jan Herman Burgers, “The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century,” Human Rights Quarterly 14 (1992). 46. H. G. Wells, The New World Order (New York: Knopf, 1940), 9. 47. Ibid., 33. 48. Ibid., 35. 49. Ibid., 48. 50. He takes issue in particular with Clarence Streit’s proposals (in Union Now: A Proposal for a Federal Union of the Democracies of the North Atlantic [New York: Harper and Brothers, 1939]), which called for a federal union of North Atlantic democracies. Wells’s rejection is based largely on his contention that Streit’s “democracies” were nothing of the sort. 51. Wells, The New World Order, 89. 52. Ibid., 104. 53. Ibid. 54. Ibid., 105. 55. Ibid. 56. Ibid., 105–­6. 57. Ibid., 106. 58. Ibid. 59. Ibid. 60. Ibid. 61. Ibid., 106–­7. 62. Ibid., 107–­8. 63. Ibid., 107. 64. Ibid., 107–­8. 65. Ibid., 108. 66. Ibid. 67. Ibid., 109. 68. Ibid., 110.

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Notes to Pages 47–55   227

69. Free World Editors, “Free World Recommends a Charter for the United Nations,” Free World 9, no. 5 (1945): 80. 70. Ibid. 71. George A. Finch, “The International Rights of Man,” American Journal of International Law 35, no. 4 (1941): 663. 72. �������������������������������������������������������������������� Georges Clemenceau, “Letter Addressed to M. Paderewski by the President of the Conference Transmitting to Him the Treaty to Be Signed by Poland under Article 93 of the Treaty of Peace with Germany,” American Journal of International Law 13 (supplement), no. 4 (1919): 417, italics mine. 73. Ibid., 418. 74. Ibid., 420. 75. Ibid. 76. Finch, “The International Rights of Man,” 663. 77. Ibid., 664. 78. Ibid. 79. Ibid. 80. Ibid., 664 81. Philip Marshall Brown, “The New York Session of the Institut de Droit International,” American Journal of International Law 24, no. 1 (1930): 127. 82. Louis B. Sohn, “How American International Lawyers Prepared for the San Francisco Bill of Rights,” American Journal of International Law 89, no. 3 (1995): 541. 83. Ibid., 542. 84. Ibid. 85. Ibid., 543. 86. Ibid. 87. Ibid., 543–­4 4. 88. Ibid., 544. 89. Ibid. 90. Ibid. 91. James Brown Scott, “The Two Institutes of International Law,” American Journal of International Law 26, no. 1 (1932): 93. 92. League of Nations, “Official Journal, Special Supplement 115, Records of the Fourteenth Ordinary Session of the League of Nations” (League of Nations, 1933), 51. 93. Ibid., 56–­57. 94. League of Nations, “Official Journal, Special Supplement 120, Records of the Fourteenth Ordinary Session of the League of Nations” (League of Nations, 1933), 72. 95. James Brown Scott, “The American Institute of International Law,” American Journal of International Law 10, no. 1 (1916): 122. 96. Ibid., 124. 97. Ibid., 125–­26. 98. James T. Shotwell, “The Idea of Human Rights,” International Conciliation, no. 426 (1946): 553. 99. Ibid., 554. 100. Ibid. 101. Jack Donnelly, Universal Human Rights in Theory and Practice, 2nd ed. (Ithaca: Cornell University Press, 2003), 173. 102. H. Lauterpacht, An International Bill of the Rights of Man (New York: Columbia University Press, 1945), 90, italics mine.

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228   Notes to Pages 55–63

103. Ibid., 9. 104. Ibid., 75. 105. Ibid., 76. 106. Ibid. 107. Ibid., 72. 108. Ibid., 91, italics mine. 109. Ibid., 156. 110. Ibid., 161–­62. 111. Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 15–­17. 112. Ibid., 19. Chapter 4 1. U.N. Economic and Social Council Resolution 1/5 (February 16, 1946), U.N. Doc. E/20; UNESCOR first session, 163–­64. 2. See, e.g., Moses Moskowitz, Human Rights and World Order (New York: Oceana, 1958), 59–­60; A. Glenn Mower, International Cooperation for Social Justice: Global and Regional Protection of Economic/Social Rights (Westport, Conn.: Greenwood Press, 1985), 17–­18; Myres S. McDougal and Gerhard Bebr, “Human Rights in the United Nations,” American Journal of International Law 58, no. 3 (1964): 620; James Frederick Green, The United Nations and Human Rights (Washington, D.C.: Brookings Institution, 1956), 38–­42; and Vratislav Pechota, “The Development of the Covenant on Civil and Political Rights,” in The International Bill of Rights: The Covenant on Civil and Political Rights, ed. Louis Henkin (New York: Columbia University Press, 1981), 41–­42. 3. This was the phrasing Ronald Reagan used in his June 1982 address to the British House of Commons—­popularly known as the “Evil Empire” speech. Its use was ironically taken from Leon Trotsky’s famous words, issued to the Mensheviks who walked out of the Second Congress of Soviets during the October Revolution: “You are pitiful isolated individuals; you are bankrupts; your role is played out. Go where you belong from now on—­into the dustbin of history!” Reagan’s speech can be found at http://www.reagan.utexas.edu/archives/ speeches/1982/60882a.htm (accessed October 2009). 4. Michael Freeman, Human Rights: An Interdisciplinary Approach (Malden, Mass.: Blackwell, 2002), 43. 5. Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 247. 6. Chisanga Puta-­Chekwe and Nora Flood, “From Division to Integration: Economic, Social, and Cultural Rights as Basic Human Rights,” in Giving Meaning to Economic, Social and Cultural Rights, ed. Isfahan Merali and Valerie Oosterveld (Philadelphia: University of Pennsylvania Press, 2001), 37, 41. 7. Shelley Wright, International Human Rights, Decolonisation and Globalisation (New York: Routledge, 2001), 21. For this passage, Wright incorrectly cites Jerome J. Shestack, “The Jurisprudence of Human Rights,” in Human Rights in International Law: Legal and Policy Issues, ed. Theodor Meron (New York: Oxford University Press, 1984), 70–­71, whose piece says no such thing. 8. Diane Otto, “Defending Women’s Economic and Social Rights: Some Thoughts on Indivisibility and a New Standard of Equality,” in Giving Meaning to Economic, Social, and Cultural Rights, ed. Isfahan Merali and Valerie Oosterveld,

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Notes to Pages 63–67   229

Pennsylvania Studies in Human Rights (Philadelphia: University of Pennsylvania Press, 2001), 54–­55. 9. Antonio A. Cancado Trindade, “The Interdependence of All Human Rights—­Obstacles and Challenges to Their Implementation,” International Social Science Journal 50, no. 158 (1998): 513. 10. Isfahan Merali and Valerie Oosterveld, eds., Giving Meaning to Economic, Social and Cultural Rights (Philadelphia: University of Pennsylvania Press, 2001), 1. Of course, the words “indivisible” and “interdependent” do not appear in the Universal Declaration of Human Rights, nor were they ever articulated by the General Assembly in 1948. The words “interdependent” and “interconnected” (but not “indivisible”) first appeared in its Resolution 421 (V) in 1950. 11. Online at http://www.nutrition.uio.no/iprfd/Encounterdocuments/ DocO1–­G2.html (accessed 10/16/2005). 12. Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (London: Oxford University Press, 1995), 8–­9. 13. Ibid., 16. 14. Louis Henkin, ed., The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), 10. 15. Ibid. 16. Craig Scott, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights,” Osgoode Hall Law Journal 27 (1989): 794–­96. The “pragmatic” category included arguments about delaying the ratification of the covenant(s); the need for more time to draft economic, social, and cultural rights; the desire for universal adherence; duplication of effort with the U.N. specialized agencies, and what I call “universality by division”—­t he idea that a split would garner more total ratifications than would have occurred with a single instrument. 17. Ibid., 797. 18. U.N. Doc. E/CN.4/SR.89, 6. 19. U.N. Doc. E/CN.4/SR.89, 17. 20. U.N. Doc. E/CN.4/SR.89, 19. 21. The vote was 7–­0 –­6. U.N. Doc. E/CN.4/SR.89, 20. 22. ����������������������������������������������������������������������� These proposals included a procedure for reservations, including a provision states undertake to modify laws in order to bring them into line with the provisions of the covenant (Denmark, E/CN.4/331); a statement of understanding of obligations by every state acceding to the Covenant, according to each state’s constitutional procedure (UK, E/CN.4/243); a recapitulation of earlier Soviet proposals (E/CN.4/313) submitted as separate, individual draft documents (E/CN.4/196/Rev.1 on the right to work; E/CN.4/221, 244 and 245 on the right to social security and social insurance at expense of the State or employers; E/CN.4/246 on the right to decent living accommodations; E/ CN.4/247 on the right to education; E/CN.4/248 on the state’s obligation to ensure the development of science and education in the interests of progress, democracy, and international peace and cooperation; and E/CN.4/263 on trade union rights); the right to rest and leisure guaranteed by the state; reasonable limitation of working hours; holidays with pay (USSR, E/CN.4/244/Corr.1); equal rights for women (generally) and equal pay for equal work (USSR, E/ CN.4/221/Corr.1); rights of self-­determination to “every people and every nation” and minority rights (USSR, E/CN.4/237); and political rights (to vote and hold office) (USSR, E/CN.4/218).

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230   Notes to Pages 67–72

23. E/CN.4/SR.130, 9–­10. 24. E/CN.4/SR.130, 3–­5. 25. E/CN.4/SR.124, 7–­8 ; 10–­11 (USSR); E/CN.4/SR.124, 9 (India); E/CN.4/ SR.131, 5 (UK). 26. E/CN.4/SR.131, 13–­14. 27. Text of the resolution in U.N. Doc. E/CN.4/350 and E/1371, 13–­14. 28. Compiled in E/CN.4/313. 29. U.N. Doc. E/CN.4/SR.133, 22. 30. U.N. Doc. E/CN.4/SR.133, 24. 31. By a vote of 7-­4 -­4 ; U.N. Doc. E/CN.4/SR.133, 25 32. Including all the drafts on economic and social rights: the Soviet articles and Australia’s six articles. U.N. Doc. E/1371, 47–­51. 33. These included Australia’s proposal for an International Court of Human Rights, including a draft statute of the court. U.N. Doc. E/1371, Annex III, 61–­ 74. 34. U.N. Doc. E/SR.320, 523–­27. 35. U.N. Doc. E/CN.4/353, 1. 36. U.N. Doc. E/CN.4/SR.136, 6. The Ukrainian and Guatemalan delegates also failed to appear at the sixth session and sent no alternates. There is no indication that the Guatemalan absence was due to the Chinese question. 37. From the 136th to the 175th meetings, March 27 through April 28, 1950. 38. U.N. Doc. E/CN.4/SR.181, 4. 39. U.N. Doc. E/CN.4/SR.181, 4. 40. U.N. Doc. E/CN.4/SR.181, 4. The vote was 5-­3 -­5. 41. U.N. Doc. E/1681, 6. 42. U.N. Doc. E/CN.4/SR.184, 3. 43. U.N. Doc. E/CN.4/SR.184, 4. 44. U.N. Doc. E/CN.4/SR.184, 5. The Yugoslav delegation introduced its own draft articles on economic and social rights, which were substantial revisions of those proposed by the Soviets during the fifth session. See U.N. Doc. E/ CN.4/436. 45. U.N. Doc. E/CN.4/SR.184, 7. 46. U.N. Doc. E/CN.4/SR.184, 26. 47. U.N. Doc. E/CN.4/478. 48. U.N. Doc. E/CN.4/185, 4. 49. U.N. Doc. E/CN.4/185, 5. 50. U.N. Doc. E/CN.4/SR.186, 21; italics mine. The U.K.’s negative vote was cast because the resolution gave the impression that the only way to secure economic and social rights was through legally binding instruments—­a sentiment shared by Uruguay during the debate. However, in the end, Uruguay voted for the resolution. See U.N. Doc. E/CN.4/SR.186, 8. 51. U.N. Doc. E/1681, 21. 52. U.N. Doc. E/SR.377, 16. 53. U.N. Doc. E/SR.378, 19. 54. U.N. Doc. E/SR.378, 20. 55. U.N. Doc. E/SR.378: 20. 56. U.N. Doc. E/SR.378, 20. 57. U.N. Doc. E/SR.378, 21. 58. U.N. Doc. E/SR.378, 22–­23; 28. 59. E/AC.7/SR.147. 60. Relevant sections of Economic and Social Council Resolution 303 (XI)

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Notes to Pages 73–78   231

can be found in Supplementary Document 1, online at http://www.hendrix. edu/politics/politics.aspx?id=43640. 61. ����������������������������������������������������������������������� Those other matters were the general adequacy of the first eighteen articles, the application of the Covenant to federal states and non-­self-­governing and trust territories, and the adequacy of articles related to implementation. 62. U.N. Doc. A/C.3/SR.297, 171. 63. U.N. Doc. A/C.3/SR.298, 177. 64. U.N. Doc. A/C.3/SR.298, 177. 65. U.N. Doc. A/C.3/SR.298, 179. 66. U.N. Doc. A/C.3/SR.299, 186. 67. U.N. Doc. A/C.3/SR.297, 173. 68. U.N. Doc. A/C.3/SR.297, 175. 69. U.N. Doc. A/C.3/SR.298, 180–­81. 70. U.N. Doc. A/C.3/SR.299, 185. 71. General Assembly resolution 217 (III) was the resolution that included the Universal Declaration in its Section A. Section E, titled Preparation of a Draft Covenant on Human Rights and Draft Measures of Implementation, requested the Economic and Social Council “to ask the Commission on Human Rights to continue to give priority in its work to the preparation of a draft Covenant on Human Rights and draft measures of implementation.” 72. U.N. Doc. A/C.3/SR.299, 189. 73. Chilean delegation, U.N. Doc. A/C.3/SR.297, 176 74. �������������������������������������������������������������������� Ukrainian delegation, U.N. Doc. A/C.3/SR.298, 181; Byelorussian delegation, U.N. Doc. A/C.3/SR.299, 186. 75. Czechoslovakian delegation, U.N. Doc. A/C.3/SR.299, 188. 76. Polish delegation, U.N. Doc. A/C.3/SR.297, 174. 77. U.N. Doc. A/C.3/SR.298, 182. 78. U.N. Doc. A/C.3/SR.298, 178. 79. U.N. Doc. A/C.3/SR.298, 178. 80. U.N. Doc. A/C.3/SR.299, 188. 81. U.N. Doc. A/C.3/SR.298, 182–­83. 82. U.N. Doc. A/C.3/SR.297, 174 83. U.N. Doc. A/C.3/SR.298, 178. 84. U.N. Doc. A/C.3/SR.299, 187. 85. U.N. Doc. A/C.3/SR.299: 189. 86. Argentina, Byelorussia, Chile, Cuba, Czechoslovakia, Egypt, Iran, Iraq, Mexico, Poland, Saudi Arabia, Syria, Ukraine, the USSR, and Yugoslavia. 87. Belgium, Brazil, Canada, China, Denmark, Dominican Republic, France, Greece, India, Israel, Netherlands, New Zealand, the United Kingdom, the United States, and Venezuela. 88. Afghanistan. 89. U.N. Doc. A/C.3/L.76. The original text is in Supplementary Document 2, online at http://www.hendrix.edu/politics/politics.aspx?id=43640. 90. U.N. Doc. A/C.3/L.76. 91. U.N. Doc. A/C.3/L.77/Rev.1. 92. U.N. Doc. A/C.3/SR.303, 210. 93. U.N. Doc. A/C.3/L.96. 94. U.N. Doc. A/C.3/SR.305, 220. 95. U.N. Doc. A/C.3/L.92. The original text is in Supplementary Document 3, online at http://www.hendrix.edu/politics/politics.aspx?id=43640. 96. U.N. Doc. A/C.3/SR.305, 219.

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232   Notes to Pages 79–87

97. In U.N. Doc. A/C.3/L.83/Rev.1. 98. U.N. Doc. A/C.3/SR.312, 254. 99. U.N. Doc. A/C.3/SR.312, 255. 100. U.N. Doc. A/C.3/SR.313, 258. 101. U.N. Doc. A/C.3/SR.313, 258–­59. 102. U.N. Doc. A/C.3/SR.313, 260. 103. ��������������������������������������������������������������������������� The full “legislative history” of this resolution is in Supplementary Document 4, online at http://www.hendrix.edu/politics/politics.aspx?id=43640. 104. U.N. Doc. A/C.3/ L.111. 105. U.N. Doc. A/C.3/SR.318, 286. 106. �������������������������������������������������������������������� U.N. Doc. A/C.3/SR.318, 287. Eleanor Roosevelt supported the resolution as a whole, but pointed out her “serious concern about the practicability of including economic and social rights in the first draft covenant.” 107. U.N. Doc. A/C.3/SR.318: 287–­88. 108. U.N. Doc. A/1576. A treatment of how the Soviet proposal would have altered Draft Resolution I is contained in Supplementary Document 5, online at http://www.hendrix.edu/politics/politics.aspx?id=43640. 109. U.N. Doc. A/PV.317, 554. 110. U.N. Doc. A/PV.317, 555. 111. U.N. Doc. A/PV.317, 558. 112. U.N. Doc. A/PV.317, 558. 113. U.N. Doc. A/PV.317, 559. 114. U.N. Doc. A/PV.317, 559. 115. U.N. Doc. A/PV.317, 559. 116. U.N. Doc. A/PV.317, 560. 117. U.N. Doc. A/PV.317, 561. 118. U.N. Doc. A/PV.317, 561. 119. U.N. Doc. A/PV.317, 561. 120. For for voting tallies on each Soviet amendment and for each section of the draft Resolution, see Supplementary Document 5, online at http://www. hendrix.edu/politics/politics.aspx?id=43640. 121. A. J. Hobbins, ed., On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, vol. 2, 1950–­51 (Montreal: McGill University Libraries, 1996), 87. 122. Ibid., 126. 123. Ibid. 124. Ibid., 127, 29. 125. Ibid., 129. 126. Ibid., 130. 127. Ibid., 132. 128. The delegate from Mexico. 129. Hobbins, On the Edge of Greatness, 132. 130. Ibid., 133. 131. Ibid., 135–­36. Chapter 5 1. Daniel J. Whelan and Jack Donnelly, “The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight,” Human Rights Quarterly 29, no. 4 (2007); Alex Kirkup and Tony Evans, “The

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Notes to Pages 87–92   233

Myth of Western Opposition to Economic, Social and Cultural Rights? A Reply to Whelan and Donnelly,” Human Rights Quarterly 31, no. 1 (2009); Daniel J. Whelan and Jack Donnelly, “Yes, a Myth: A Reply to Kirkup and Evans,” Human Rights Quarterly 31, no. 1 (2009); Susan L. Kang, “The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly,” Human Rights Quarterly 31, no. 4 (2009); Daniel J. Whelan and Jack Donnelly, “The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang,” Human Rights Quarterly 31, no. 4 (2009). 2. United States Department of State, Foreign Relations of the United States 1950, vol. 2, The United Nations; The Western Hemisphere (Washington, D.C.: U.S. Government Printing Office, 1976), 575–­76. 3. Ibid., 578. 4. Ibid., 579. 5. A. J. Hobbins, ed., On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, vol. 2, 1950–­1951 (Montreal: McGill University Libraries, 1996), 135–­36. 6. United States Department of State, Foreign Relations of the United States 1950, 579. 7. Ibid., 580. 8. Ibid. 9. Ibid., 580–­81, emphasis in original. 10. Ibid., 581. 11. Ibid., 582. 12. Ibid. 13. United States Department of State, Foreign Relations of the United States 1951, vol. 2, The United Nations; The Western Hemisphere (Washington, D.C.: U.S. Government Printing Office, 1979), 735, my emphasis. 14. Ibid., 736. 15. Ibid. 16. Ibid., 737. 17. Ibid., 737–­39. 18. U.N. Doc. E/CN.4/SR.202, 4–­7. 19. U.N. Doc. E/CN.4/SR.202, 23–­24. 20. Hobbins, On the Edge of Greatness, vol. 2, 40. 21. Ibid., 44. 22. ��������������������������������������������������������������������� James Simsarian was on the U.S. Delegation to the U.N. General Assembly and the Assistant Officer in Charge of U.N. Cultural and Human Rights Affairs at the U.S. Department of State. He was also Advisor to Roosevelt. He often wrote summaries of human rights activities in the U.N. for International Organization. 23. Hobbins, On the Edge of Greatness, vol. 2, 199. 24. Now included in U.N. Doc. E/CN.4/537. 25. U.N. Doc. E/CN.4/538. 26. U.N. Doc. E/CN.4/538/Rev.1 27. U.N. Doc. E/CN.4/539. 28. U.N. Doc. E/CN.4/539/Rev.1 29. U.N. Docs. E/CN.4/542 (Denmark) and 543 (Australia). 30. U.N. Docs. E/CN.4/544 (WHO proposal) and 547 (Egyptian revision). 31. Hobbins, On the Edge of Greatness, vol. 2, 200. 32. U.N. Doc. E/CN.4/545/Rev.1. 33. U.N. Doc. E/CN.4/SR.208, 15.

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234   Notes to Pages 92–98

34. Hobbins, On the Edge of Greatness, vol. 2, 200. 35. Ibid., 204. 36. ����������������������������������������������������������������� U.N. Docs. E/CN.4/SR.216–­230. The drafts are included in Supplementary Document 6, online at http://www.hendrix.edu/politics/politics. aspx?id=43640. 37. Hobbins, On the Edge of Greatness, vol. 2, 205. 38. Ibid., 206. 39. Ibid. 40. U.N. Doc. E/CN.4/599. 41. U.N. Doc. E/CN.4/SR.230, 18. This was done in light of a Uruguayan proposed amendment (U.N. Doc. E/CN.4/603) stipulating that due compensation be paid in every case of public appropriation under law. The Uruguayan amendment was later withdrawn. 42. U.N. Doc. E/CN.4/SR.230, 17. Soviet amendment in U.N. Doc. E/ CN.4/614. 43. U.N. Doc. E/CN.4/SR.230, 18 44. U.N. Doc. E/CN.4/SR.230, 18 45. U.N. Doc. E/CN.4/SR.230, 19. 46. U.N. Doc. E/CN.4/SR.230, 19. 47. U.N. Doc. E/CN.4/SR.230, 20. 48. U.N. Doc. E/CN.4/SR.230, 20 49. U.N. Doc. E/CN.4/SR.230, 21. 50. U.N. Doc. E/CN.4/SR.230, 21–­22. 51. U.N. Doc. E/CN.4/SR.230, 26. 52. U.N. Doc. E/CN.4/SR.230, 25. 53. U.N. Doc. E/CN.4/SR.231, 5. 54. U.N. Doc. E/CN.4/SR.231, 6. 55. U.N. Doc. E/CN.4/SR.231, 7 56. U.N. Doc. E/CN.4/SR.231, 8. 57. U.N. Doc. E/CN.4/SR.231, 9 58. U.N. Doc. E/CN.4/SR.231, 14. 59. U.N. Doc. E/CN.4/SR.231, 14. 60. U.N. Doc. E/CN.4/SR.231, 16. 61. U.N. Doc. E/CN.4/SR.231, 16–­17. 62. See U.N. Doc. E/1681 (Suppl. 5), 15–­20. 63. U.N. Doc. E/CN.4/574. 64. U.N. Doc. E/CN.4/609. 65. U.N. Doc. E/CN.4/610 and Add.1 and Add.2. 66. U.N. Doc. E/CN.4/612. 67. U.N. Docs. E/CN.4/610 and Add.1 and Add.2. 68. U.N. Doc. E/CN.4/SR.231, 19. 69. India: U.N. Doc. E/CN.4/SR.231, 19, my emphasis. 70. U.N. Doc. E/CN.4/SR.232, 4. 71. U.N. Doc. E/CN.4/SR.231, 17. 72. U.N. Doc. E/CN.4/SR.232, 9. 73. U.N. Doc. E/CN.4/SR.232, 9–­10. 74. U.N. Doc. E/CN.4/SR.232, 10. 75. U.N. Doc. E/CN.4/SR.232, 11. 76. Uruguay: U.N. Doc. E/CN.4/SR.232, 13. 77. U.N. Doc. E/CN.4/SR.232, 13. 78. U.N. Doc. E/CN.4/SR.232, 14–­15.

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Notes to Pages 98–107   235

79. U.N. Doc. E/CN.4/SR.233, 11–­12. 80. U.N. Doc. E/CN.4/SR.233, 16. 81. First, of course, the Commission took a vote on whether to take a vote on the inclusion of a clause. That passed 11-­3 -­4. U.N. Doc. E/CN.4/SR.233, 20–­21. 82. U.N. Doc. E/CN.4/SR.233, 22–­26. 83. U.N. Doc. E/CN.4/SR.234, 4, my emphasis. 84. Hobbins, , On the Edge of Greatness, vol. 2, 209. 85. U.N. Doc. E/CN.4/618. 86. U.N. Doc. E/CN.4/SR.236, 15. 87. U.N. Doc. E/CN.4/SR.236, 17. 88. U.N. Doc. E/CN.4/SR.236, 17–­18. 89. U.N. Doc. E/CN.4/SR.236, 20. 90. U.N. Doc. E/CN.4/SR.236: 22. 91. U.N. Doc. E/CN.4/SR.236, 28. 92. Originally outlined in U.N. Doc. E/CN.4/610/Add. 2. 93. See ����������������������������������������������������������������������� U.N. Doc. E/1992, Annex I. Derogations were (and still are) prohibited from the right to life; prohibitions against torture, slavery, arbitrary arrest and detention, and being imprisoned for inability to fulfill a contractual obligation, ex-­post facto detention; and the rights to recognition as a person before the law and freedom of thought, conscience, and religion. 94. U.N. Doc. E/CN.4/SR.237, 12–­13. 95. Hobbins, On the Edge of Greatness, vol. 2, 209–­10. 96. Ibid., 210. 97. Ibid., 202. 98. U.N. Doc. E/CN.4/SR.237, 17. 99. U.N. Doc. E/CN.4/SR.237, 19. 100. U.N. Doc. E/CN.4/570. 101. U.N. Doc. E/CN.4/570, 4. 102. U.N. Doc. E/CN.4/570, 6. 103. Whether those would be part of the Covenant or provided through an Optional Protocol was still under discussion. 104. U.N. Doc. E/CN.4/SR.238, 19–­20. 105. U.N. Doc. E/CN.4/SR.241, 9. 106. U.N. Doc. E/CN.4/SR.242, 4–­11. 107. Hobbins, On the Edge of Greatness, vol. 2, 210. 108. Ibid., 213. 109. U.N. Doc. E/CN.4/629. 110. U.N. Doc. E/CN.4/SR.247, passim. 111. U.N. Doc. E/CN.4/SR.248, 6. 112. U.N. Doc. E/CN.4/SR.248, 6. 113. U.N. Doc. E/CN.4/SR.248, 22. 114. U.N. Doc. E/CN.4/SR.248, 20–­21. 115. U.N. Doc. E/CN.4/SR.248, 9. 116. U.N. Doc. E/CN.4/SR.248, 14. 117. “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Of course, the Universal Declaration did not create internationally legally binding obligations. 118. U.N. Doc. E/CN.4/SR.248, 22. 119. U.N. Doc. E/CN.4/SR.248, 17.

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236   Notes to Pages 107–115

120. U.N. Doc. E/CN.4/SR.248, 18. 121. There is one significant difference between the Declaration’s Article 22 and Article 19 of the draft Covenant: the latter actually draws a distinction between “the rights and liberties recognized and defined above” and “the rights recognized in this Part” of the Covenant. 122. U.N. Doc. E/CN.4/SR.248, 8. 123. U.N. Doc. E/CN.4/SR.248, 8–­9. 124. U.N. Doc. E/CN.4/SR.248, 10. 125. This term, “first,” which was in subsequent U.N. bodies used most often by the United Kingdom, provided a rhetorical source for delegation opposed to a division of the Covenant, for it suggested the acceptance of an implicit hierarchy between the “first” and “second” Covenants. In response, the United States would offer a compromise during the subsequent debate in the Third Committee of the General Assembly in late 1951. 126. U.N. Doc. E/CN.4/SR.248, 23–­24. 127. U.N. Doc. E/CN.4/SR.248, 24. 128. U.N. Doc. E/CN.4/SR.248, 24 129. U.N. Doc. E/CN.4/SR.248, 22–­23. 130. U.N. Doc. E/CN.4/SR.248, 21. 131. U.N. Doc. E/CN.4/SR.248, 26. 132. U.N. Doc. E/CN.4/SR.248, 26. 133. United States Department of State, Foreign Relations of the United States 1951, 741. 134. Ibid. 135. Ibid., 742. 136. Ibid. 137. Ibid. 138. Ibid. Technically, such a statement would not be a reservation but rather an “understanding.” Reservations are typically used to state a state-­party’s intention to not recognize the legality of a specific clause—­or in this case, a right—­ within its jurisdiction. 139. Ibid., 743. 140. Ibid., 745. 141. Ibid. 142. Ibid. 143. Ibid., 747. 144. Ibid., 748. Chapter 6 1. A. J. Hobbins, ed., On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, vol. 2, 1950–­1951 (Montreal: McGill University Libraries, 1996), 242. 2. Ibid., 250. 3. Ibid., 251, emphasis in original. 4. Chile would later make this argument in the Third Committee of the sixth session of the General Assembly (see U.N. Doc. A/C.3/SR.389, 247). 5. The text of Economic and Social Council Resolution 384 (XIII) can be found in Supplementary Document 7, online at http://www.hendrix.edu/politics/politics.aspx?id=43640.

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Notes to Pages 116–122   237

6. U.N. Doc. E/SR.523, 402. 7. U.N. Doc. E/SR.524, 407. 8. U.N. Doc. E/SR.524, 410. 9. U.N. Doc. E/SR.524, 406. 10. U.N. Doc. E/SR.523, 403. 11. U.N. Doc. E/SR.523, 403. 12. U.N. Doc. E/SR.524, 414. 13. U.N. Doc. E/SR.523, 408. 14. U.N. Doc. A/C.3/SR.360, 78. 15. U.N. Doc. A/C.3/SR.361, 83–­84. 16. U.N. Doc. A/C.3/SR.362, 91. 17. U.N. Doc. A/C.3/SR.367, 122. 18. U.N. Doc. A/C.3/SR.361, 86. 19. U.N. Doc. A/C.3/SR.361, 87. 20. U.N. Doc. A/C.3/SR.361, 86. 21. U.N. Doc. A/C.3/SR.361, 87. 22. U.N. Doc. A/C.3/SR.361, 87. 23. U.N. Doc. A/C.3/SR.361, 88. 24. U.N. Doc. A/C.3/SR.360, 78. 25. U.N. Doc. A/C.3/SR.366, 115. 26. U.N. Doc. A/C.3/SR.361, 86. 27. U.N. Doc. A/C.3/SR.361, 86. 28. U.N. Doc. A/C.3/SR.363, 97. 29. U.N. Doc. A/C.3/SR.367, 121. 30. U.N. Doc. A/C.3/SR.370, 138–­39. 31. Afghanistan, ������������������������������������������������������������������������� Argentina, Byelorussia, Chile, Cuba, Czechoslovakia, Dominican Republic, Ecuador, Ethiopia, Guatemala, Indonesia, Iraq, Mexico, Pakistan, Poland, Saudi Arabia, Soviet Union, Syria, Ukraine, Uruguay, and Yugoslavia. 32. U.N. Doc. A/C.3/SR.365, 108. 33. U.N. Doc. A/C.3/SR.362, 90. 34. U.N. Doc. A/C.3/SR.364, 103. 35. U.N. Doc. A/C.3/SR.366, 118; U.N. Doc. A/C.3/SR.367, 122; U.N. Doc. A/C.3/SR.368, 128 and 131; U.N. Doc. A/C.3/SR.370, 135. 36. U.N. Doc. A/C.3/SR.364, 103. 37. U.N. Doc. A/C.3/SR.364, 104. 38. U.N. Doc. A/C.3/SR.371, 142. 39. U.N. Doc. A/C.3/SR.360, 81. 40. U.N. Doc. A/C.3/SR.366, 116. 41. U.N. Doc. A/C.3/SR.366, 117. 42. U.N. Doc. A/C.3/SR.361, 85. 43. U.N. Doc. A/C.3/SR.366, 114–­15. 44. U.N. Doc. A/C.3/SR.367, 122; U.N. Doc. A/C.3/SR.368, 130; U.N. Doc. A/C.3/SR.370, 135. 45. U.N. Doc. A/C.3/SR.362, 91. 46. U.N. Doc. A/C.3/SR.365, 110. 47. U.N. Doc. A/C.3/SR.366, 117. 48. U.N. Doc. A/C.3/SR.366, 118. 49. U.N. Doc. A/C.3/SR.366, 119. 50. The McCarran Act of 1950 (also called the Internal Security Act and the Subversive Activities Control Act) required the registration of communist organizations with the U.S. Attorney General and established the Subversive Activi-

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ties Control Board to investigate persons thought to be engaged in un-­A merican activities. The Taft-­Hartley Act (officially known as the Labor-­Management Relations Act) of 1947 severely restricted the activities and power of labor unions in the United States. Truman described the act as a slave-­labor bill and vetoed it. The United States Senate and House overrode Truman’s veto. 51. U.N. Doc. A/C.3/SR.368, 130. 52. U.N. Doc. A/C.3/SR.368, 127. 53. U.N. Doc. A/C.3/SR.370, 135–­36. 54. U.N. Doc. A/C.3/SR.367, 123. 55. U.N. Doc. A/C.3/SR.366, 116. 56. U.N. Doc. A/C.3/SR.366, 117. 57. “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” 58. “The will of the people shall be the basis of the authority of government; this will [of the people] shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” 59. U.N. Doc. A/C.3/SR.367, 124. 60. U.N. Doc. A/C.3/SR.367, 125. 61. U.N. Doc. A/C.3/SR.362, 94. 62. U.N. Doc. A/C.3/SR.366, 117. 63. U.N. Doc. A/C.3/SR.366, 118. 64. U.N. Doc. A/C.3/SR.368, 128. 65. U.N. Doc. A/C.3/SR.361, 84. 66. U.N. Doc. A/C.3/SR.361, 84. 67. U.N. Doc. A/C.3/SR.362, 90. 68. U.N. Doc. A/C.3/SR.362, 94. 69. U.N. Doc. A/C.3/SR.362, 95. 70. Hobbins, On the Edge of Greatness, vol. 2, 288. 71. Ibid., 291. 72. Ibid. 73. Ibid., 293. 74. See U.N. Doc. A/C.3/SR.372. 75. U.N. ������������������������������������������������������������������� Doc. A/C.3/L.182. The original text of the draft is in Supplementary Document 8, online at http://www.hendrix.edu/politics/politics. aspx?id=43640. 76. U.N. Doc. A/C.3/L.185/Rev. 1. 77. U.N. Doc. A/C.3/L.192/Rev.2. 78. U.N. Doc. A/C.3/SR.390, 253. 79. U.N. Doc. A/C.3/SR.393, 272. 80. U.N. Doc. A/C.3/SR.388, 243. 81. U.N. Doc. A/C.3/SR.390, 252. 82. U.N. Doc. A/C.3/SR.390, 254. 83. U.N. Doc. A/C.3/SR.394, 284. 84. U.N. Doc. A/C.3/SR.390, 253; U.N. Doc. A/C.3/SR.393, 275. 85. U.N. Doc. A/C.3/SR.395, 285. 86. U.N. Doc. A/C.3/SR.393, 276. 87. U.N. Doc. A/C.3/SR.394, 280. 88. U.N. Doc. A/C.3/SR.393, 272. 89. U.N. Doc. A/C.3/SR.395, 287. 90. U.K. delegation, U.N. Doc. A/C.3/SR.390, 252.

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Notes to Pages 128–133   239

91. U.N. Doc. A/C.3/SR.389, 249. 92. U.N. Doc. A/C.3/SR.394, 280. 93. U.N. Doc. A/C.3/SR.394, 280–­81. 94. U.N. Doc. A/C.3/SR.395, 290 95. U.N. Doc. A/C.3/SR.395, 291. 96. The Summary Record of the vote recorded 29 votes for, 21 against, and 6 abstentions: a total of 56 votes. We might then assume that two countries were not present for the vote. However, the roll call record did not record votes for three countries: Haiti, Panama, and the USSR. The missing vote was a no vote, which could have been cast by either Haiti (which voted no on all of the amendments) or the USSR (which voted no as well). Panama had voted yes on all the amendments. U.N. Doc. A/C.3/SR.396, 293–­94. 97. A. J. Hobbins, ed., On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights, vol. 3, 1952–­1957 (Montreal: McGill University Libraries, 1996), 7. 98. United States Department of State, Foreign Relations of the United States 1951, vol. 2, The United Nations; The Western Hemisphere (Washington, D.C.: U.S. Government Printing Office, 1979), 753. 99. Ibid. 100. Ibid., 766–­67. 101. Hobbins, On the Edge of Greatness, vol. 3, 7. 102. Ibid., 8. 103. U.N. Doc. A/PV.374, 503. 104. U.N. Doc. A/PV.374, 502. 105. U.N. Doc. A/PV.374, 502. 106. U.N. Doc. A/PV.374, 502. 107. U.N. Doc. A/PV.374, 503. 108. U.N. Doc. A/PV.374, 503. 109. U.N. Doc. A/PV.374, 503. 110. U.N. Doc. A/PV.374, 503 111. U.N. Doc. A/PV.374., 504. 112. U.N. Doc. A/PV.374, 506. 113. U.N. Doc. A/PV.374, 507 114. U.N. Doc. A/PV.374, 507. 115. U.N. Doc. A/PV.374, 507. 116. U.N. Doc. A/PV.374, 509. 117. U.N. Doc. A/PV.374, 509. 118. U.N. Doc. A/PV.375, 514. 119. U.N. Doc. A/PV.374, 514. 120. U.N. Doc. A/PV.374, 515. 121. U.N. Doc. A/PV.374, 515. 122. U.N. Doc. A/PV.374, 515 123. U.N. Doc. A/PV.374, 515 124. U.N. Doc. A/PV.374, 516. 125. U.N. Doc. A/PV.374, 516 126. U.N. Doc. A/PV.374, 517. 127. U.N. Doc. A/PV.374, 517 128. U.N. Doc. A/PV.374, 518. 129. The ������������������������������������������������������������������� full text of General Assembly Resolution 543 (VI) is in Supplementary Document 9, online at http://www.hendrix.edu/politics/politics. aspx?id=43640.

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240   Notes to Pages 133–142

130. U.N. Doc. A/PV.375, 518. 131. ���������������������������������������������������������������������� U.N. Docs E/CN.4/L.224 and Rev.1–­4 ; L.257; L.258. The article was adopted during the Commission’s ninth session. 132. Kirsten Sellars, The Rise and Rise of Human Rights (Gloucestershire, UK: Sutton, 2002), 74. Chapter 7 1. International Organization, “Economic and Social Council,” International Organization 8, no. 4 (1954). 2. International Organization, “Social, Humanitarian and Cultural Matters,” International Organization 9, no. 1 (1955): 112–­15. 3. Ibid., 115. 4. Ibid. 5. Ibid. 6. International Organization, “Social, Humanitarian and Cultural Matters,” International Organization 10, no. 1 (1956): 94. 7. Ibid. 8. Ibid., 95. 9. The 641st to 655th, and 667th to 677th meetings. 10. Conversely, those favoring a right to self-­determination in the Covenants argued that the Charter’s references to self-­determination were not specific, just as the references to “human rights and fundamental freedoms” were merely an abstraction within the Charter, and required enumeration in a specific legal instrument (the Covenants). 11. International ������������������������������������������������������������������� Organization, “Social, Humanitarian and Cultural Matters” (1956), 95. 12. Ibid., 95–­96. 13. Ibid. Brazil, Costa Rica, El Salvador, Greece, India, Pakistan, Poland, Syria, and Venezuela constituted the working party. 14. Ibid., 99. 15. Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (London: Oxford University Press, 1995), 20–­21. 16. International �������������������������������������������������������������������� Organization, “Social, Humanitarian and Cultural Questions,” International Organization 16, no. 1 (1962): 126. 17. U.N. Doc. A/5365, 6–­17. 18. Craven, The International Covenant on Economic, Social and Cultural Rights,” 21. 19. See, for example, Resolutions 833 (IX) (1954) and 1041 (X) (1955). 20. Respectively, ����������������������������������������������������������������������� these programs were established by General Assembly resolutions 729 (VIII), 730 (VIII), and 839 (IX). 21. David A. Kay, “The Politics of Decolonization: The New Nations and the United Nations Political Process,” International Organization 21, no. 4 (1967): 787. 22. Ibid., 789. 23. These conferences were in 1955, 1958, and 1960. They ultimately led to the establishment of the Non-­A ligned Movement in 1961. 24. Abstaining were Australia, Belgium, the Dominican Republic, France, Portugal, Spain, South Africa, the U.K., and the United States. It was origi-

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nally the intention of the United States to vote in favor of the resolution, and British and Portuguese diplomacy within the U.N. to get the United States to change its mind had failed. According to Arthur Schlesinger, after a personal call to President Eisenhower from British Prime Minister Harold Macmillan, an instruction was issued from the State Department that the U.S. delegation abstain from the vote. When the U.S. ambassador to the U.N. tried to reach the president to argue the case, Eisenhower refused to take the call. Kay, “The Politics of Decolonization,” 793, note 20. 25. General Assembly Resolution 1654 (XVI), November 27, 1961. The body was called the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, also called the Special Committee on Colonialism, or the Special Committee of 24. It exists to this day. 26. Kay, “The Politics of Decolonization,” 802. 27. General Assembly Resolution 1780 (XVII), adopted December 7, 1962. 28. General Assembly Resolution 1904 (XVIII), November 20, 1963. 29. General Assembly Resolution 1906 (XVIII), November 20, 1963. 30. General Assembly Resolution 1961 (XVIII), December 12, 1963. 31. ���������������������������������������������������������������������������� The second recital reads, “[The General Assembly] . . . ​reaffirming its desire to contribute to respect for an observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations and the provisions of the Universal Declaration of Human Rights, the Declaration on the Elimination of All Forms of Racial Discrimination, and the Declaration on the Granting of Independence to Colonial Countries and Peoples, which are directed at heightening the effectiveness of United Nations actions in this sphere . . .” 32. Canada, �������������������������������������������������������������������������� France, India, Iran, Italy, Jamaica, New Zealand, Nigeria, Philippines, Poland, Somalia, Tunisia, the USSR, the United Kingdom, the United States, Uruguay, and Yugoslavia. The following year, six other countries were added: Colombia, Kenya, Lebanon, Mauritania, Pakistan, and Panama. 33. Louis Henkin, “The United Nations and Human Rights,” International Organization 19, no. 3 (1965): 513. 34. Egon Schwelb, “Some Aspects of the International Covenants on Human Rights of December 1966,” in Nobel Symposium 7: International Protection of Human Rights, ed. Asbjørn Eide and August Schou (Stockholm: Almqvist and Wiksell, 1968), 123. 35. Throughout I use the then-­official spelling of Tehran. 36. Drew Middleton, “Israel Is Accused at Rights Parley,” New York Times, April 24, 1968, p. 5; “Israel Says U.A.R. Is Blocking Peace,” New York Times, April 25, 1968, p. 15. 37. Final Act of the International Conference on Human Rights, Teheran, April 22 to May 13, 1968, U.N. Doc. A/CONF.32/41, 2–­3. 38. U.N. Doc. A/CONF.32/41, 3. 39. U.N. Doc. A/CONF.32/SR.4, 31. 40. U.N. Doc. A/CONF.32/SR.4, 35. 41. U.N. Doc. A/CONF.32/SR.4, 41. 42. Resolutions 2, 3, 4, 6, 7, 24, and 28. This constituted the bulk of the work of the First Committee. 43. Resolutions 17 and 21 dealt with economic issues. Resolution 5 was on nondiscrimination in employment. Resolution 9 was on women’s rights. Resolution 12 was on illiteracy; 15 on children’s rights; 28 on family planning. Resolution 20 was on the education of youth with respect to human rights

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44. U.N. Doc. A/CONF.32/C.2/L.30, introduced jointly by India and the United Arab Republic (Egypt) (see A/CONF.32/C.2/SR.7, 77–­78). It was later replaced by A/CONF.32/C.2/L.54 (see A/CONF.32/C.2/SR.12, 134–­f f). Full text of the final resolution is in Supplementary Document 10, online at http:// www.hendrix.edu/politics/politics.aspx?id=43640. 45. The draft of this resolution (A/CONF.32/C.2/L.11) was introduced by Ukraine (see A/CONF.32/C.2/SR.6, 66. Full text of the final resolution is in Supplementary Document 11, online at http://www.hendrix.edu/politics/politics .aspx?id=43640. 46. The report (A/CONF.32/L.2) was written by Jose Figueres, the former President of Costa Rica. In it, Figueres briefly describes a number of obstacles and challenges to economic development, using in many cases Latin America as an example. The brief report discusses productivity, surpluses, diversification, wages and taxation, technology, and the role of international aid. The human rights framework it most relies upon is based on Articles 1, 2, 11, and 23 of the ICESCR. 47. This was recommended in the Figueres report, in the section titled More Aid. It was based on the 1964 recommendation of the U.N. Conference on Trade and Development (UNCTAD) that developing nations provide at least 1 percent of GNP to development assistance. 48. U.N. Doc. A/CONF.32/C.2/SR.12, 136. 49. U.N. Doc. A/CONF.32/C.2/SR.12, 136. 50. U.N. Doc. A/CONF.32/C.2/SR.12, 137. 51. U.N. Doc. A/CONF.32/C.2/SR.12, 136–­38. 52. U.N. Doc. A/CONF.32/C.2/SR.12, 139. 53. U.N. Doc. A/CONF.32/C.2/SR.12, 141. 54. U.N. Doc. A/CONF.32/SR.25, 146. 55. This ������������������������������������������������������������������������ phrase was not in the original proposal. India suggested its insertion. See U.N. Doc. A/CONF.32/C.2/SR.13, 153. 56. The Netherlands suggested specifically adding the Optional Protocol to the Covenant on Civil and Political Rights (on individual complaints) with the two Covenants. The Soviets objected, but lost their bid to keep it out. U.N. Doc. A/CONF.32/C.2/SR.13, 155. 57. Indian proposal; U.N. Doc. A/CONF.32/C.2/SR.13, 153. 58. U.N. Doc. A/CONF.32/C.2/SR.13, 153. 59. Tanzania ������������������������������������������������������������������������� tried, unsuccessfully, to have the words “affecting national development” deleted. U.N. Doc. A/CONF.32/C.2/SR.13, 154–­55. 60. U.N. Doc. A/CONF.32/C.2/SR.13, 156. 61. U.N. Doc. A/CONF.32/SR.25, 145. 62. U.N. Doc. A/CONF.32/41. 63. An annotated text of the Proclamation is in Supplementary Document 12, online at http://www.hendrix.edu/politics/politics.aspx?id=43640. 64. Paragraph 5; emphasis mine. 65. Supplementary Document 12, online at http://www.hendrix.edu/politics/ politics.aspx?id=43640, contains an annotated treatment of the final Proclamation, with notations as to which principles were reflected in the American and Soviet versions. 66. U.N. Doc. A/CONF.32/L.18/Rev.1. 67. U.N. Doc. A/CONF.32/L.18/Rev.1. 68. One ���������������������������������������������������������������������� could make a strong argument that this draft language actually elevates political rights (as the Soviets viewed them) alongside economic and social rights, as evidenced by the language about democratic reforms.

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Notes to Pages 150–153   243

69. ������������������������������������������������������������������� U.N. Doc. A/CONF.32/L.22. The American draft was two pages; the Soviet draft was six. 70. Teheran Resolution XIV, “The rights of detained persons,” considering that infringements of the rights of detained persons (mentioning Article 9 of the International Covenant on Civil and Political Rights) “continue to occur,” merely recommended that Member States “review their laws and practices” to ensure that detainees are not held for long periods of time without charge or awaiting trial. 71. U.N. Doc. A/CONF.32/L.6 and Corr.1. 72. Latif O. Adegbite, “African Attitudes to the International Protection of Human Rights,” in Nobel Symposium 7: International Protection of Human Rights, ed. Asbjorn Eide and August Schou (Stockholm: Almqvist and Wiksell, 1968), 74. See also Antonio Cassese, “The General Assembly: Historical Perspectives, 1945–­1989,” in The United Nations and Human Rights: A Critical Appraisal, ed. Philip Alston (New York: Oxford University Press, 1995), 37–­39. 73. Adegbite, “African Attitudes,” 74. 74. “On 4 November 1960, Ethiopia and Liberia, as former States Members of the League of Nations, instituted separate proceedings against South Africa in a case concerning the continued existence of the League of Nations mandate for South West Africa . . . ​and the duties and performance of South Africa as mandatory Power. The Court was requested to make declarations to the effect that South West Africa remained a Territory under a mandate, that South Africa had been in breach of its obligations under that mandate, and that the mandate and hence the mandatory authority were subject to the supervision of the United Nations. On 20 May 1961, the Court made an Order finding Ethiopia and Liberia to be in the same interest and joining the proceedings each had instituted. South Africa filed four preliminary objections to the Court’s jurisdiction. In a Judgment of 21 December 1962, the Court rejected these and upheld its jurisdiction. After pleadings on the merits had been filed within the time-­limits fixed at the request of the parties, the Court held public sittings from 15 March to 29 November 1965 in order to hear oral arguments and testimony, and judgment in the second phase was given on 18 July 1966. By the casting vote of the President —­ the votes having been equally divided (7-­7) —­ the Court found that Ethiopia and Liberia could not be considered to have established any legal right or interest appertaining to them in the subject-­matter of their claims, and accordingly decided to reject those claims” (quoted from http://www.lawschool.cornell .edu/library/cijwww/icjwww/igeneralinformation/ibbook/Bbook8–­1.35–­3 6 .htm, accessed on May 21, 2006). 75. Adegbite, “African Attitudes,” 76–­77. 76. United States Department of State, Foreign Relations of the United States, 1964–­1968, ed. David S. Patterson, vol. 34, Energy Diplomacy and Global Issues, Foreign Relations of the United States (Washington, D.C.: United States Government Printing Office, 1999), 561–­63. 77. Ibid., 567. 78. United States Department of State, Foreign Relations of the United States, 1964–­1968, ed. Edward C. Keefer, vol. 33, Organization and Management of U.S. Foreign Policy; United Nations, Foreign Relations of the United States (Washington, D.C.: United States Government Printing Office, 2004), 752–­53. 79. United States Department of State, Foreign Relations of the United States, 1964–­1968, vol. 34, 587, note 3. 80. U.N. ������������������������������������������������������������������� General Assembly Resolutions 2443 (XXIII) and 2546 (XXIV) fol-

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244   Notes to Pages 153–157

lowed from Resolution I of the Conference, on “Respect for and implementation of human rights in occupied territories.” Resolutions 2444 (XXIII), 2597 (XXIV), and 2674, 2676, and 2677 (XXV) followed from Teheran XXIII: “(Respect for) Human Rights in Armed Conflicts.” General Assembly Resolution 2446 (XXIII) followed from Teheran III, IV, and VIII: “Measures to achieve the rapid and total elimination of all form of racial discrimination in general and of the policy of apartheid in particular.” General Assembly Resolutions 2447 (XXIII) and 2497 (XXIV) followed Teheran XX: “Education of youth in the respect for human rights and fundamental freedoms.” General Assembly Resolutions 2450 (XXIII) and 2721 (XXV) followed Teheran XI: “Human rights and scientific and technological developments.” Resolutions 2438 (XXIII) and 2545 (XXIV) followed Teheran II: “Measures to be taken against Nazism and racial intolerance.” General Assembly Resolution 2449 (XXIII) followed from Teheran XIX: “Legal aid.” General Assembly Resolution 2586 (XXIV) followed Teheran XVII: “Economic development and human rights” (however, the General Assembly resolution was entitled, “Promotion of respect for and observance of human rights and fundamental freedoms during the Second U.N. development decade.” General Assembly Resolution 2649 (XXV) followed Teheran VIII: “The importance of the universal realization of the right of peoples to self­determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights” (the General Assembly resolution also referred to Resolution 2588b (XXIV). 81. This �������������������������������������������������������������������� resolution emerged from the Second Committee of the General Assembly. One should note the absence of civil rights in this list. The departure from the typical Third Committee formulation, and even the absence of the word “human” with “rights” suggests that the Second Committee merely inserted this reference in response to the directive of the General Assembly in Resolution 2626 (XXV). The rest of the resolution focused on concrete proposals and targets for economic growth and international trade and aid. In no way is there any suggestion that development is a right. Chapter 8 1. Jack Donnelly, “Recent Trends in UN Human Rights Activity: Description and Polemic,” International Organization 35, no. 4 (1981). 2. Ibid., 636. 3. Ibid. 4. These ����������������������������������������������������������������������� were Declaration on the Establishment of a New International Economic Order, Resolution 3201 (S-­V I); Programme of Action on the Establishment of a New International Economic Order, Resolution 3202 (S-­V I); Charter of the Economic Rights and Duties of States, Resolution 3281 (XXIX); and Development and International Economic Cooperation, Resolution 3362 (S-­V II). 5. For a recent and comprehensive reappraisal of the actors behind and processes leading to the NIEO, as well as its aftermath, see Benn Denis Benn, Multilateral Diplomacy and the Economics of Change: The Third World and the New International Economic Order (Miami: Ian Randle, 2003). 6. Ibid., vii. 7. General Assembly Resolution 3281 (XXIX). 8. The final report, Manouchehr Ganji, “The Realization of Economic, Social and Cultural Rights: Problems, Policies and Progress” (New York: United Na-

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tions, 1975), came out in 1975. However, an earlier draft had been circulating since 1973, as U.N. Doc. E/CN.4/1108. 9. Donnelly, “Recent Trends in UN Human Rights Activity,” 637. 10. Ganji, “The Realization of Economic, Social and Cultural Rights,” 295. 11. Ibid. 12. Ibid., 308–­9. 13. Ibid., 296. 14. Ibid., 295. 15. Ibid., 296. 16. The first was General Assembly Resolution 2788 (XXVI) (1971), Status of the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Optional Protocol to the International Covenant on Civil and Political Rights. It was followed by Resolutions 3025 (XXVII) (1972), XXVIII (1973), and 3270 (XXIX) (1974). 17. The resolution’s title was Creation of the Post of United Nations High Commissioner for Human Rights. 18. The follow-­on resolution in 1975 was 3451 (XXX), Alternative Approaches and Ways and Means within the United Nations System for Improving the Effective Enjoyment of Human Rights and Fundamental Freedoms. It refers to the Secretary-­G eneral’s Report (A/10235, which now included the views of governments, specialized agencies, and NGOs), asks for replies to that report, and requests that this item be placed “with high priority” on the agenda of the thirty-­second session. 19. In 1976 the U.N. adopted a new resolution numbering system, with each resolution following the number format “A/RES/session number/resolution number,” e.g., “A/RES/31/86.” 20. ��������������������������������������������������������������������� The drafting history of General Assembly Resolution 32/130 is in Supplementary Document 13, online at http://www.hendrix.edu/politics/politics. aspx?id=43640. 21. Antonio Cassese, “The General Assembly: Historical Perspectives, 1945–­ 1989,” in The United Nations and Human Rights: A Critical Appraisal, ed. Philip Alston (New York: Oxford University Press, 1995), 41. 22. A ������������������������������������������������������������������������ case could be made that the practice of apartheid and racial discrimination, as state policy, are truly human rights violations (of people by governments). However, while apartheid and racial discrimination are repeatedly bundled alongside the list of other injustices in this resolution and those that followed, since the early 1960s there was for many years a standing, annual agenda item (“The importance of the universal realization of the right of peoples to self-­determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights”), the resolutions resulting from which targeted specific regimes: South Africa, Rhodesia, and Portugal—­and later included Israel and other states. 23. ���������������������������������������������������������������������������� Especially important is the right of peoples to sovereignty over their natural resources. 24. U.N. Doc. A/C.3/32/SR.54, 12. 25. The draft resolution that was debated in the Third Committee was U.N. Doc. A/C.3/32/L.17. 26. U.N. Doc. A/C.3/32/SR.43, 3–­4. 27. U.N. Doc. A/C.3/32/SR.43, 9. 28. U.N. Doc. A/C.3/32/SR.50, 9–­10. 29. U.N. Doc. A/C.3/32/SR.51, 3.

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30. Delegations from Madagascar (U.N. Doc. A/C.3/32/SR.51, 8), Mali (A/C.3/32/SR.50, 8), and Pakistan (A/C.3/32/SR.53, 2–­4) strongly supported the prioritization of economic, social, and cultural rights and the need for development assistance. The necessity of adopting the NIEO program in particular was also cited by India (A/C.3/32/SR.51, 11). The Soviet bloc tended to focus on the causes of disarmament and world peace (see, e.g., A/C.3/32/ SR.50, 5; and A/C.3/32/SR.51, 17). 31. U.N. Doc. A/C.3/32/SR.43, 6. 32. U.N. Doc. A/C.3/32/SR.43, 7. 33. U.N. Doc. A/C.3/32/SR.54, 7. 34. U.N. Doc. A/C.3/32/SR.55, 11. 35. U.N. Doc. A/C.3/32/SR.68, 2. 36. U.N. Doc. A/C.3/32/SR.43, 5. 37. U.N. Doc. A/C.3/32/SR.43, 5. 38. U.N. Doc. A/C.3/32/SR.49, 9–­10. 39. U.N. Doc. A/C.3/32/SR.53, 9. 40. U.N. Doc. A/C.3/32/SR.54, 3. 41. U.N. Doc. A/C.3/32/SR.55, 10–­11. 42. U.N. ������������������������������������������������������������������ Doc. A/C.3/32/SR.68, 6–­9. For voting results, see Supplementary Document 13, online at http://www.hendrix.edu/politics/politics. aspx?id=43640. 43. U.N. Doc. A/C.3/32/SR.68, 10. Ireland, Spain, France, the U.K., and the United States abstained over their objections to paras. 1 (e) and (f). 44. U.N. Doc. A/32/PV.105, 1720–­21. 45. U.N. Doc. A/32/PV.105, 1721. 46. U.N. Doc. A/32/PV.105, 1721. 47. Howard Tolley, The U.N. Commission on Human Rights (Boulder, Colo.: Westview Press, 1987), 91; see also Donnelly, “Recent Trends in UN Human Rights Activity,” 635. 48. Commission on Human Rights, Resolutions 4 and 5 (XXXV). 49. The first appearance of a right to development was in Commission on Human Rights Resolution 4 (XXXIII) in 1977, which requested the U.N. Secretary-­G eneral to undertake a study of the international dimensions of this question “in relation with other human rights based on international cooperation, including the right to peace, taking into account the requirements of the New International Economic Order and fundamental human needs.” For a particularly critical view of this backhanded introduction of the right to development, see Jack Donnelly, “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development,” California Western International Law Journal 15 (1985). 50. U.N. General Assembly Resolution 36/46 (1979), operative clause 12. The study was also supposed to “take into account the conclusions” of a future seminar (to be held in 1980) “on the effect of the present unjust international economic order on the economies of developing countries and the obstacle that this constitutes for the implementation of human rights and fundamental freedoms, in particular the right to enjoy an adequate standard of living as stated in article 25 of the Universal Declaration of Human Rights.” 51. General Assembly Resolutions 37/199 (1982), 37/200 (1982), 38/124 (1983), and 39/145 (1984). 52. ���������������������������������������������������������������������������� On the Declaration itself or the concept and practice of the right to development, see Jack Donnelly, “In Search of the Unicorn”; Philip Alston, “Making

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Space for New Human Rights: The Case of the Right to Development,” Harvard Human Rights Yearbook 1 (1988); Rob Buitenweg, “The Right to Development as a Human Right?,” Peace & Change 22, no. 4 (1997); David Forsythe, “The United Nations, Human Rights, and Development,” Human Rights Quarterly 19, no. 2 (1997); U. O. Umozurike, “Human Rights and Development,” International Social Science Journal 156 (1998); Arjun Sengupta, “Realizing the Right to Development,” Development and Change 31 (2000); Hans-­Otto Sano, “Development and Human Rights: The Necessary, but Partial Integration of Human Rights and Development,” Human Rights Quarterly 22 (2000); and Arjun Sengupta, “The Human Right to Development,” Oxford Development Studies 32, no. 2 (2004). On human rights frameworks or approaches to development, see Philip Alston, “The Rights Framework and Development Assistance” (paper presented at A Human Rights Approach to Development, Canberra, Australia, 1995); Peter Van Tuijl, “Entering the Global Dealing Room: Reflections on a Rights-­Based Framework for NGOs in International Development,” Third World Quarterly 21, no. 4 (2000); UK Department for International Development, “Realising Human Rights for Poor People,” in Strategies for Achieving the International Development Targets (London: Department for International Development, 2000); Yash Ghai, “Human Rights and Social Development: Toward Democratization and Social Justice” (Geneva: United Nations Research Institute for Social Development, 2001); and Philip Alston, “Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen through the Lens of the Millennium Development Goals,” Human Rights Quarterly 27 (2005). 53. This evolution is traced in Supplementary Document 15, online at http:// www.hendrix.edu/politics/politics.aspx?id=43640. 54. U.N. Doc. E/CN.4/1334 (1979). 55. Tolley, The U.N. Commission on Human Rights, 95. 56. Ibid., 142. 57. Ibid., 143. 58. The American objections to the right to development were that it was premature for the U.N. to adopt a declaration without further reflection on the issue; the U.N. should spend more time on studies and that the Working Group is not a good use of U.N. resources; that the Working Group had exceeded its mandate by focusing on matters of economics, international trade, and arms control; that “some of the most vociferous proponents of the right to development denied their citizens the opportunity to develop themselves in every possible way”; that the U.N. should look at the real development assistance of states like the United States rather than rhetoric of a right to development coming from countries that have no such records; and that efforts at codification of this “right” were “pointless and should not be undertaken.” Alston, “Making Space for New Human Rights,” 21–­22. 59. Full text of the Declaration on the Right to Development can be found in Supplementary Document 14, online at http://www.hendrix.edu/politics/ politics.aspx?id=43640. 60. Tolley, The U.N. Commission on Human Rights, 95. 61. One could reasonably read the latter into Article 5 of the Declaration— ­an article that is, in nearly every respect, a recitation of para. 1 (e) of General Assembly Resolution 32/130. 62. Alston, “Making Space for New Human Rights,” 7ff. 63. Ibid., 3. 64. Recognized in General Assembly Resolution 39/11 (1984).

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65. Alston, “Making Space for New Human Rights,” 4. 66. Ibid., 9–­10. 67. Ibid., 20–­21. 68. Ibid., 21. 69. Ibid. 70. Donnelly, “In Search of the Unicorn,” 508. 71. Sengupta, “The Human Right to Development,” 182. 72. W R is a rights-­based well-­being. g is a growth in the general standard of living, “measured by per capita real income adjusted by rights-­based norms.” Ibid. 73. I point out, however, that this statement directly contradicts Article 2 (3) of the ICESCR, which states, “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non­nationals.” 74. �������������������������������������������������������������������������� In a way this is a resurrection of Teheran’s impossibility clause, now reformulated to make the prioritization of economic, social, and cultural rights much less apparent. 75. The first two resolutions, entitled Status of the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the Optional Protocol to the International Covenant on Civil and Political Rights were 31/86 (1976) and 32/66 (1977). The title changed in 1978. The follow-­on resolutions are 33/51 (1978); 34/45 (1979); 35/132 (1980); 36/58 (1981); 37/191 (1982); 38/116 (1983); 39/136 (1984); 40/115 (1985); 41/119 (1986); 42/103 (1987); 43/114 (1988); 44/129 (1989); and 45/135 (1990). Beginning in 1991, the resolutions came every other year: 46/113 (1991); 48/119 (1993); 50/171 (1995); 52/116 (1997); 54/157 (1999); 56/144 (2001); 58/165 (2003); 60/149 (2005). Resolution 54/157 changed the “indivisible and interdependent” formulation to “universal, indivisible, interdependent, and interrelated.” 76. General Assembly Resolutions 40/114 (1985); 41/117 (1986); 42/102 (1987); 43/113 (1988); and 44/130 (1989). 77. I have traced these changes in Supplementary Document 15, online at http://www.hendrix.edu/politics/politics.aspx?id=43640. 78. ���������������������������������������������������������������������� Since 1987, there has been a resolution entitled The Right to Development adopted every year with the exception of 1999. The resolutions, in order, are 42/117 (1987); 43/127 (1988); 44/62 (1989); 45/97 (1990); 46/123 (1991); 47/123 (1992); 48/130 (1993); 49/183 (1994); 50/184 (1995); 51/99 (1996); 52/136 (1997); 53/155 (1998); 55/108 (2000); 56/150 (2001); 57/223 (2002); 58/172 (2003); 59/185 (2004); and 60/157 (2005). Chapter 9 1. Moses Moskowitz, Human Rights and World Order (New York: Oceana, 1958). 2. Moses ������������������������������������������������������������������� Moskowitz, “Implementing Human Rights: Present Status and Future Prospects,” in Human Rights: Thirty Years after the Universal Declaration, ed. B. G. Ramcharan (The Hague: Martinus Nijhoff, 1979), 109. 3. Ibid., 111. 4. Ibid., 122.

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Notes to Pages 177–184   249

5. Ibid., 123. 6. Ibid., 130. 7. Ibid., 129–­30. 8. U.N. Doc. E/CN.4/SR.424, 12, cited in Philip Alston, “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, no. 3 (1987): 336. 9. Ibid., 338. 10. Ibid. 11. Ibid., 339. 12. Ibid. 13. Ibid., 340. 14. Ibid., 341–­42. 15. Ibid., 345–­46. 16. Ibid., 348. This was not especially true of the Soviet Union, which while it supported some reforms to boost the status of economic, social, and cultural rights, was not in favor of any real structural reform, and did not approve of the participation of the U.N. specialized agencies. “In effect . . . ​[the Soviet Union] was seeking to endorse the principle of change while at the same time insisting that it be accompanied by no substantial changes.” 17. Ibid. 18. Ibid., 349. 19. Craig Scott, “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights,” Osgoode Hall Law Journal 27 (1989): 820. 20. Philip Alston, “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights,” provides a detailed description of these challenges. 21. See Human Rights Quarterly International Commission of Jurists, “The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 9, no. 2 (1987). 22. U.N. Doc. E/CN.4/1987/17, Annex. 23. The Limburg Principles were republished in Human Rights Quarterly in May 1987, along with a number of working papers on various aspects of the questions covered by the Limburg symposium. Philip Alston and Gerard Quinn provided a broad overview of the obligations imposed by the Covenant itself, as well as those applying to the enumerated rights in the Covenant, in “The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 9 (1987). 24. Part I(A)(6) states: “The achievement of economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-­market economies, in both centralized and decentralized political structures” (International Commission of Jurists, “The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights,” 124). 25. Ibid., 123–­24. 26. The Committee has issued eighteen General Comments since 1989. The others were 2: International Technical Assistance Measures (1990); 4: Right to Adequate Housing (1991); 5: Persons with Disabilities (1994); 6: The Economic, Social and Cultural Rights of Older Persons (1995); 7: Forced Evictions (1997); 8: The Relationship between Economic Sanctions and Economic, So-

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250   Notes to Pages 184–191

cial and Cultural Rights (1997); 9: The Domestic Application of the Covenant (1998); 10: The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights (1998); 11: Plans of Action for Primary Education (1999); 12: The Right to Adequate Food (1999); 13: The Right to Education (1999); 14: The Right to the Highest Attainable Standard of Health (2000); 15: The Right to Water (2002); 16: The Equal Right of Men and Women to the Enjoyment of all Economic, Social and Cultural Rights (2005); 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Wny Scientific, Literary or Artistic Production of Which He or She Is the Author (2005); and 18: The Right to Work (2006). 27. “Vienna Declaration and Programme of Action, World Conference on Human Rights,” U.N. Doc. A/CONF.157/24 (part I) (1993), preamble. 28. Interestingly, the resolution does not refer to development as a right, nor does it mention the Declaration on the Right to Development, but does stipulate that human rights means those that are enumerated in the Covenants. 29. There were three regional PrepComs that issued their own declarations: Tunis, San Jose, and Bangkok. The third of these generated some anxiety in the West, with its strong emphasis on the right to development and strong language about the cultural relativity of universal human rights. See Rob Buitenweg, “The Right to Development as a Human Right?” Peace & Change 22, no. 4 (1997). The full declaration is in U.N. Doc. A/CONF.157/PC/59. 30. The ������������������������������������������������������������������ Portuguese delegate on the Commission on Human Rights was particularly interested to see this on the agenda of the Conference. See Joe W. Pitts III and David Wiessbrodt, “Major Developments at the UN Commission on Human Rights in 1992,” Human Rights Quarterly 15, no. 1 (1992): 180. 31. Michael G. Schechter, United Nations Global Conferences (New York: Routledge, 2005), 128. 32. Clarence J. Dias, “The United Nations World Conference on Human Rights: Evaluation, Monitoring, and Review,” in United Nations-­Sponsored World Conferences: Focus on Impact and Follow-­Up, ed. Michael G. Schechter (New York: United Nations University Press, 2001), 29. 33. Ibid., 30. 34. Ibid., 33. 35. �������������������������������������������������������������������� Ibid., 31. The working groups were on indigenous peoples; women; democracy, development and human rights; racism, xenophobia, ethnic violence, religious intolerance, and minority rights; and on the general evaluation of the U.N. human rights program. 36. ���������������������������������������������������������������� Donna Sullivan, “Women’s Human Rights and the 1993 World Conference on Human Rights,” American Journal of International Law 88, no. 1 (1993). 37. Dias, “The United Nations World Conference on Human Rights,” 35. 38. ��������������������������������������������������������������������� Christina M. Cerna, “Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-­Cultural Contexts,” Human Rights Quarterly 16 (1993): 742. 39. Full text online at http://193.194.138.190/html/menu5/wcbangk.htm#I, accessed June 17, 2006. 40. Dias, “The United Nations World Conference on Human Rights,” 33. 41. The United Nations Development Programme is a prime example of this mainstreaming effort. Another example is UNICEF, which in effect has become the custodian of ensuring implementation of the 1989 Convention on the Rights of the Child. 42. Scott Leckie, “Another Step Towards Indivisibility: Identifying the Key

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Features of Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20 (1998): 82. 43. Ibid., 83. 44. Ibid., 86–­87. 45. Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (London: Oxford University Press, 1995), 352. 46. Alex ������������������������������������������������������������������� Kirkup and Tony Evans, “The Myth of Western Opposition to Economic, Social and Cultural Rights? A Reply to Whelan and Donnelly,” Human Rights Quarterly 31, no. 1 (2009): 231. 47. Hans Kelsen, Pure Theory of Law (Berkeley: University of California Press, 1967), 125–­26. 48. Alston and Quinn, “The Nature and Scope of States Parties’ Obligations,” 169. 49. Ibid., 160. 50. Much of this section is distilled from Daniel J. Whelan and Jack Donnelly, “The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight,” Human Rights Quarterly 29, no. 4 (2007): 932–­36. 51. Cass R. Sunstein, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever (New York: Basic Books, 2004). 52. U.N. Doc. E/CN.4/SR.248, 6 53. U.N. Doc. A/C.3/SR.360, 78. 54. The principal exception was workers’ rights, which, not coincidentally, were formulated in Articles 6–­8 of the ICESCR in much more readily justiciable terms. 55. U.N. Doc. A/C.3/SR.360, 82. 56. Audrey ������������������������������������������������������������������ R. Chapman, “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights,” Human Rights Quarterly 18 (1996). 57. Ibid., 26. 58. Ibid., 30. 59. The collection of the kinds of data that Chapman is talking about—­ really economic and social indicators for development—­has been undertaken for decades by U.N. agencies and dozens of international and domestic NGOs. However, Chapman criticized development agencies for not thinking in human rights terms. Chapman chastises the 1995 World Summit for Social Development for using “the vocabulary of development rather than rights, thus further marginalizing the Covenant.” Ibid., 27. 60. Ibid., 38. 61. ����������������������������������������������������������������������� International Commission of Jurists, “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20, no. 3 (1998): 691. 62. Ibid., 693–­94. 63. Ibid., 696–­97. 64. Ibid., 697. 65. U.N. Doc. E/C.12/1990. 66. Victor Dankwa, Cees Flinterman, and Scott Leckie, “Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly 20, no. 3 (1998): 710. 67. David Beetham, “What Future for Economic and Social Rights?” Political Studies 43 (1995): 44.

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252   Notes to Pages 197–211

68. Ibid., 53. 69. ����������������������������������������������������������������������� International Commission of Jurists, “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” 691–­92. 70. Ibid., 692. 71. Ibid. 72. Leckie, “Another Step Towards Indivisibility,” 96. 73. Philip Alston, “The UN’s Human Rights Record: From San Francisco to Vienna and Beyond,” Human Rights Quarterly 16 (1994): 380–­81. 74. Ibid., 383. 75. See E/CN.4/2002/57, para. 55. 76. E/CN.4/2006/47, para. 125. The new Human Rights Council agreed and changed the Working Group’s mandate, in Resolution A/HRC/RES/1/3. 77. E/CN.4/2006/47, para. 124. 78. E/CN.4/2006/47, para. 124. 79. E/CN.4/2006/47, para. 129. 80. E/CN.4/2006/47, para. 130. 81. E/CN.4/2006/47, para. 130. 82. E/CN.4/2006/47, para. 130. 83. E/CN.4/2006/47, para. 130. 84. E/CN.4/2006/47, para. 130. 85. E/CN.4/2006/47, para. 131. 86. E/CN.4/2006/47, paras. 133–­38. 87. All of the major human rights conventions allow state-­to-­state complaints. None has ever been pursued. 88. U.N. Doc. A/HRC/8/7. 89. U.N. Doc. A/HRC/8/WG.4/2, December 24, 2007. 90. Michael J. Dennis and David P. Stewart, “Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?” American Journal of International Law 98, no. 3 (2004): 475. 91. Ibid., 512. 92. Ibid. 93. E/CN.4/2006/47, para. 132. 94. Dennis and Stewart, “Justiciability of Economic, Social and Cultural Rights,” 514. 95. U.N. Doc. E/CN.4/SR.248, 6. Chapter 10 1. D. D. Raphael, “Human Rights, Old and New,” in Political Theory and the Rights of Man, ed. D. D. Raphael (Bloomington: Indiana University Press, 1967), 54. 2. Peter Schneider, “Social Rights and the Concept of Human Rights,” in Political Theory and the Rights of Man, ed. D. D. Raphael (Bloomington: Indiana University Press, 1967), 81. 3. Maurice Cranston, What Are Human Rights? (New York: Taplinger, 1973), 1. 4. Michael Freeman, Human Rights: An Interdisciplinary Approach (Malden, Mass.: Blackwell, 2002), 32. 5. A. Belden Fields, Rethinking Human Rights for the New Millennium (New York:

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Palgrave-­Macmillan, 2003), 33. For a sampling of similar views, see Gary B. Herbert, A Philosophical History of Rights (New Brunswick, N.J.: Transaction, 2002), 314, note 14. 6. Some accounts (e.g., Vladimir Kartashkin, “Economic, Social and Cultural Rights,” in The International Dimensions of Human Rights, ed. Karel Vasak and Philip Alston [Westport, Conn.: Greenwood Press, 1982], 111.) situate economic and social rights in the twentieth century, specifically relating them to the Soviet Constitution and other constitutional guarantees of economic and social protection (e.g., Mexico, Republican Spain during the 1930s, Weimar Germany) and also the founding of the International Labor Organization in 1919. 7. While �������������������������������������������������������������������� the work of Marx and Engels was the most comprehensive and sophisticated, socialist critiques of liberalism were legion, including writings by Proudhon, Cobbett, Spence, Ogilvie, and Bray. For a representative sample of their works, see Noel Thompson, The Real Rights of Man: Political Economies for the Working Class, 1775–­1880 (Sterling, Va.: Pluto Press, 1998). 8. Frederic Engels, Anti-­Dühring. From the Marx/Engels Archive Web site, http:// www.marxists.org/archive/marx/works/1877/anti-­duhring/introduction .htm. 9. Ibid. 10. The ICESCR does not describe these minimums in any detail. Setting minimum standards has occupied the CESCR, working in concert with the Programmes, Funds and Specialized Agencies operating under the auspices of the U.N. Economic and Social Council, as well as the International Labor Organization (ILO). The Committee also relies on development research and “best practice” data provided by civil society organizations in its efforts to identify standards and means to ensure them. 11. It is important to note that the Soviet, Ukrainian, Belorussian, Polish, and Yugoslavian abstentions on the vote to adopt the Universal Declaration of Human Rights were not due to their disagreement with civil and political rights but because the Declaration was devoid of language relating to state obligations. Thus, the rights in the Declaration would become, in the words of one of the Soviet delegates, “a mere abstraction, an empty illusion, easily created, but just as easily destroyed.” Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 21–­22. 12. We owe this dichotomy about rights to Isaiah Berlin. Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, 1969). For a discussion of its implications, see Peter Lamb, Harold Laski: Problems of Democracy, the Sovereign State, and International Society (New York: Palgrave Macmillan, 2004), 69–­70. 13. See especially Steven Lukes, “Can a Marxist Believe in Human Rights?” Praxis International 1, no. 4 (1982); Steven Lukes, Marxism and Morality (New York: Oxford University Press, 1987); and Steven Lukes, “Five Fables about Human Rights,” Dissent (1993). Marx’s first detailed critique of individual rights as contributing to the social alienation of man appears in his essay “On the Jewish Question,” in The Marx-­Engels Reader, ed. Robert C. Tucker (New York: W. W. Norton, 1972), 24–­51. 14. Pieter N. Drost, Human Rights as Legal Rights (Leiden: A. W. Sijthoff’s Uitgeversmij N.V., 1951), 33. 15. Moses Moskowitz, Human Rights and World Order (New York: Oceana, 1958), 25.

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254   Notes to Pages 212–213

16. Louis Henkin, “Introduction,” in The International Bill of Rights: The Covenant on Civil and Political Rights, ed. Louis Henkin (New York: Columbia University Press, 1981), 28. 17. Sharon Anderson-­G old, Cosmopolitanism and Human Rights (Cardiff: University of Wales Press, 2001), 45. 18. Lauren’s extensive account of the development of international human rights is exemplary in this respect: while Marx and Engels rejected liberal, bourgeois rights, they “emphasized instead the idea that although the state would eventually wither away, in the interim phase of perfecting a communist society the state should expand its authority so that each person, as a member of collective society, would be guaranteed his or her social and economic rights.” Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 56. Micheline Ishay’s rich account of the history of human rights, while contending that the ancestry of contemporary economic and social rights most definitely can be traced to nineteenth-­century socialism, takes into account a variety of socialisms as having some bearing on the development—­t hrough political struggle—­of the legitimacy of these rights claims. Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (Berkeley: University of California Press, 2004), 117–­72.

18587 Whelan_IndivisibleHumanRights_TX.indd 254

2/19/10 8:21:02 AM

Bibliography

Adegbite, Latif O. “African Attitudes to the International Protection of Human Rights.” In Nobel Symposium 7: International Protection of Human Rights, edited by Asbjorn Eide and August Schou, 69–­81. Stockholm: Almqvist and Wiksell, 1968. Alston, Philip. “Making Space for New Human Rights: The Case of the Right to Development.” Harvard Human Rights Yearbook 1 (1988): 3–­40. —­—­—­. “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights.” Human Rights Quarterly 9, no. 3 (1987): 332–­81. —­—­—­. “The Rights Framework and Development Assistance.” Development Bulletin 34 (1995): 9–­12 —­—­—­. “Ships Passing in the Night: The Current State of the Human Rights and Development Debate Seen Though the Lens of the Millennium Development Goals.” Human Rights Quarterly 27 (2005): 755–­829. —­—­—­. “The UN’s Human Rights Record: From San Francisco to Vienna and Beyond.” Human Rights Quarterly 16 (1994): 375–­90. Alston, Philip, and Gerard Quinn. “The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights.” Human Rights Quarterly 9 (1987): 156–­229. American Law Institute. “Statement of Essential Human Rights.” Annals of the American Academy of Political and Social Science 243 (1946): 18–­26. Anderson-­Gold, Sharon. Cosmopolitanism and Human Rights. Cardiff: University of Wales Press, 2001. Barton Perry, Ralph. “Universities Committee on Post-­War International Problems: Final Report on the World of the Committee, 1942–­1945.” In Universities Committee on Post-­War International Problems: Final Report, Problem Analyses, Summaries of Reports of Cooperating Groups, 1–­42. Boston: Universities Committee on Post-­War International Problems, 1945. Baylis, Charles A. “Towards an International Bill of Rights.” Public Opinion Quarterly 8, no. 2 (1944): 244–­53. Beetham, David. “What Future for Economic and Social Rights?” Political Studies 43 (1995): 41–­60. Belden Fields, A. Rethinking Human Rights for the New Millennium. New York: Palgrave-­Macmillan, 2003. Benn, Denis. Multilateral Diplomacy and the Economics of Change: The Third World and the New International Economic Order. Miami: Ian Randle, 2003. Berlin, Isaiah. Four Essays on Liberty. Oxford: Oxford University Press, 1969. Brown, Philip Marshall. “The New York Session of the Institut de Droit International.” American Journal of International Law 24, no. 1 (1930): 126–­28.

18587 Whelan_IndivisibleHumanRights_TX.indd 255

2/19/10 8:21:03 AM

256   Bibliography

Buitenweg, Rob. “The Right to Development as a Human Right?” Peace & Change 22, no. 4 (1997): 414–­31. Burgers, Jan Herman. “The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century.” Human Rights Quarterly 14 (1992): 447–­ 77. Cancado Trindade, Antonio A. “The Interdependence of All Human Rights—­ Obstacles and Challenges to Their Implementation.” International Social Science Journal 50, no. 158 (1998): 513–­23. Cassese, Antonio. “The General Assembly: Historical Perspectives, 1945–­1989.” In The United Nations and Human Rights: A Critical Appraisal, edited by Philip Alston, 25–­54. New York: Oxford University Press, 1995. Cerna, Christina M. “Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-­Cultural Contexts.” Human Rights Quarterly 16 (1993): 740–­52. Chace, James. 1912: Wilson, Roosevelt, Taft & Debs—­the Election That Changed the Country. New York: Simon and Schuster, 2004. Chapman, Audrey R. “A ‘Violations Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights.” Human Rights Quarterly 18 (1996): 23–­66. Clemenceau, Georges. “Letter Addressed to M. Paderewski by the President of the Conference Transmitting to Him the Treaty to Be Signed by Poland under Article 93 of the Treaty of Peace with Germany.” American Journal of International Law 13 (supplement), no. 4 (1919): 416–­22. Commission to Study the Organization of Peace. Building Peace: Reports of the Commission to Study the Organization of Peace, 1939–­1972. Vols. 1–­2. Metuchen, N.J.: Scarecrow Press, 1973. Cranston, Maurice. What Are Human Rights? New York: Taplinger, 1973. Craven, Matthew. The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development. London: Oxford University Press, 1995. Dankwa, Victor, Cees Flinterman, and Scott Leckie. “Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.” Human Rights Quarterly 20, no. 3 (1998): 705–­30. Dennis, Michael J., and David P. Stewart. “Justiciability of Economic, Social and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?” American Journal of International Law 98, no. 3 (2004): 462–­515. Dias, Clarence J. “The United Nations World Conference on Human Rights: Evaluation, Monitoring, and Review.” In United Nations-­Sponsored World Conferences: Focus on Impact and Follow-­Up, edited by Michael G. Schechter, 29–­62. New York: United Nations University Press, 2001. Donnelly, Jack. “Recent Trends in UN Human Rights Activity: Description and Polemic.” International Organization 35, no. 4 (1981): 633–­55. —­—­—­. “In Search of the Unicorn: The Jurisprudence and Politics of the Right to Development.” California Western International Law Journal 15 (1985): 473–­509. —­—­—­. Universal Human Rights in Theory and Practice. 2nd ed. Ithaca: Cornell University Press, 2003. Drost, Pieter N. Human Rights as Legal Rights. Leiden: A. W. Sijthoff’s Uitgeversmij N.V., 1951. Editors of the American Bar Association Journal. “Progress in the San Francisco Conference.” American Bar Association Journal 31 (1945): 279–­83, 329.

18587 Whelan_IndivisibleHumanRights_TX.indd 256

2/19/10 8:21:03 AM

Bibliography   257

Ellingston, John R. “The Right to Work.” Annals of the American Academy of Political and Social Science 243 (1946): 27–­39. Finch, George A. “The International Rights of Man.” American Journal of International Law 35, no. 4 (1941): 662–­65. Fleming, William. “Danger to America: The Draft Covenant on Human Rights (Part I).” American Bar Association Journal 37, no. 10 (1951): 739–­42, 94–­99. —­—­—­. “Danger to America: The Draft Covenant on Human Rights (Part II).” American Bar Association Journal 37, no. 11 (1951): 816–­20, 55–­60. Forsythe, David. “The United Nations, Human Rights, and Development.” Human Rights Quarterly 19, no. 2 (1997): 334–­49. Free World Editors. “Free World Recommends a Charter for the United Nations.” Free World 9, no. 5 (1945): 77–­83. Freeman, Michael. Human Rights: An Interdisciplinary Approach. Malden, Mass.: Blackwell, 2002. Ganji, Manouchehr. The Realization of Economic, Social and Cultural Rights: Problems, Policies and Progress. New York: United Nations, 1975. Ghai, Yash. Human Rights and Social Development: Toward Democratization and Social Justice. Geneva: United Nations Research Institute for Social Development, 2001. Gomez, Mario. “Social Economic Rights and Human Rights Commissions.” Human Rights Quarterly 17 (1995): 155–­69. Green, James Frederick. The United Nations and Human Rights. Washington, D.C.: Brookings Institution, 1956. Henkin, Louis. “The United Nations and Human Rights.” International Organization 19, no. 3 (1965): 504–­17. —­—­—­, ed. The International Bill of Rights: The Covenant on Civil and Political Rights. New York: Columbia University Press, 1981. Herbert, Gary B. A Philosophical History of Rights. New Brunswick, N.J.: Transaction Publishers, 2002. Hobbins, A. J., ed. On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights. Vol. 2, 1950–­1951. Montreal: McGill University Libraries, 1996. —­—­—­. On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights. Vol. 3, 1952–­1957. Montreal: McGill University Libraries, 1996. Holman, Frank E. “Human Rights on Pink Paper.” American Affairs 11 (1949): 18–­24. —­—­—­. “An ‘International Bill of Rights’: Proposals Have Dangerous Implications for U.S.” American Bar Association Journal 34 (1948): 984–­86, 1078–­81. —­—­—­. “International Proposals Affecting So-­Called Human Rights.” Law & Contemporary Problems 14 (1949): 479–­89. —­—­—­. “Treaty Law-­Making: A Blank Check for Writing a New Constitution.” American Bar Association Journal 36 (1950): 707–­10, 87–­90. Hull, Cordell. “The War and Human Freedom—­Radio Address Delivered on July 23, 1942.” US State Department Bulletin 7 (1942): 639–­47. Humphrey, John P. Human Rights and the United Nations: A Great Adventure. Dobbs Ferry, N.Y.: Transnational, 1984. International Commission of Jurists. “The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights.” Human Rights Quarterly 9, no. 2 (1987): 122–­35.

18587 Whelan_IndivisibleHumanRights_TX.indd 257

2/19/10 8:21:03 AM

258   Bibliography

—­—­—­. “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.” Human Rights Quarterly 20, no. 3 (1998): 691–­704. International Organization. “Economic and Social Council.” International Organization 8, no. 4 (1954): 519–­34. —­—­—­. “Social, Humanitarian and Cultural Matters.” International Organization 9, no. 1 (1955): 109–­25. —­—­—­. “Social, Humanitarian and Cultural Matters.” International Organization 10, no. 1 (1956): 91–­105. —­—­—­. “Social, Humanitarian and Cultural Questions.” International Organization 16, no. 1 (1962): 113–­37. Ishay, Micheline. The History of Human Rights: From Ancient Times to the Globalization Era. Berkeley: University of California Press, 2004. Jenks, C. Wilfred. “The Five Economic and Social Rights.” Annals of the American Academy of Political and Social Science 243 (1946): 40–­46. Kang, Susan L. “The Unsettled Relationship of Economic and Social Rights and the West: A Response to Whelan and Donnelly.” Human Rights Quarterly 31, no. 4 (2009): 1006–­29. Kartashkin, Vladimir. “Economic, Social and Cultural Rights.” In The International Dimensions of Human Rights, edited by Karel Vasak and Philip Alston, 111–­33. Westport, Conn.: Greenwood Press, 1982. Kay, David A. “The Politics of Decolonization: The New Nations and the United Nations Political Process.” International Organization 21, no. 4 (1967): 786–­ 811. Kelsen, Hans. Pure Theory of Law. Berkeley: University of California Press, 1967. Kent, George. “Realizing International Children’s Rights through Implementation of National Law.” International Journal of Children’s Rights 5 (1997): 439–­ 56. Kirkup, Alex, and Tony Evans. “The Myth of Western Opposition to Economic, Social and Cultural Rights? A Reply to Whelan and Donnelly.” Human Rights Quarterly 31, no. 1 (2009): 221–­38. Lamb, Peter. Harold Laski: Problems of Democracy, the Sovereign State, and International Society. New York: Palgrave Macmillan, 2004. Lauren, Paul Gordon. The Evolution of International Human Rights: Visions Seen. Philadelphia: University of Pennsylvania Press, 1998. Lauterpacht, H. An International Bill of the Rights of Man. New York: Columbia University Press, 1945. League of Nations. “Official Journal, Special Supplement 115, Records of the Fourteenth Ordinary Session of the League of Nations.” League of Nations, 1933. —­—­—­. “Official Journal, Special Supplement 120, Records of the Fourteenth Ordinary Session of the League of Nations.” League of Nations, 1933. Leckie, Scott. “Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights.” Human Rights Quarterly 20 (1998): 81–­124. Levine, Lawrence W., and Cornelia R. Levine. The People and the President: America’s Conversation with FDR. Boston: Beacon Press, 2002. Lewis, William Draper. “Human Rights in England and the United States.” Annals of the American Academy of Political and Social Science 243 (1946): 60–­66. Lukes, Steven. “Can a Marxist Believe in Human Rights?” Praxis International 1, no. 4 (1982): 334–­45. —­—­—­. “Five Fables about Human Rights.” Dissent (1993): 427–­37.

18587 Whelan_IndivisibleHumanRights_TX.indd 258

2/19/10 8:21:03 AM

Bibliography   259

—­—­—­. Marxism and Morality. New York: Oxford University Press, 1987. McCormick, James M., and Neil J. Mitchell. “Human Rights Violations, Umbrella Concepts, and Empirical Analysis.” World Politics 49, no. 4 (1997): 510–­25. McDougal, Myres S., and Gerhard Bebr. “Human Rights in the United Nations.” American Journal of International Law 58, no. 3 (1964): 603–­41. McGoldrick, Dominic. The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights. Edited by Ian Brownlie. Oxford Monographs in International Law. New York: Oxford University Press, 1991. Merali, Isfahan, and Valerie Oosterveld, eds. Giving Meaning to Economic, Social and Cultural Rights. Philadelphia: University of Pennsylvania Press, 2001. Merriam, Charles E. “The Content of an International Bill of Rights.” Annals of the American Academy of Political and Social Science 243 (1946): 11–­17. Morsink, Johannes. The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia: University of Pennsylvania Press, 1999. Moskowitz, Moses. Human Rights and World Order. New York: Oceana, 1958. —­—­—­. “Implementing Human Rights: Present Status and Future Prospects.” In Human Rights: Thirty Years after the Universal Declaration, edited by B. G. Ramcharan, 109–­30. The Hague: Martinus Nijhoff, 1979. Mower, A. Glenn. International Cooperation for Social Justice: Global and Regional Protection of Economic/Social Rights. Westport, Conn.: Greenwood Press, 1985. Nickel, James. “Rethinking Indivisibility: Towards a Theory of Supporting Relations between Rights.” Human Rights Quarterly 30, no. 4 (2008): 984–­1001. Normand, Roger, and Sarah Zaidi. Human Rights at the UN: The Political History of Universal Justice. Edited by Thomas Weiss. United Nations Intellectual History Project Series. Bloomington: Indiana University Press, 2007. O’Sullivan, Christopher D. Sumner Welles, Postwar Planning, and the Quest for a New World Order, 1937–­1943. New York: Columbia University Press, 2008. Otto, Diane. “Defending Women’s Economic and Social Rights: Some Thoughts on Indivisibility and a New Standard of Equality.” In Giving Meaning to Economic, Social, and Cultural Rights, edited by Isfahan Merali and Valerie Oosterveld, 52–­67. Philadelphia: University of Pennsylvania Press, 2001. Pechota, Vratislav. “The Development of the Covenant on Civil and Political Rights.” In The International Bill of Rights: The Covenant on Civil and Political Rights, edited by Louis Henkin, 32–­71. New York: Columbia University Press, 1981. Pitts III, Joe W., and David Wiessbrodt. “Major Developments at the UN Commission on Human Rights in 1992.” Human Rights Quarterly 15, no. 1 (1992): 122–­96. Puta-­Chekwe, Chisanga, and Nora Flood. “From Division to Integration: Economic, Social, and Cultural Rights as Basic Human Rights.” In Giving Meaning to Economic, Social and Cultural Rights, edited by Isfahan Merali and Valerie Oosterveld, 39–­51. Philadelphia: University of Pennsylvania Press, 2001. Raphael, D. D. “Human Rights, Old and New.” In Political Theory and the Rights of Man, edited by D. D. Raphael, 54–­67. Bloomington: Indiana University Press, 1967. Reagan, Patrick D. Designing a New America: The Origins of New Deal Planning, 1890–­1943. Amherst: University of Massachusetts Press, 1999. Robertson, Robert E. “Measuring State Compliance with the Obligation to Devote the ‘Maximum Available Resources’ to Realizing Economic, Social and Cultural Rights.” Human Rights Quarterly 16 (1994): 693–­714.

18587 Whelan_IndivisibleHumanRights_TX.indd 259

2/19/10 8:21:03 AM

260   Bibliography

Roosevelt, Franklin D. “The Annual Message to the Congress. January 6, 1941.” In Public Papers and Addresses of Franklin D. Roosevelt, 663–­72. London: Macmillan, 1941. —­—­—­. “The Atlantic Charter. Official Statement on Meeting between the President and Prime Minister Churchill. August 14, 1941.” In Public Papers and Addresses of Franklin D. Roosevelt, 314–­15. New York: Harper and Brothers, 1950. —­—­—­. “‘New Conditions Impose New Requirements upon Government and Those Who Conduct Government’—­Campaign Address on Progressive Government at the Commonwealth Club. San Francisco, Calif. September 23, 1932.” In The Public Papers and Addresses of Franklin D. Roosevelt (Vol. 1), 742–­56. New York: Russell and Russell, 1938. —­—­—­. “‘Unless There Is Security Here at Home, There Cannot Be Lasting Peace in the World’—­Message to the Congress on the State of the Union. January 11, 1944.” In Public Papers and Addresses of Franklin D. Roosevelt (Vol. 13), 32–­42. New York: Harper and Brothers, 1950. —­—­—­. “‘We Are Fighting to Save a Great and Precious Form of Government for Ourselves and the World’—­Acceptance of the Re-­Nomination for the Presidency, Philadelphia, Pa., June 27, 1936.” In The Public Papers and Addresses of Franklin D. Roosevelt (Vol. 5), 230–­36. New York: Random House, 1938. Russell, Ruth B. A History of the United Nations Charter. Washington, D.C.: Brookings Institution, 1958. Samnoy, Ashlid. Human Rights as International Consensus: The Making of the Universal Declaration of Human Rights, 1945–­1948. Bergen: Chr. Michelsen Institute (CMI), 1993. Sano, Hans-­Otto. “Development and Human Rights: The Necessary, but Partial Integration of Human Rights and Development.” Human Rights Quarterly 22 (2000): 734–­52. Schechter, Michael G. United Nations Global Conferences. New York: Routledge, 2005. Schneider, Peter. “Social Rights and the Concept of Human Rights.” In Political Theory and the Rights of Man, edited by D. D. Raphael, 81–­94. Bloomington: Indiana University Press, 1967. Schulz, William. In Our Own Best Interest: How Defending Human Rights Benefits Us All. Boston: Beacon Press, 2001. Schwelb, Egon. “Some Aspects of the International Covenants on Human Rights of December 1966.” In Nobel Symposium 7: International Protection of Human Rights, edited by Asbjorn Eide and August Schou, 103–­29. Stockholm: Almqvist and Wiksell, 1968. Scott, Craig. “The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights.” Osgoode Hall Law Journal 27 (1989): 769–­875. —­—­—­. “Reaching Beyond (without Abandoning) the Category of ‘Economic, Social and Cultural Rights.’” Human Rights Quarterly 21, no. 3 (1999): 633–­60. Scott, James Brown. “The American Institute of International Law.” American Journal of International Law 10, no. 1 (1916): 121–­26. —­—­—­. “The Two Institutes of International Law.” American Journal of International Law 26, no. 1 (1932): 87–­102. Sellars, Kirsten. The Rise and Rise of Human Rights. Gloucestershire, U.K.: Sutton Publishing, 2002. Sengupta, Arjun. “The Human Right to Development.” Oxford Development Studies 32, no. 2 (2004): 179–­203.

18587 Whelan_IndivisibleHumanRights_TX.indd 260

2/19/10 8:21:03 AM

Bibliography   261

—­—­—­. “Realizing the Right to Development.” Development and Change 31 (2000): 553–­78. Shestack, Jerome J. “The Jurisprudence of Human Rights.” In Human Rights in International Law: Legal and Policy Issues, edited by Theordor Meron, 69–­113. New York: Oxford University Press, 1984. Shotwell, James T. “The Idea of Human Rights.” International Conciliation, no. 426 (1946): 551–­57. Simmons, David A. “Man’s One Fundamental Right: To Be Let Alone.” American Bar Association Journal 36 (1950): 711–­14, 90–­92. Sohn, Louis B. “How American International Lawyers Prepared for the San Francisco Bill of Rights.” American Journal of International Law 89, no. 3 (1995): 540–­53. Streit, Clarence. Union Now: A Proposal for a Federal Union of the Democracies of the North Atlantic. New York: Harper and Brothers, 1939. Sullivan, Donna. “Women’s Human Rights and the 1993 World Conference on Human Rights.” American Journal of International Law 88, no. 1 (1993): 152–­ 67. Sunstein, Cass R. The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. New York: Basic Books, 2004. Thompson, Noel. The Real Rights of Man: Political Economies for the Working Class, 1775–­1880. Sterling, Va.: Pluto Press, 1998. Tolley, Howard. The U.N. Commission on Human Rights. Boulder, Colo.: Westview Press, 1987. Tucker, Robert C., ed. The Marx-­Engels Reader. New York: W. W. Norton, 1972. U.K. Department for International Development. “Realising Human Rights for Poor People.” In Strategies for Achieving the International Development Targets. London: Department for International Development, 2000. Umozurike, U.O. “Human Rights and Development.” International Social Science Journal 156 (1998): 535–­43. U.N. Division of Human Rights. “Draft Outline of an International Bill of Human Rights (Prepared by the Division of Human Rights of the Secretariat).” In Yearbook on Human Rights for 1947, edited by United Nations. New York: United Nations, 1947. United States Department of State. Foreign Relations of the United States 1950. Vol. 2, The United Nations; The Western Hemisphere. Washington, D.C.: U.S. Government Printing Office, 1976. —­—­—­. Foreign Relations of the United States 1951. Vol. 2, The United Nations; The Western Hemisphere. Washington, D.C.: U.S. Government Printing Office, 1979. —­—­—­. Foreign Relations of the United States, 1964–­1968. Edited by Edward C. Keefer. Vol. 33, Organization and Management of U.S. Foreign Policy; United Nations, Foreign Relations of the United States. Washington, D.C.: United States Government Printing Office, 2004. —­—­—­. Foreign Relations of the United States, 1964–­1968. Edited by David S. Patterson. Vol. 34, Energy Diplomacy and Global Issues, Foreign Relations of the United States. Washington, D.C.: United States Government Printing Office, 1999. —­—­—­. Postwar Foreign Policy Preparation: 1939–­1945. Washington, D.C.: U.S. Department of State, 1949. United States National Resources Planning Board. National Resources Development Report for 1942. Washington, D.C.: National Resources Planning Board, 1942. —­—­—­. National Resources Development Report for 1943: Part I. Post-­War Plan and Program. Washington, D.C.: National Resources Planning Board, 1943.

18587 Whelan_IndivisibleHumanRights_TX.indd 261

2/19/10 8:21:03 AM

262   Bibliography

Universities Committee on Post-­War International Problems. “Universities Committee on Post-­War International Problems, Summaries of Reports of Cooperating Groups, X—­Protection by International Action of the Freedom of the Individual within the State.” International Conciliation, no. 405 (1944): 711–­21. van Boven, Theodoor C. “Distinguishing Criteria of Human Rights.” In The International Dimensions of Human Rights, edited by Karel Vasak and Philip Alston. Westport, Conn.: Greenwood Press, 1982. van Dijk, Pieter. “A Common Standard of Achievement: About Validity and Uniform Interpretation of International Human Rights Norms.” Netherlands Quarterly of Human Rights 2 (1995): 105–­21. Van Tuijl, Peter. “Entering the Global Dealing Room: Reflections on a Rights­Based Framework for NGOs in International Development.” Third World Quarterly 21, no. 4 (2000): 617–­26. Wells, H. G. The New World Order. New York: Knopf, 1940. Whelan, Daniel J., and Jack Donnelly. “The Reality of Western Support for Economic and Social Rights: A Reply to Susan L. Kang.” Human Rights Quarterly 31, no. 4 (2009): 1030–­54. —­—­—­. “The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight.” Human Rights Quarterly 29, no. 4 (2007): 908–­49. —­—­—­. “Yes, a Myth: A Reply to Kirkup and Evans.” Human Rights Quarterly 31, no. 1 (2009): 239–­55. World Citizens Association. “Proceedings of the Onwentsia Conference.” Paper presented at the Onwentsia Conference, Onwentsia County Club, Wake Forest, Ill., 1941. Wright, Quincy. “Human Rights and World Order.” International Conciliation 389 (1943): 238–­62. —­—­—­. “Problem X: The Protection by International Action of the Freedom of the Individual within the State.” In Universities Committee on Post-­War International Problems: Final Report on the Work of the Committee, 1942–­1945, 24. Boston: Universities Committee on Post-­War International Problems, 1943. Wright, Shelley. International Human Rights, Decolonisation and Globalisation. New York: Routledge, 2001.

18587 Whelan_IndivisibleHumanRights_TX.indd 262

2/19/10 8:21:03 AM

Index

Abram, Morris, 152 Acheson, Dean, 110 Alfaro, Richard J., 12, 14 ALI. See American Law Institute Statement of Essential Human Rights Alston, Philip, 5, 170-­71, 182, 192, 198 American Bar Association (ABA), and opposition to human rights treaties, 39 n.27 American Institute of International Law. See Declaration of the Rights and Duties of States American Law Institute Statement of Essential Human Rights, 12, 32, 48, 54, 196; compared to CSOP Bill of Rights, 35-­4 0; compared to Secretariat Outline of Universal Declaration, 21-­21; drafting history of, 13-­14; echoed by Maastricht Guidelines, 196; enumerated rights in, 15-­16; and Roosevelt’s Second Bill of Rights, 30­31; and state obligations, 17-­21. See also Shotwell, James Anticolonialism. See Colonialism Apartheid: in General Assembly Resolution 32/130, 162, 165, 168; in South Africa, 137, 156; and racism/ racial discrimination, 7, 137, 143, 146, 154; at World Conference on Human Rights, 144-­4 6, 149, 150, 151, 153 Arab-­Israeli War (1967), 144 Atlantic Charter (1941), 34-­35, 37, 40. See also Roosevelt, Franklin D. Balkan Crisis (1876), 48 Bangkok Declaration, 186-­87. See also World Conference on Human Rights Beetham, David, 197-­98 Berle, Adolf, 29-­30, 40, 41

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Bismarck, Otto von, 48 Brownlow, Louis, 26 Cassin, René, 4, 71, 74, 91, 95, 98-­9 9, 103-­4, 107 Chapman, Audrey, 194-­95 Charter of the Economic Rights and Duties of States, 157, 161. See also New International Economic Order Cohen, Benjamin V., 41 Cold War: Commission on Human Rights as a theater of, 134; end of and reemergence of human rights, 8, 184, 185, 206; and responsibility for separate covenants, 12, 62-­65, 134, 191, 208 Colonialism: 7, 86, 137, 144, 153, 154, 214; and General Assembly resolution 32/130, 156, 158, 162, 165, 168; at International Conference on Human Rights, 144-­45, 150, 151; and Third Committee of General Assembly, 87. See also U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples Commission on Human Rights. See U.N. Commission on Human Rights Commission to Study the Organization of Peace (CSOP) Bill of Rights, 33, 36, 38-­4 0, 47; compared to American Law Institute Statement, 35-­4 0. See also Shotwell, James Committee on Economic, Social and Cultural Rights (CESR), 6; establishment of, 174, 180-­82; jurisprudence of, 182-­84, 190, 193, 196. See also International Covenant on Economic, Social and Cultural Rights; Limburg Principles; Maastricht Guidelines

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264   Index Communism, 26, 65, 89; American Bar Association fearful of, 39 n.27. See also Marxism; Socialism Communist bloc. See Soviet bloc Convention Against Torture, 202 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 202 Convention on the Elimination of All Forms of Racial Discrimination (CERD), 137, 142-­4 4, 148, 151-­52, 181, 202. See also Apartheid; International Court of Justice Covenant on Human Rights, draft of (1947-­52), 2, 6, 7, 59, 61-­62, 65-­66; 1947 UK draft of, 66-­67; arguments for including economic, social and cultural rights in, 75-­77; Commission on Human Rights decision not to include economic and social rights in, 68-­70; early views of scope of, 60; procedure and timeline, 215-­17. See also Economic and Social Council resolution 303 (XI); U.N. General Assembly Resolutions, Resolution 421 (V); Historiography of Covenants; U.N. Commission on Human Rights, seventh session Craven, Matthew, 64, 191 Croly, Herbert (Promise of American Life), 29 Cultural relativism, 186. See also Bangkok Declaration; World Conference on Human Rights Declaration of the International Rights of Man (1929), 14, 47-­52 Declaration of the Rights and Duties of States (1916), 48, 50-­53 Development Decades. See U.N. Development Decades Donnelly, Jack, 156, 157, 171, 192 Dulles, John Foster, 38 Dumbarton Oaks Conference, 38, 42 Economic Bill of Rights. See Roosevelt, Franklin D. Eisenhower administration: and abstention on the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples, 142 n.24; and position on human rights

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treaties, 133, 138. See also American Bar Association Ellingston, John, 19-­21 Engels, Friedrich, 211 Four Freedoms Speech. See Roosevelt, Franklin D. Free World (magazine) Bill of Rights, 47. See also Wells, H. G. French Declaration of the Rights of Man and Citizen, 74 Ganji, Manouchehr, 157-­6 0 Generations of human rights, 64, 208-­12. See also Vasak, Karel Group of 77, 156 Hierarchies of human rights: favoring civil and political rights, 62-­63, 71, 119­20, 121, 126, 198 Historiography of Covenants, 62-­66 Hull, Cordell, 40-­41 Human Rights Committee, 4, 69, 103-­5, 113, 152, 174, 180, 181 Human Rights Court, Australian proposal for, 69 Humphrey, John: on debates over General Assembly Resolution 421 (V), 84­86, 88; on Eleanor Roosevelt, 91; on reconsideration of General Assembly Resolution 421 (V), 114-­15, 124, 128, 130; reporting procedure for economic, social and cultural rights, proposal of, 102-­4, 113; and Secretariat Outline of Universal Declaration, 12, 13, 21-­23, 30; on Seventh Session of Commission on Human Rights, 91-­93, 99, 100, 101, 114 India, proposal for reconsideration of General Assembly Resolution 421 (V), 105-­10. See also Mehta, Hansa Interdependency of human rights, 2-­6, 8, 20, 59, 71, 84, 156, 165, 167, 173, 178­80, 184, 207-­9. See also Interrelatedness International Commission of Jurists, 183, 195 International Conference on Human Rights (1968), 7, 136, 138, 153, 180; agenda of, 145; Final Act of, 148; General Assembly resolutions following from, 153 n.80; preparation for, 143-

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Index   265 ­ 4; proceedings of, 145-­4 8; revisionism 4 at, 150-­52. See also Proclamation of Teheran International Court of Justice (ICJ), South-­West Africa cases, 152, 181 International Covenant on Civil and Political Rights (ICCPR), 62, 187; differences with International Covenant on Economic, Social and Cultural Rights, 4, 5, 180, 178, 181, 190; finalization of drafting of, 133, 140; and First Optional Protocol (complaints procedure), 190, 202, 203; monitoring of compliance with, 4, 152, 174, 178, 179. See also Covenant on Human Rights, draft of (1947-­52); International Covenant on Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights: 1, 49, 62, 114, 175, 181, 187, 191; Article 2 of, 42, 89, 96, 140, differences with International Covenant on Civil and Political Rights, 4, 5, 178, 180, 181, 190; drafting of after 1952, 64, 139, 140-­41; monitoring of (reporting procedure), 155-­56, 165, 174, 178, 180; Optional Protocol to, 6, 180, 199-­206; and Vienna Convention on the Law of Treaties, 184. See also Covenant on Human Rights, draft of; Justiciablity; Limburg Principles; Maastricht Guidelines International Labor Organization (ILO), 34, 47, 70, 73, 74, 102; as “territorial,” 84-­85, 92, 104. See also Jenks, C. Wilfred; U.N. Specialized Agencies International Law Commission, 159, 183 Interrelatedness of human rights, 2-­6, 8, 121, 173, 188, 189, 207. See also Interdependency Institut de Droit International. See Declaration of the International Rights of Man Jenks, C. Wilfred, 18-­19, 20-­21, 92 Jevremovic, Branko, 70-­71 Johnson, Alvin, 35-36 Johnson, Lyndon B., 152-­53 Jus cogens, 55 Justiciability, 4, 189-­94; of civil and political rights, 117, 119, 131; of

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economic, social and cultural rights, 105, 107, 134, 179, 199, 204, 208; of the right to development, 168, 170. See also International Covenant on Economic, Social and Cultural Rights, Optional Protocol to; Kelsen, Hans; Limburg Principles; Maastricht Guidelines Kelsen, Hans, 192. See also Justiciability Lapradelle, Albert de, 50 Lauterpacht, Hersch, 33, 54, 55-­58 League of Nations, 33, 34, 36, 47, 61, 102; Association of, 38; and proposal to universalize minority rights, 51-­52 Leckie, Scott, 191, 197, 198 Lewis, William Draper, 13, 14, 18 Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 183-­84, 190, 192, 193, 195, 197 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 195-­9 9 Malik, Charles, 71, 91, 99, 102, 104, 109-­10 Mandelstam, André, 50-­51 Marx, Karl, 211, 213 Marxism, 43, 165, 209, 212. See also Communism; Socialism McCarran Act, 122 Mehta, Hansa, 98, 106, 193, 205. See also India Merriam, Charles, 18 Middleton, Drew, 144 Morosov, P. D., 97, 98 Morsink, Johannes, 9, 11, 21, 57, 216 Moskowitz, Moses, 176-­77, 178 National Resources Planning Board (NRPB), Economic Bill of Rights, 13, 18, 26-­29, 31, 40. See also Roosevelt, Franklin D. New International Economic Order (NIEO), 138, 155-­58, 167, 170, 174­75, 207, 214; implementation of as prerequisite for realization of human rights, 162-­63, 165; and Third World solidarity, 156. See also Charter of the Economic Rights and Duties of States

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266   Index Nickel, James, 3 Non-­A ligned Movement, 142 n.23, 156 Proclamation of Teheran (1968), 7, 8, 136, 148-­50, 154, 164, 165. See also International Conference on Human Rights Rajchman, Ludwik, 36 Right to development, 114, 179, 182, 196, 197, 210; basis in General Assembly Resolution 32/130, 167-­68, 173; first appearance in U.N document, 168 n.49; General Assembly resolutions on, 175; as repository for revisionism, 180, 188. See also U.N. Declaration on the Right to Development Right to education: in American Law Institute Statement, 16, 18, 22, 44-­45, 93, 119; in Commission to Study the Organization of Peace Bill of Rights, 39-­4 0; Committee on Economic, Social and Cultural Rights General Comment on, 184 n.26; compulsory in U.S., 119, 193; in Lauterpacht Bill of Rights, 56-­57; in National Resources Planning Board Bill of Economic Rights, 27­28; proposals for in draft Covenant, 89-­9 0, 93; in Roosevelt Second Bill of Rights, 25; in Secretariat Outline of Universal Declaration, 22; Universities Committee on, 38; in U.S. State Department Bill of Rights, 42; in Wells Declaration, 44-­45 Right to food: in American Law Institute Statement, 16, 17, 20, 23, 40; Committee on Economic, Social and Cultural Rights General Comment on, 184 n.26; in National Resources Planning Board Bill of Economic Rights, 28; in Roosevelt’s Second Bill of Rights, 25; in Secretariat Outline of the Universal Declaration, 23 Right to health: in American Law Institute Statement, 17, 19, 23; Committee on Economic, Social and Cultural Rights General Comment on, 184 n.26; draft article on, 93; proposals for in draft Covenant, 89-­9 0, 92; in Roosevelt Second Bill of Rights, 25; in Secretariat Outline of Universal

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Declaration, 23; violations of, 195; in Wells Declaration, 44. Right to housing: in American Law Institute Statement, 16, 17, 20-­21, 23, 40; Committee on Economic, Social and Cultural Rights General Comment on, 184 n.26; draft article on, 93; proposals for in draft Covenant, 90; in Secretariat Outline of Universal Declaration, 23; state obligations regarding, 30, 195, 205. Right to property: absence from Commission to Study the Organization of Peace Bill of Rights, 39; absence from Covenants, 138; in American Law Institute Statement, 14, 16, 22; debate/decision not to include in draft Covenant, 93-­96; in Declaration of the International Rights of Man, 49; Engels’s view of, 211; in Free World Bill of Rights, 47; Roosevelt’s view of, 29­30; in Secretariat Outline of Universal Declaration, 22; in Statement on the Rights and Duties of Nations, 52-­53; in U.S. State Department Bill of Rights, 42; in Wells Declaration, 45. Right to self-­determination: attachment to postcolonial goals, 106, 120, 122, 134, 137, 154; as a collective right, 123, 132, 210; in Covenants, 4; debates about inclusion in draft Covenant, 66, 91, 113, 123-­24; drafting of article in Covenants on, 137-­40; in General Assembly Resolution 32/130, 161, 162, 163, 168; as a human right, 7, 62, 63, 154; John Humphrey on, 86, 124-­25, 130; at International Conference on Human Rights, 145-­46; replaced by “democracy” at World Conference on Human Rights, 188; and right to development, 170; Soviet violation of in Crimea, 125; in U.N. Declaration on Granting of Independence, 142; violations of subject to complaints procedure, 203 Right to social security: in American Law Institute Statement, 14, 16, 17, 20, 21, 23; in Atlantic Charter, 34; in Commission to Study the Organization of Peace Bill of Rights, 40; draft article on, 93; in National Resources Planning Board Bill of Economic Rights, 27, 30-

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Index   267 ­ 1; in Secretariat Outline of Universal 3 Declaration, 23; and World Citizens Association, 36 Right to work/reasonable conditions of work: in American Law Institute Statement, 14, 16-­18, 19-­20, 23, 40; Committee on Economic, Social and Cultural Rights General Comment on, 184 n.26; draft article on, 93; Lauterpacht on, 56-­57; in National Resources Planning Board Bill of Economic Rights, 27-­28, 29; proposals for in draft Covenant, 66; Roosevelt’s views on, 27, 35; in Secretariat Outline of Universal Declaration, 23; Shotwell on, 54; in U.S. State Department Bill of Rights, 41, 42; violations of, 195; in Wells Declaration, 45; in World Citizens Association Bill of Rights, 36 Roosevelt, Eleanor: Chair of Commission on Human Rights, 67, 86, 91, 134; and John Humphrey, 86, 88, 91; meetings with administration officials, 110-­11, 129; representing U.S. on Commission on Human Rights, 79, 90, 93-­95; 107, 108, 131, 193 Roosevelt, Franklin D.: Four Freedoms speech, 25-­26; and GI Bill of Rights, 25-­26; and Second Bill of Rights, 13, 24-­31; and U.S. State Department postwar planning, 40-­42. See also Atlantic Charter; National Resources Planning Board; Sunstein, Cass Roosevelt, Theodore, 29 Rusk, Dean, 152 San Francisco Conference on International Organization (1945), 12, 38, 39, 39 n.27 Santa Cruz, Hernan, 93-­94, 106 Schulz, William, 20 n.48 Scott, Craig, 1, 64 Second Bill of Rights. See Roosevelt, Franklin D. Sengupta, Arjun, 171-­72 Shotwell, James, 38, 40-­41, 53, 54. See also Commission to Study the Organization of Peace; U.S. Department of State; Universities Committee on Postwar International Problems Simsarian, James, 91 n.22

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Six-­Day War (1967), 144 Socialism, 32, 43-­4 4, 209, 210-­13. See also Communism; Marxism Socialist origins of economic, social and cultural rights, 32, 53-­54, 212 Sohn, Louis, 12, 14, 28, 51 Soviet bloc (communist bloc), 80, 85, 106, 121, 125, 126, 132, 157, 185 Soviet Union, 21, 43, 57, 75, 106, 116, 117, 177; and Cold War ideological differences with U.S., 62, 65, 107-­8, 111, 122, 124-­25, 134, 211; draft articles on economic, social and cultural rights proposed by, 66-­67, 78-­80, 82, 89, 92­93, 134; economic, social and cultural rights in Soviet Constitution, 76, 133; France critical of, 81; at International Conference on Human Rights (1968), 145, 147, 149, 150; and opposition to international monitoring/enforcement of human rights, 61, 69, 78, 104, 128; and opposition to Nationalist Chinese representation at U.N., 69, 91, 125; and right to property in draft Covenant, 93­95. See also Morosov, P. D.; Soviet bloc Specialized Agencies. See U.N. Specialized Agencies Statement of Essential Human Rights. See American Law Institute Statement of Essential Human Rights Streit, Clarence (Union Now), 43 n.50 Sunstein, Cass, 19, 24, 29, 192. See also Roosevelt, Franklin D. Taft-­Hartley Act, 122 Teheran Conference. See International Conference on Human Rights Truman, Harry S., 110 U.N. Commission on Human Rights: eighth, ninth, and tenth sessions of, 217; establishment of, 59; fifth session of, 59, 66-­68, 217; seventh session of, 90-­110, 217; sixth session of, 68-­71, 217. See also Covenant on Human Rights, draft of; Humphrey, John; Malik, Charles; Roosevelt, Eleanor U.N. Conference on Trade and Development (UNCTAD), 156 U.N. Declaration on the Elimination of All Forms of Racial Discrimination, 142-­43

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268   Index U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), 141-­42, 143, 148, 154; Special Committee on implementation of, 142, 146; U.S. abstention on vote for, 142 n.24. See also Colonialism U.N. Declaration on the Right to Development (1986), 8, 155, 167-­72, 175. See also Right to development U.N. Development Decades: First, 142, 149; Second, 143, 153; Third, 167 U.N. Economic and Social Council Resolutions: Resolution 303 (XI), 72, 77, 78, 79, 217; Resolution 384 (XIII), 117, 125, 126, 129, 217 U.N. General Assembly Resolutions: Resolution 217 (III) (1948), 76, 217; Resolution 421 (V) (1950), 59, 65-­66, 113, 132, 148, 208; —, Commission on Human Rights implementation of, 90-­91; —, debate over, 80-­82; —, drafting of, 77-­80; —, reconsideration of, 105-­10, 114-­28; Resolution 543 (VI) (1952), 66, 130, 136, 217; —, debate over, 130-­33; —, drafting of, 125-­28; Resolution 1514 (XV) (1960), 142; Resolution 2200 (XXI) (1966), 141; Resolution 32/130 (1977), 8, 138, 145, 153, 177, 178; —, content of, 161-­6 4; —, debate over, 164-­67; —, demise of formulation, 172-75; —, rhetoric of, 155-­56, 158, 180; —, and right to development, 167-­69, 171; Resolution 41/128 (1986), 169. See also Humphrey, John; India; Moskowitz, Moses; right to development; U.N. Declaration on the Right to Development; U.S. Department of State U.N. General Assembly Second Committee, 153 n.81, 157, 161 U.N. High Commissioner for Human Rights: developing states opposed to, 163; establishment of recommended by Vienna Declaration, 189; U.S. early support for, 150, 152 Universal Declaration of Human Rights (1948): adoption of, 60, 58, 59; and American Law Institute Statement, 16­17, 30, 32; drafting of, 9, 14, 53, 57, 61, 68, 216; economic, social and cultural

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rights in, 66, 67, 75, 76, 79, 97, 153; as “foundational,” 143, 154, 160, 161, 187, 208; group rights in, 123; “indivisible” not appearing in, 2; not legally binding, 61, 81, 109, 132; organic or fundamental unity of, 2, 9, 11-­12, 75­76, 121, 126, 128, 137, 154, 208, 213-­14; and relationship to Covenants, 2, 6, 59, 62-­63, 65, 74, 76, 78, 83-­84, 106, 121, 130, 136; right to property in, 93-­95; Secretariat Outline of, 12, 13, 21-­23 Universities Committee on Postwar International Problems, 33, 36-­38, 40, 41, 47. See also Wright, Quincy U.N. Specialized Agencies: human rights activities of, 65, 73, 189; negotiations with the United Nations, 84, 101-­2 ; and Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 200, 202, 205; role in drafting articles on economic, social and cultural rights in Covenant, 70, 71, 74, 91, 92; role in promoting economic, social and cultural rights, 60, 67, 68, 78, 82, 89, 98, 118; role in reporting procedure for International Covenant on Economic, Social and Cultural Rights, 67, 101-­2 , 104, 107, 112-­14, 182 U.S. Department of State: draft International Bill of Rights, 33, 38, 40-­­42, 47, 92; and instructions for Commission on Human Rights (seventh session), 88-­­90, 92; and instructions for Economic and Social Council (eleventh session), 111; and instructions for General Assembly (sixth session), 129; and “post-­­mortem” on General Assembly resolution 421 (V), 87-­­88. See also Roosevelt, Eleanor U.S. House of Representatives: Committee on Un-­A merican Activities, 122 U.S. Senate, potential opposition to human rights Covenant, 110 van Boven, Theo, 169 Vasak, Karel, 209. See also Generations of human rights Vienna Conference. See World Conference on Human Rights

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Index   269 Vienna Convention on the Law of Treaties (1969), 184 Vienna Declaration and Programme of Action (1993), 8, 179, 187-­89, 198. See also World Conference on Human Rights (1993) Vitoria, Francisco de, 36 n.8 Welfare state, 12, 13, 26, 30, 32, 54, 193, 196, 197, 212-­13 Welles, Sumner, 40, 41 Wells, H. G., Declaration of the Rights of Man, 33, 42-­47

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Whitlam, H.F.E., 70 World Citizen Association, Bill of Rights (1941), 33-­36 World Conference on Human Rights (1993), 137, 144, 151, 153, 156, 167, 175, 189-­80; participation by NGOs at, 186; preparations for, 184-­86; and women’s human rights, 186. See also Vienna Declaration and Programme of Action World Health Organization (WHO), 89, 92, 158 Wright, Quincy, 33-37, 47, 054

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Acknowledgments

The help, advice, and guidance of many people animate this work. I would like to thank especially Jack Donnelly, David Levine, and Nicholas Onuf for inspiring me and extending to me enormous patience as I let the project simmer and stew. Several colleagues at the University of Denver’s Korbel School of International Studies, especially Tom Farer, Frank Laird, Micheline Ishay, Alan Gilbert, and George DeMartino, also provided enormous encouragement and advice on the project. I would also like to thank the anonymous reviewers of the manuscript for their insightful and constructive feedback. The completion of this book would not have been possible without the research and travel support of my home institution, Hendrix College. The bulk of supplementary research and writing was made possible through a Visiting Research Fellowship at the Ralph Bunche Institute for International Studies at the Graduate Center, City University of New York, during the summer of 2006. I would like to thank the Institute’s Director, Thomas G. Weiss, for making that fellowship possible. I also appreciate the help of the library staff in charge of the U.N. Collection housed in the Bobst Library at New York University, where I spent a number of weeks during that summer reading through their bound collection of summary records (which are extremely difficult to find in bound form, especially during that early period of the U.N.’s history).

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