The Failure of UDHR

The Failure of the Universal Declaration of Human Rights
Author(s): Jacob Dolinger

Source: The University of Miami Inter-American Law Review, Vol. 47, No. 2 (Summer
2016), pp. 164-199
Published by: University of Miami Inter-American Law Review
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ARTICLES
The Failure of the Universal Declaration
of Human Rights *
Jacob Dolinger**
The UN Human Rights Commission dedicated over two

years to the drafting of the Universal Declaration of Human
Rights, which was approved by the General Assembly in
1948.
The underlying reason for the Declaration was the gen-
ocide executed by Hitler’s Nazi Germany against the Jewish
people throughout Europe during the Second World War.
The fundamental mistake of the Commission was that the
persecution by the Nazis was not directed against individual
persons, but against an entire people, whereas the Declara-
tion deals exclusively with the rights of the individual human
being, no reference whatsoever made in the document to col-
lectivities.
Moreover, the Declaration has no force of law as it is a
mere declaration with no effect over the horrors suffered by
many peoples since its adoption by the UN. Therefore it is
not correct to incorporate it in the realm of International
Law.
Considering that the majority of the UN state members
do not comply with the principles of the Declaration, and
that the international organization has practically never
come to the help of communities under the most cruel perse-
cutions, victims of terrible atrocities, real genocides, the au-
thor concludes - despite a series of United Nations procla-
mations and in disagreement with illustrious authors of in-
ternational law - that the Universal Declaration of Human
Rights has been a total failure.
*
The present essay is a shortened version of a chapter of “THE CASE FOR
CLOSING THE UNITED NATIONS – International Human Rights – A Study in
Hypocrisy” to be published by Gefen Publishing House.
**
Professor (ret.) of the State University of Rio de Janeiro School of Law.
164
SUMMER 2016] UNIVERSAL DECLARATION ON HUMAN RIGHTS 165
I. THE ORIGINS OF THE UNIVERSAL DECLARATION ON HUMAN

RIGHTS ...................................................................................166
II. CHARACTERIZATION OF THE UNIVERSAL DECLARATION .........182
III. CONCLUSION ..........................................................................199
166 INTER-AMERICAN LAW REVIEW [Vol. 47:2
I. THE ORIGINS OF THE UNIVERSAL DECLARATION ON HUMAN

RIGHTS
The supposedly basic inspiration for drafting the Universal Dec-
laration of Human Rights (the “UDHR” or “Declaration”) was the
cruel persecution, horrors, and atrocities perpetrated by the Nazi re-
gime against the Jews of Europe during the Holocaust. Johannes
Morsink, who examined the records of hundreds of meetings of the
different United Nations’ (UN) bodies whose efforts resulted in the
final draft of the Declaration, wrote the most thorough report on the
origins, drafting, and intent of the Declaration. Morsink affirms that
the integral factor for the drafting of the Declaration was the Holo-
caust because “without the delegates’ shared moral revulsion against
that event the Declaration would never have been written.”1 In sup-
port, he refers to the statement in the Declaration’s Preamble, which
states that the “disregard and contempt for human rights [has] re-
sulted in barbarous acts which have outraged the conscience of man-
kind,” and affirms that this shared outrage explains why the Decla-
ration has found such widespread support.2
The drafting of the Declaration lasted almost three years and oc-
cupied various commissions, sub-commissions, committees, and
permanent organs of the UN.3 With the participation of dozens of
country delegations holding UN membership, participants enter-
tained discussions about all aspects related to the dignity of the hu-
man being and his fundamental rights, while always keeping in mind
the tragic events of the Second World War. In his meticulously de-
tailed report, Morsink states that the drafters were aware of how far
the nazification of the German legal system had developed and they
felt that only a clear statement of the separate issues involved could
set the record straight.4 This meant putting on paper all of the legal
1
JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:
ORIGINS, DRAFTING & INTENT 14 (1999).
2
Id. at 90-91
3
In May 1946, the eight-member Nuclear Committee held eighteen meet-
ings. On its proposition, an eighteen-member Commission was created, which
held eighty-one meetings over two years and three sessions. Simultaneously, an
eight-member Drafting Committee held forty-four meetings over two sessions.
Then, from September 21 to December 8, 1948, the Third Committee on Social,
Humanitarian, and Cultural Affairs held another 150 meetings. Finally, on De-
cember 10, 1948, the Third General Assembly adopted the Declaration. Id. at 28.
4
See id.
rights that, by the middle of the twentieth century, had become part
of the jurisprudential system of all civilized nations.
And yet, nothing resulted from the Declaration regarding the
protection of people of the world against genocide or systematic
atrocities, as no clear authority was given to the UN or any group of
member states to interfere in order to save populations under bar-
baric persecution. All of the UN resolutions, starting with the Dec-
laration, followed by the two basic Covenants, and continuing with
the various Conventions approved during the following decades,
concentrated on statements of principles, legal concepts, or general
rules aimed to protect individual persons; however, they are silent
with regard to saving collectivities doomed by the powers of evil.
The only exception is the Genocide Convention, which prescribes
protection of human groups through prevention and punishment.
Notwithstanding, the failure of this fundamental convention is its
concentration on punishment, leaving the prevention aspect unde-
fined and inoperative, rendering it, essentially, ineffective.
Two aspects should be taken into consideration. First, even after
Hitler’s racial theories and murderous plans became known, the na-
tions that had inscribed in their constitutions and other fundamental
documents most of the principles that would later be included in the
Declaration, failed to respond. These nations, including the United
States, United Kingdom, Canada, and many others, sat idle while
the Nazis persecuted and murdered millions. Second, while the Dec-
laration was being drafted, its principles and rules were discussed
and voted on by some of the most important members of the UN.
These participants involved in the preparation of the Declaration
were committing atrocities of their own upon innocent victims. For
example, Britain sent Jewish war survivors trying to reach Palestine
back to Europe and its camps or interned them in Cyprus.5 In addi-
tion, British troops massacred twenty-four unarmed villagers during
the Malayan emergency in Batang Kali.6 With regard to its colonies,
5
See Postwar Refugee Crisis and the Establishment of the State of Israel,
U.S. HOLOCAUST MEM’L MUSEUM: HOLOCAUST ENCYCLOPEDIA (Jan. 29, 2016),
https://www.ushmm.org/wlc/en/article.php?ModuleId=10005459.
6
See Christopher Hale, Batang Kali: Britain’s My Lai?, HISTORY TODAY
(July 2012), http://www.historytoday.com/christopher-hale/batang-kali-brit-
ain%E2%80%99s-my-lai.
Belgium engaged in some rather cruel policies in Congo7 and France

in some atrocious measures in North Africa.8 Furthermore, Russia’s
murderous treatment of dissenters9 and the United States’ severe
discrimination of African Americans10 also ran afoul of many hu-
man rights principles. Irrespective, the delegates of these countries
were among the most vocal in the meetings that took place on the
drafting and planning of the Declaration.
Morsink, based on the official registries of the Human Rights
Commission’s work on the Declaration, explains how the various
articles of the Declaration were drafted in response to Hitler’s racist
theories and how the delegates that worked on the Declaration
stressed this purpose.11 However, there is no article in the Declara-
tion addressing anti-Semitism, the incitement of hate towards other
people, or principles in favor of tolerance and respect for other reli-
gions and races (only guarantee of freedom of religion as a right of
each individual).
In addition, everything in the Declaration is set in the singular;
nothing is in the collective. I am not suggesting that a collective ap-
proach would have necessarily avoided subsequent genocides and
atrocities. However, at the very least, it would have been a more
exact repudiation of the Nazi’s bestiality and made an eventual con-
tribution to the Genocide Convention, as far as prevention is con-
cerned.
Simple questions arise: Does the Declaration carry more author-
ity or more enforceability than the legal system of each country, as
far as the behavior of their people and the policies of their govern-
ments in the internal matters of that nation? Did the civilized nations
respect the principles of their legal systems beyond their own terri-
tories, such as in their respective colonies? If not, would the Decla-
ration have a stronger effect than the principles enshrined in their
7
See generally ADAM HOCHSCHILD, KING LEOPOLD’S GHOST: A STORY OF
GREED, TERROR, AND HEROISM IN COLONIAL AFRICA (Sep. 3, 1999).
8
See Julia Clancy Smith, Imperialism in North Africa, THE CENTER FOR
HISTORY AND NEW MEDIA AT GEORGE MASON UNIVERSITY (June 2006),
http://chnm.gmu.edu/wwh/modules/lesson9/lesson9.php?s=0.
9
See David Satter, Soviet Dissent and the Cold War, HOOVER DIGEST (Apr.
30, 2003), http://www.hoover.org/research/soviet-dissent-and-cold-war.
10
See generally JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA’S CIVIL
RIGHTS YEARS, 1954-1965S 18-87 (1987).
11
See MORSINK, supra note 1, at 40.
own constitutional systems? Perhaps the “internationalization of hu-

man rights” was the hope of the drafters, which would have a
stronger effect than any domestic human rights rule. If so, this is no
more than mere wishful thinking. On the other hand, for the nations
that had not inscribed these principles in their legal system, would
the Declaration have any effect over them?
From the discussions surrounding the drafting of the articles and
which took place in the various organs of the UN, it is evident that
the Declaration is a direct consequence of the Fuhrer’s nazification
of Germany’s legal system.12 The various articles were created to
counter the actions and rules espoused by the Nazis. Rarely did a
rule of one of the state members, constitutional or otherwise, serve
as a model. Instead, the model was always to contradict or oppose
Hitler and his Nazi regime.
Article 8 guarantees a remedy “for acts in violating the funda-
mental rights,”13 which was referred to in various meetings as being
incompatible with national rules and was a direct response to what
occurred in Hitlerite Germany.14Article 9 provides that “[n]o one
shall be subjected to arbitrary arrest, detention or exile”15 as a result
of “the readiness of the [Nazi] courts to bow to the wishes of their
political masters . . . .”16 Article 10 requires that “[e]veryone is en-
titled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obliga-
tions and of any criminal charge against him.”17 This was drafted
precisely to counteract the lack of independence of Nazi courts.18
Article 11 forbids punishment based on retroactivity of the law19 be-
cause Nazis constantly violated this principle.20
12
See id. at 43.
13
Universal Declaration of Human Rights, G.A. Res. 217(III) A, U.N. Doc.
A/RES/217(III), at art. 8 (Dec. 10, 1948).
14
MORSINK, supra note 1, at 48-49.
15
G.A. Res. 217, supra note 13, at art. 9.
16
MORSINK, supra note 1, at 49 (citation omitted).
17
18
MORSINK, supra note 1, at 50.
19
20
MORSINK, supra note 1, at 53-54.
Thus, Hitler and his Nazi regime were the guidelines of the draft-
ing and redrafting of the Universal Declaration. The outrage result-
ing from the barbarity of the war was the drafters’ main motivation
for proclaiming the Declaration.21
In reality, the connection between the Declaration and Hitler is
very weak because, where the Declaration proclaims that “[a]ll hu-
man beings are born free and equal in dignity and rights,”22 Hitler’s
campaign was based on the extravagant contention that Jews, Rom-
anis, and other cultural groups were sub-humans. As such, what
would a future Hitler declare? What about a Muslim who considers
Jews to be pigs, according to his holy sources? Because the Decla-
ration does not define who a human being is, it does not preclude
the return to the Nazi absurdities or affect the radical Muslim views.
Articles 13 and 14 guarantee “the freedom of movement and res-
idence,”23 “the right to leave any country,”24 and the right to asy-
lum.25 Morsink says that the adoption of the rights contained in these
articles can also be traced directly to the experience of the Second
World War.26 He continues, “For many Jews, gypsies, and others
hunted down by the Nazis, to be able to leave Germany and be
granted asylum elsewhere was a matter of life or death and therefore
a question of their human rights.”27
However, if we go back to the historical development of the Nazi
regime and of World War II, we will verify that the denial of asylum
for the Jews and persecution by the Nazis was due to the policies of
the United States, Canada, and other countries in the Americas, as
well as the fact that Great Britain practically closed the doors of Pal-
estine to the Jews. Thus, the need to establish an international right
to asylum has much less connection to Nazi Germany than to the
cruel policy of the so-called “Allies.”
The first meeting of the Commission on Human Rights of the
Economic and Social Council was held on Monday, April 29, 1946.
Henri Laugier, Assistant Secretary General of the UN, said,
21
Id. at 329.
22
23
Id. at art.13, par. 1.
24
Id. at art.13, par. 2.
25
Id. at art.14.
26
27
Id. at 329.
You will have to look for a basis for a fundamental

declaration on human rights, acceptable to all the
United Nations, the acceptance of which will become
the essential condition of the admission in the inter-
national community. You will have before you the
difficult but essential problem to define the violation
of human rights within a nation, which would consti-
tute a menace to the security and peace of the world
and the existence of which is sufficient to put in
movement the mechanism of the United Nations for
the maintenance of peace and security. You will have
to suggest the establishment of machinery of obser-
vation[,] which will find and denounce the violations
of the rights of man all over the world. Let us re-
member that if this machinery had existed a few
years ago, if it had been powerful and if the universal
support of public opinion had given it authority, in-
ternational action would have been mobilized imme-
diately against the first authors and supporters of fas-
cism and nazism. The human community would have
been able to stop those who started the war at the mo-
ment when they were still weak and the world catas-
trophe would have been avoided.28
This subsequently mobilized immediate action in order to stop
the warmongers and avoid human catastrophe. The various drafts
that were composed in the different stages of the preparatory work
never got near the point of formulating a structure that would ob-
serve, find, and denounce violations of human rights.29 With the
exception of a reference in the Preamble of the final text to “peace
28
U.N. SCOR, Comm. on Human Rights, 1st Sess., 7th mtg. at 2-3, U.N.
Doc. E/HR/6 (Apr. 29, 1946); MORSINK, supra note 1, at 14.
29
MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 271 (2001) (the “Humphrey
Draft”); id. at 275 (the “Cassin Draft”); id. at 281 (the June 1947 Human Rights
Commission Draft); id. at 289 (the Geneva Draft); id. at 294 (the Lake Success
Draft); id. at 300 (the Third Committee Draft); and id. at 310 (the Universal Dec-
laration of Human Rights).
in the world” and “development of friendly relations between na-

tions,” nothing in the actual text of the Declaration relates in any
way to “peace and security” as proposed by Laugier.
The cause and effect relationship connecting the atrocities com-
mitted during the Second World War and the Declaration became
clear again during the final UN General Assembly debate in Decem-
ber 1948.30 Charles Malik, the representative from Lebanon, said,
“[T]he document was inspired by opposition to the barbarous doc-
trines of Nazism and fascism.”31 Similarly, Lakshimi Menon, the
delegate from India, said, “the Declaration was born from the need
to reaffirm those rights after their violation during the war.”32 Bogil
Begtrup, from Denmark, stated, “the drafters wanted to avoid the
horrors of a new war.”33 Jorge Carrera Andrade, the representative
from Ecuador, also said, “From the ruins of destruction wrought by
the Second World War . . . man had once again fanned the immortal
flame of civilization, freedom and law.”34 Count Henri Carton, the
Belgian delegate declared, “the essential merit of the Declaration
was to emphasize the high dignity of the human person after the
outrages to which men and women had been exposed during the re-
cent war.”35 René Cassin, from France, concluded, “[T]he last war
had taken on the character of a crusade for human rights and the
Declaration was the most vigorous and the most urgently needed of
humanity’s protest against oppression.”36 Geoffrey Wilson, the
United Kingdom delegate, spoke of the historical situation in which
the Committee met.37 It was one where Germany and other enemy
countries during the war had completely ignored what human rights
and freedoms mankind had regarded as fundamental. The Commit-
tee met as a first step toward providing the maximum possible safe-
30
31
Id.
32
Id.
33
Id.
34
Id.
35
Id. at 37.
36
Id.
37
Id.
guard against that sort of thing in the future. After quoting these pro-
nunciations, Morsink concluded that “the Universal Declaration was
adopted to avoid another Holocaust or similar abomination.”38
Article 30 rules that “nothing in this Declaration may be inter-
preted as implying for any State, group or person any right to engage
in any activity or to perform any act aimed at the destruction of any
of the rights and freedoms set forth herein.”39 Various delegates ar-
gued forcefully for the inclusion of this article in order to check and
prevent the growth of nascent Nazi, fascist, or other totalitarian ide-
ologies.40 It was understood that Article 30 provided “the indispen-
sable elements of defense against the possible rebirth of Nazism or
fascism,” as argued by the Lebanese, French, and Russian dele-
gates.41 This is illusory because if the Declaration does not create an
instrument to avoid or remedy the infringement of any of the rights
enumerated in its text, how does Article 30 provide a guarantee
against the growth of a totalitarian ideology and consequential re-
gime?
When a delegate in the Third Committee observed that the prin-
ciples of liberty, equality, and fraternity set in the Declaration were
well known and did not need to be stated again,
Cassin quickly responded that the argument “was in-
valid in light of recent events. Within the preceding
years,” he said, “millions of men had lost their lives,
precisely because those principles had been ruth-
lessly flouted.” He thought it “was essential that the
U.N. should again proclaim to mankind those princi-
ples which had come so close to extinction and
should refute the abominable doctrine of fascism.”42
The belief in the power of a mere proclamation was indeed the
tonic of the assembled delegates.
The extent to which the Declaration has been interpreted to be
related to the aftermath of Nazi Germany’s atrocities has reached a
38
Id.
39
40
41
Id.
42
Id. at 39.
point where we read, with reference to Articles 3,43 4,44 and 5,45 that
these rules “are not simply Enlightenment reflexes, but profound re-
actions to what went on in the concentration camps.”46 These rights
had been established by the western world in different occasions and
in different ways far before Hitler’s perversities; it is not implausible
to connect them with the events of the war that had just ended at that
time.
Another such grandiloquent, but equally equivocal, statement is
that the nazification of the German legal system taught the drafters
that the strongest protection against systematic human rights viola-
tions is the kind of legal system Articles 6 through 12 prescribe.47
These are the articles that deal with the guarantees of legal protec-
tion inclusive in courts of law. The German Constitution carried all
these guarantees and yet the German leadership, followed by the
majority of its people, and mainly by the legal community, accepted
the total corruption of its juridical system and the systematic viola-
tion of all human rights.
In a more realistic analysis, a cool look at the document leads to
the consideration that
So far as the Great Powers of the day were con-
cerned, the main purpose of the United Nations was
to establish and maintain collective security in the
years after the war. The human rights project was pe-
ripheral, launched as a concession to small countries
and in response to the demands of numerous reli-
gious and humanitarian associations that the Allies
live up to their war rhetoric by providing assurances
that the community of nations would never again
countenance such massive violations of human dig-
nity. Britain, China, France, the United States, and
43
G.A. Res. 217, supra note 13, at art. 3 (“Everyone has the right to life,
liberty and security of person”).
44
Id. at art. 4 (“No one shall be held in slavery or servitude; slavery and the
slave trade shall be prohibited in all their forms.”).
45
Id. at art. 5 (“No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.”).
46
Id. at 331.
47
Id. at 43.
the Soviet Union did not expect these assurances to

interfere with their national sovereignty.48
History has proven that the Great Powers were right in their
skepticism and that the idealists never got what they looked forward
to.
The scholarly community generally accepted the connection be-
tween the Declaration and Nazism. The analysis of various authors
demonstrates the generalization of the theory:
1) “The cruelties and oppression of the Nazi regime
in Europe brought the conviction both during and af-
ter the Second World War that the international
recognition and protection of human rights for peo-
ple throughout the world is essential to the mainte-
nance of international peace and order.”49
2) “[T]he Second World War and the suffering in-
flicted under the Nazi regime gave new impetus to
those demanding international recognition and en-
forcement of fundamental human rights and free-
dom.”50
3) “[W]hat ultimately tipped the scale in favor of hu-
man rights after the Second World War was the ‘un-
imagined destruction of human life in the genocide
of the Holocaust’s Final Solution that exceeded all
previously known bounds.’”51
4) “The horrors of the Holocaust formed the back-
ground against which human rights norms and a host
48
GLENDON, supra note 29, at xv-xvi.
49
Shigeru Oda, The Individual in International Law, in MANUAL OF PUBLIC
INTERNATIONAL LAW 469, 497 (Max Sørenson ed., 1968).
50
ROBERT MACLEAN, PUBLIC INTERNATIONAL LAW 192 (2000).
51
G. Daniel Cohen, The Holocaust and the “Human Rights Revolution”: A
Reassessment, in THE HUMAN RIGHTS REVOLUTION: AN INTERNATIONAL
HISTORY 53, 54 (Akira Iriye et al. eds., 2012) (citing PAUL GORDON LAUREN, THE
EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN 291 (1998)).
of other UN conventions initially established their le-

gitimacy.”52
5) “[T]he horror of the Holocaust would shape new
international humanitarian law for decades to
come.”53
And yet, it is important to emphasize, there is not one line in the
whole Declaration which guarantees that in the future, a persecuted
person, racial tribe, or religious or ethnic group will be protected by
the United Nations.
The Preamble of the United Nations’ Charter states,
To save succeeding generations from the scourge of
war, which twice in our lifetime has brought untold
sorrow to mankind, and to reaffirm faith in funda-
mental human rights, in the dignity and worth of the
human person, in the equal rights of men and women
and of nations large and small . . . .54
The first sentence is generic, referring to war in the traditional
sense. It embraces humanity as a whole, and does not provide spe-
cific protection for minorities. The second sentence is directed to the
individual and nations in very generic and abstract terms.55
In the Sub-Commission on the Prevention of Discrimination and
the Protection of Minorities, the Russian delegate Alexander
Borisov proposed that Article 7, which deals with discrimination,
52
Id. at 55 (citing Daniel Levy & Natan Sznaider, The Institutionalization of
Cosmopolitan Morality: The Holocaust and Human Rights, 15 J. HUM. RTS. 143,
149 (2004)).
53
Id. at 55 (citing MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS:
FROM ANCIENT TIMES TO THE GLOBALIZATION ERA 241 (2004)).
54
U.N. Charter pmbl.
55
There was a proposal for an article on minorities but in a different sense: it
was meant to give “people belonging to well-defined linguistic, ethnic, or reli-
gious minority groups the right to establish their own educational, cultural, and
religious institutions and to use their own language in the courts.” GLENDON, su-
pra note 29, at 119. The proposal originated from multicultural nations. Id. at 119-
20. However, the United States and France opposed it strongly, because it went
against the American culture of “melting pot” and the French assimilationist ap-
proach to diversity. Id. at 120.
should have an added paragraph stating that any advocacy of na-

tional, racial and religious hostility, national exclusiveness, or ha-
tred and contempt, as well as any action establishing a privilege or
discrimination based on the distinction of race, nationality, or reli-
gion, constitutes a crime and shall be punishable under the law of
the state.56
In the same line, another Russian delegate, Alexandre Bo-
gomolov, added,
The affirmation of equality of individuals before the
law should be accompanied by the establishment of
equal human rights in political, social, cultural, and
economic life. In terms of practical reality, this meant
that one could not allow advocacy of hatred or racial,
national or religious contempt . . . .Without such a
prohibition, any Declaration would be useless. It
could not be said that to forbid the advocacy of ra-
cial, national or religious hatred constituted a viola-
tion of the freedom of the press or of free speech. Be-
tween Hitlerian racial propaganda and any other
propaganda designed to stir up racial, national or re-
ligious hatred and incitement to war, there was but a
short step. Freedom of the press and free speech
could not serve as a pretext for propagating views[,]
which poisoned public opinion. Propaganda in favor
of racial or national exclusiveness or superiority
merely served as an ideological mask for imperialist
aggression. That was how German imperialists had
attempted to justify by racial considerations their
plan for destruction and pillage in Europe and Asia.57
The Russian delegate was condemning what has become known
as “hate speech.”
In addition, the Russian delegation insisted that the proposal was
to test whether the UN was to be effective in its protection of minor-
ities. On a later occasion, Alexei Pavlov, another Soviet delegate,
56
57
Id.
brought up his colleagues’ proposition again. At the end, the

Borisov/Bogomolov/Pavlov proposal was turned down.58
After many discussions in the innumerous bodies of the Com-
mission and in the other organs of the UN until the Declaration
reached final approval by the General Assembly, Article 7 finally
states, “[a]ll are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this Dec-
laration and against any incitement to such discrimination.”59
Morsink distinguishes the Russian proposal from the final redac-
tion by “one crucial difference”: the Russian version proposed the
“outright prohibition of advocacy or incitement to hostility, hatred
and contempt,” while the final text only guarantees protection
against incitement.60 This is a display of prohibition versus protec-
tion.
Actually, there is a much wider distinction between the two for-
mulations, which differ in two very important respects: 1) the Rus-
sian proposal was directed at minorities, as a collective group of hu-
man beings, whereas the final text of the Declaration merely protects
individuals, as it starts with “all,” meaning everyone; and 2) The
Russian proposal characterized the violation of its precept as a
crime, to be punished by the law of the state, whereas no such pro-
vision is found in the final text of the Declaration.
With all due remembrance and respect to the millions of victims
of the cruel and criminal Russian regime of the time, it must be rec-
ognized that its delegation at the Human Rights Commission sug-
gested a more historically, politically, and legally adequate proposi-
tion than the formula that was finally approved.
This is an accurate, but disappointing, description of the results
reached by the highly praised “internationalization of human
rights,” which is devoid of any real meaning. Because the Declara-
tion did not confront the great catastrophe that occurred during
World War II, it added nothing to what the constitutional democra-
cies already guaranteed, and it did not influence the states that do
not respect human rights in their internal legislations.
58
Id. at 71.
59
60
Regarding the Declaration’s Preamble, I have two remarks.

First, the “barbarous acts, which outraged the conscience of man-
kind”61 did not stem from a disregard for human rights. The un-
speakable atrocities committed by the Nazis go well beyond the sim-
ple disregard of human rights. A state can disregard human rights
and not commit genocide. There is no relationship or connection be-
tween the barbarity of the Second World War and the Declaration.
Second, “freedom of speech and belief and freedom from fear and
want”62 are great ideals for which men and governments have to en-
deavor all possible efforts. However, these ideals do not constitute
“the highest aspiration of the common people.”63 The first, highest,
strongest, all-encompassing, everlasting aspiration of the “common
people” as well as the not so “common people” is the right to life,
provided for in Article 3 of the Declaration. The right to life was so
wildly disrespected in both World Wars, yet found no reference in
the Preamble, which sets the fundamental philosophical, historical,
social, political, and, in certain sense, the legal desiderata of the Dec-
laration.64
The concept of human rights originated in the first chapter of the
Bible, Genesis, and is an old conquest of civilization, as expressed
in philosophy, theology, and religious and political literature. As it
turns out from the work of the Commission that drafted the Decla-
ration, and the subsequent literature, Hitler was the indirect cause of
human rights instruments—specifically, the Declaration. This
61
Id.
62
Id.
63
Id.
64
The “Lake Success Draft” went even further stating, “Whereas disregard
and contempt for human rights resulted, before and during the Second World War,
in barbarous acts which outraged the conscience of mankind and made it apparent
that the fundamental freedoms were one of the supreme issues of the con-
flict . . . .” GLENDON, supra note 29, at 294. There is a long way between not re-
specting the fundamental freedoms and organizing the methodical, scientific, atro-
cious murder of an entire people or race or religion—any human group—dis-
persed all over a continent. The same critique applies to the “Cassin Draft,” which
stated in its Preamble, “Ignorance and contempt of human rights have been among
the principal causes of the sufferings of humanity and particularly of the massa-
cres which have polluted the earth in two world wars . . . .” There is no corre-
spondence between disrespect of human rights and organized, systematic massa-
cres; the former does not necessarily lead to the latter. See also G.A. Res. 217,
supra note 13, at pmbl.
amounts to a horrific view of history, as well as a preposterous his-

torical and legal analysis of recent facts.
An important consideration regarding the drafters of the Decla-
ration is that the nation states had no moral authority to respond to
Nazism, as they represented countries that could have, but did not,
avoid the Holocaust or at least save a considerable part of the vic-
tims. Actually, Hitler could not have materialized his perversion
against the Jews were it not for the policy of the United States, fol-
lowed by the allied states, of refusing entrance to the Jews when they
were still able to escape from Europe. This was a policy that gave
Hitler the green light to proceed with his barbarous objective, which
he materialized against the majority of the Jews living in Europe.
Regarding the objectives of the Declaration, its Preamble pro-
claims that the “recognition of the inherent dignity and the equal and
inalienable rights of all members of the human family is the founda-
tion of freedom, justice and peace in the world . . . .”65 “Freedom”
and “justice” are human rights as well. It would have been more
precise to enumerate these two principles together with dignity and
equality and not classify them as supportive elements of the others.
It is not easy to understand the relation of individual human rights
with “peace in the world,” or as the Preamble further adds, the es-
sentiality of “promoting the development of friendly relations be-
tween nations.”66
At the ceremony of concession of the Nobel Peace Prize to René
Cassin, the Chairman of the Nobel Prize Committee, who had been
Norway’s representative to the UN from 1946 to 1965, stated, “To-
day, where there is no respect for human rights and freedom, there
is no peace either.”67
What is the real connection between individual human rights and
peace in the world? Where is the evidence that governments that
65
Id.
66
CHARLES R. BEITZ, THE IDEA OF HUMANS RIGHTS 19 (2009) (“there are
two distinguishable themes in the characterization given in the preamble of the
declaration’s justifying aims: that international recognition of human rights is nec-
essary to protect the equal dignity of all persons and that respect for human rights
is a condition of friendly relations among states”).
67
Aase Lionaes, Chairman, Nobel Committee, Award Ceremony Speech at
the Nobel Peace Prize Award (Dec. 10 1968), available at http://www.no-
belprize.org/nobel_prizes/peace/laureates/1968/press.html.
abuse their people’s human rights necessarily pose a greater threat

to international peace? During the twentieth century, various South-
ern and Central American countries went through various periods of
dictatorial regimes, which restricted the rights of their citizens and
violated fundamental human rights. These countries did not repre-
sent a threat to peace in the world. The same goes for Portugal dur-
ing the long regime of President António de Oliveira Salazar in the
1940s and 50s. Did Francisco Franco’s Spain threaten peace beyond
its borders, even in the years of the civil war that was waged there
in the 1930s?
Iraq, Cuba, and Vietnam are often referred to as examples of hu-
man rights violating states that are likely to go to war. This does not
prove anything, as there are dozens of states that do not respect hu-
man rights and never go to war. On the other hand, human rights
observant states sometimes go to war, but never against another sim-
ilarly observant state. Indeed, interventions that discuss the reestab-
lishment of human rights have often times lead to war.
Without doubting the sincerity of the drafters of the Declaration,
the analysis of the horrors of the Second World War and the subse-
quent occurrence of continuous world shaking tragedies demon-
strates that the document does not connect with its declared causes
and does not achieve its purposes. From that moment in 1948 starts
a long history of self-delusions, fantasies, and lies, which eventually
developed into a long chain of hypocritical situations, transforming
the so-called campaign for international human rights into a theater
of the absurd, led by the different organs of the UN through mani-
festations and grandiose events organized by the world entity. At the
same time, tragedies of colossal proportions are going on, bringing
about discrimination, persecution, human trafficking, torture, and,
above all, genocides of all kinds and sizes.
The drafting of the Declaration lasted nearly three years, went
through seven drafting stages, occupied hundreds of meetings, re-
ceived hundreds of amendments, and more than a thousand votes in
discussions about all kinds of matters, but nothing appears in its text
regarding how to secure people of the world against genocide, sys-
tematic atrocities, or the empowerment of the UN or any group of
member states to interfere immediately in order to save populations
being persecuted and murdered.
The two basic Covenants, the International Covenant on Civil

and Political Rights and the International Covenant on Economic,
Social and Cultural Rights, followed by the numerous Conventions
and the hundreds of resolutions of the UN approved during the fol-
lowing decades concentrated on statements of principles, legal con-
cepts, general rules, multiple obligations, but nothing about saving
the doomed by the powers of evil.68
II. CHARACTERIZATION OF THE UNIVERSAL DECLARATION

“No talk about natural law has saved the Jews from
Hitler”69
With this statement, Josef L. Kunz expressed his disagreement
with the philosophical school that ties human rights to natural rights
and contradicts his theory that human rights can only be achieved
through positivism, by express legal rules. He goes against the belief
that “human rights stand and fall with the recognition of natural
law.”70 Kunz proceeds to say “that they, exactly to the contrary,
stand and fall with positive law guaranteeing them and giving an
68
MORSINK, supra note 1, at 20 (“[T]oday there are around two hundred as-
sorted declarations, conventions, protocols, treaties, charters, and agreements, all
dealing with the realization of human rights in the world. Of these postwar instru-
ments, no fewer than sixty-five mention in their prefaces or preambles the Uni-
versal Declaration of Human Rights as a source of authority and inspiration.”);
see also ERIC A. POSNER, THE TWILIGHT OF HUMAN RIGHTS LAW 92 (2014) (more
than 300 human rights are guaranteed in the major international human rights
treaties).
69
Josef L. Kunz, The United Nations Declaration of Human Rights, 43 AM.
J. INT’L. L. 316, 319 (1949).
70
Id. (internal citations omitted); see also HENRY J. STEINER & PHILIP
ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS
127 (2d ed. 2008) (citing Louis Henkin, International Law: Politics, Values and
Functions, 216 COLLECTED COURSES HAGUE ACAD. INT’L L. 208, 209 (1989)
(“Both international law and domestic legal norms in the Christian world had
roots in an accepted morality and in natural law, and had common intellectual
progenitors (including Grotius, Locke, Vattel).”)); POSNER, supra note 68, at 11-
12 (referring to the U.S. Declaration of Independence and the French Declaration
of the Rights of Man as two major political documents that embodied the view
that people could overthrow their government if it violated their rights, which used
the term “natural rights” rather than “human rights” but “meant the same thing.”).
effective remedy against their violation in independent and impartial

courts.”
Almost seven decades after the approval of the Declaration, we
now know that even if we were to attribute a legal, positivistic char-
acter above natural law to the Declaration, it still would have failed
to help the millions of victims to human rights violations. The vic-
tims include those who were tortured and murdered by the innumer-
able dictators that converted the second half of the twentieth century
into one long succession of rivers of blood, the millions of women
and children that have been, and continue to be, sold into slavery
and sex, the millions of women cruelly discriminated in Muslim
countries, or the hundreds of thousands of Christians discriminated
and persecuted in those countries.
In a judgment by the Civil Tribunal of Brussels, the Declaration
was characterized for what it really is—a mere declaration, without
force of law.
The Court said,
[T]he Universal Declaration does not have the force
of law. Its sole aim is to express the common ideal to
be attained by all peoples and all nations, in order
that by instruction and education respect for these
rights and freedoms may be developed and that
measures may be taken progressively to ensure that
they are recognized and universally and effectively
applied in the future.71
The opinion that the Declaration is not a legal instrument has
been expressed by various authorities,72 including Supreme Court
71
M. v. United Nations & Belgium, 45 I.L.R. 446 (Civ. Trib. of Brussels
1966), in INTERNATIONAL LAW THROUGH THE CASES 156, 157 (L.C. Green, 4th
ed. 1978).
72
A far cry from the proclaimed original intentions of the Commission of
Human Rights when it began to draft the Declaration as a result of the atrocities
of WWII and creating a document that would not allow history to repeat the hu-
man suffering caused by the Nazi regime. See IAN BROWNLIE, PRINCIPLES OF
PUBLIC INTERNATIONAL LAW 570 (4th ed. 1990) (“The Declaration is not a legal
instrument, and some of its provisions, for example the reference to a right of
asylum, could hardly be said to represent legal rules. On the other hand, some of
its provisions either constitute general principles of law or represent elementary
Justice and United States Ambassador to the United Nations, Arthur

J. Goldberg.
[The Universal Declaration] has received universal
recognition, but it remains just that, a declaration. In
these two words thus are reflected both the hope and
the tragedy of human rights in our day. We agree all
too often on principles, but practice and enforcement
have not kept pace with pronouncements.73
The authors of the Declaration recognized that acceptance of a
legally-binding treaty would prove very difficult to obtain, but that
it would be relatively easy to reach agreement on the text of a hor-
tatory declaration. Therefore, the UN Commission on Human Rights
decided to work on a declaration and prepare one or more draft trea-
ties thereafter. This resulted in the passage of the Declaration in
1948 and, many years later, the Covenants on Civil and Political
Rights and on Economic, Social, and Cultural Rights, which entered
into force in 1976.74
The Declaration was seen as having only moral force, binding
only in the sphere of conscience. As such, every state is entitled to
interpret its provisions in its own light as to the ethical rights and
wrongs of any given situation.75
As a tendency developed to upgrade the meaning and the value
of the Declaration, international scholars, though warning about the
need to exercise restraint in describing it as a legally binding instru-
ment, tried somehow to upgrade its value.76 Actually, denial of its
considerations of humanity.”); Cf. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, at

22 (Apr. 9).
73
History has proven the Ambassador correct. ARTHUR J. GOLDBERG, Our
Concerns for Human Rights, 32 Congress Bi-Weekly, Nov. 15, 1965, at 9 (Nov.
15, 1965); but see BURNS H. WESTON ET AL., INTERNATIONAL LAW AND WORLD
ORDER 629 (1990) (considering Ambassador Goldberg’s dictum as “somewhat
exaggerated”).
74
The Covenants hardly improved over the weakness of the Declaration.
THOMAS BUERGENTHAL ET AL., INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL
47 (4th ed. 2009).
75
H. Lauterpacht, The Universal Declaration of Human Rights, 25 BRIT.
Y.B. INT’L L. 354, 370 (1948).
76
L. OPPENHEIM, INTERNATIONAL LAW 1002-04 (Robert Jennings & Arthur
Watts eds., 9th ed. 1992) (“The Declaration has been of considerable value as
legal character appeared at the very moment of its approval by the

General Assembly on December 10, 1948 when the delegate to the
United States, Eleanor Roosevelt, said, “It is not a treaty; it is not an
international agreement. It is not and does not purport to be a state-
ment of law or of legal obligation.”77 On another occasion, at a meet-
supplying a standard of action and of moral obligation. It has been frequently re-
ferred to in official drafts and pronouncements, in national constitutions and leg-
islation, and occasionally—with differing results—in judicial decisions. These
consequences of the Declaration may be of significance so long as restraint is
exercised in describing it as legally binding instrument. However, in the years
since its adoption, the widespread acceptance of the authority of the Declaration
has led some to the opinion that while the Declaration as an instrument is not a
treaty, its provisions may have come to be the embodiment of new rules of cus-
tomary international law in the matter.”).
77
Eleanor Roosevelt, Chair, Drafting Committee of the Universal Declara-
tion of Human Rights, Statement to the United Nations’ General Assembly on the
Universal Declaration of Human Rights (Dec. 9, 1948), available at
https://www.gwu.edu/~erpapers/documents/displaydoc.cfm?_t=speeches&_do-
cid=spc057137 (“In giving our approval to the declaration today, it is of primary
importance that we keep clearly in mind the basic character of the document. It is
not a treaty; it is not an international agreement. It is not and does not purport to
be a statement of law or of legal obligation. It is a declaration of basic principles
of human rights and freedoms, to be stamped with the approval of the General
Assembly by formal vote of its members, and to serve as common standard of
achievement for all peoples of all nations.”); Lauterpacht, supra note 75, at 358;
U.N. SCOR, Comm. on Human Rights, 3d Sess., 48th mtg. at 5-6, U.N. Doc.
E/CN.4/SR.48 (June 4, 1948) (“The Declaration should not be in any sense a leg-
islative document. The General Assembly was not a legislative body . . . .Further,
it was clear that the Declaration, as envisaged, did not create legal remedies or
procedures to ensure respect for the rights and freedoms it proposed to the world;
that ideal would have to be achieved by further steps taken in accordance with
international and domestic law. The Declaration would have moral, not manda-
tory, force.”); Joseph M. Sweeney et al., Cases and Materials on the International
Legal System 630 (1988) (citing J.P. Humphrey, The UN Charter and the Univer-
sal Declaration of Human Rights, in The International Protection of Human
Rights 39, 51 (Evan Luard ed., 1967) (“Even more remarkable than the perfor-
mance of the United Nations in adopting the Declaration has been its impact and
the role which it almost immediately began to play both within and outside the
United Nations—an impact and a role which probably exceed the most sanguine
hopes of its authors. No other act of the United Nations has had anything like the
same impact on the thinking of our time, the best aspirations of which it incorpo-
rates and proclaims. It may well be that it will live in history chiefly as statement
ing of the Third Committee that preceded the UN’s General Assem-
bly vote to approve the Declaration, Mrs. Roosevelt made an enthu-
siastic statement about the document, in which she said,
This Declaration may well become the international
Magna Carta of all men everywhere. We hope its
proclamation by the General Assembly will be an
event comparable to the proclamation of the Decla-
ration of the Rights of Man by the French people in
1789, the adoption of the Bill of Rights by the people
of the United States, and the adoption of comparable
declarations at different times in other countries.78
These two representations by Mrs. Roosevelt do not necessarily
conflict. In 1948, still under the impact of the catastrophic conse-
quences of the war, there was a deep urge to create conditions for a
better world. At the same time, there was a careful approach to re-
spect the sovereignty of state members of the UN and not interfere
with their basic legal principles. On the one hand, there was wishful
thinking that the Declaration could bring about a world of peace and
security, but on the other hand, it was realized that each state would
have to establish, through its constitution and legal system, the nec-
essary guarantees for reaching that goal. Mrs. Roosevelt addressed
each position in her quoted manifestations.
When the Declaration was approved, the President of the Gen-
eral Assembly made a statement that expressed both aspects. He said
the Declaration was simply a “declaration of rights that does not
abide by international convention for States being bound to carry
out and give effect to these rights, nor does it provide for enforce-
ment.”79 On the other hand, the President of the General Assembly
believed the Declaration to be
of great moral principles. As such its influence is deeper and more lasting than
any political document or legal instrument.”)).
78
Eleanor Roosevelt, Chair, Drafting Committee of the Universal Declara-
tion of Human Rights, Statement to the United Nations’ General Assembly on the
Universal Declaration of Human Rights (Dec. 9, 1948), available at
https://www.gwu.edu/~erpapers/documents/displaydoc.cfm?_t=speeches&_do-
cid=spc057137.
79
A step forward in a great evolutionary process. It [is]

the first occasion on which the organized community
of nations [has] made a declaration of human rights
and fundamental freedoms. [The Declaration is]
backed by the authority of the body of opinion of the
United Nations as a whole and millions of people,
men, women and children all over the world, [will]
turn to it for help, guidance and inspiration.80
The intellectual level of the Declaration was well defined, as is
made evident by the comments made at the time of its adoption. The
“Universal Declaration was written for ordinary men and women,
for people in all walks of life and in all the different cultures of the
world.”81 Mrs. Roosevelt was quite clear when she declared that the
Declaration was not intended for philosophers and jurists but rather
for the ordinary person.82
To some, the history of the Declaration’s title helps clarify the
real nature of the document. René Cassin proposed that the original
title, “International Declaration,” be changed to “Universal Decla-
ration.” He later wrote that ‘universal” meant that the Declaration
was morally binding on everyone, not only on the governments that
voted for its adoption, as it “was not an ‘international’ or ‘intergov-
ernmental’ document; it was addressed to all humanity and founded
on a unified conception of the human being.”83 At the same time,
this statement enhances the moral value of the document and recog-
nizes its non-legal nature.
The development of this approach strengthened the general ne-
gation of legal characteristics of human rights documents. Hersch
Lauterpacht made a realistic characterization of the Declaration. In
an extremely legal/logical argumentation, Lauterpacht showed that
80
U.N. GAOR, 3d Sess., 183d plen. mtg. at 166, U.N. Doc. A/PV.183 (Dec.
10, 1948); see also Lauterpacht, supra note 75, at 356 (“The practical unanimity
of the Members of the United Nations in stressing the importance of the Declara-
tion was accompanied by an equally general repudiation of the idea that the Dec-
laration imposed upon them a legal obligation to respect the human rights and
fundamental freedoms which it proclaimed.”).
81
82
U.N. SCOR, Comm. on Human Rights, 2d Sess., 41st mtg. at 9, U.N. Doc.
E/CN.4/SR.41 (Dec. 16, 1947); MORSINK, supra note 1, at 34.
83
GLENDON, supra note 29, at 161.
there is nothing in the document that limits the freedom of states and
that proclaiming the rights of an individual while scrupulously re-
fraining from laying down the duties of states constitutes a juridical
heresy.
[T]here are, in these matters, no rights of the individ-
ual unless as a counterpart and a product of the duties
of the state. There are no rights unless accompanied
by remedies. That correlation is not only an inescap-
able principle of juridical logic. Its absence connotes
a fundamental and decisive ethical flaw in the struc-
ture and conception of the Declaration.84
Despite all initiatives by states’ legislatures, resolutions by in-
ternational entities, and efforts by non-governmental organizations,
the reality remains as Lauterpacht diagnosed.
The development of the UN’s history has failed to show any in-
ternational moral opprobrium towards the states that do not abide by
the human rights principles, let alone any substantial legal conse-
quences to their constant violations of the principles set in the Dec-
laration and Covenants.
Pope John XIII, the great prince of the Catholic Church, the Pope
of peace, fraternity, and reconciliation, praised the Declaration as
“an act of the highest importance.”85 That could be so, provided it
developed into concrete legal measures and international action, an
aspect outside of the Church’s jurisdiction.
The international situation immediately after World War II, the
“iron curtain” formed by Soviet Russia around her satellites and the
consequent tension that it caused, brought about the gradual vanish-
ing of the wartime alliance. This made it difficult, if not impossible,
to create an enforceable charter of human rights, though it is doubt-
ful whether such ideal would have materialized under normal cir-
cumstances.
84
LAUTERPACHT, supra note 75, at 373; see also International Covenant on
Civil and Political Rights, G.A. Res. 2200 (XXI) A, at ¶ 2.1, U.N. Doc.
A/RES/2200(XXI) (Dec. 16, 1966) (“Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals within its territory and sub-
ject to its jurisdiction the rights recognized in the present Covenant . . . .”
85
GLENDON, supra note 29, at 132 (internal citations omitted).
The biographers of René Cassin expose a weighty reason for the

unenforceable terms in which the Declaration was approved under.
Among the most powerful opponents of the Univer-
sal Declaration were the imperial powers of the time,
Great Britain, France, the Netherlands, Portugal and
Belgium. These states had absolutely no interest in
helping colonized people to turn the Universal Dec-
laration into a weapon to be used against their own
supremacy. France opposed measures advanced by
Cassin himself: the point at issue was the right of in-
dividual petition, which the Quai d’Orsay anticipated
would produce an avalanche of claims from colo-
nized people. Cassin made every effort to make the
right of petition acceptable to French diplomats, but
to no avail. Manifestly, the Universal Declaration
was framed in such a way as to enable the colonial
powers to sign it, but once signed, the fight for real-
izing the aspiration stated in it had just begun.86
A different characterization of the Declaration was pronounced
by Louis Henkin, who included the United Nations Charter, Univer-
sal Declaration of Human Rights, and the two Covenants in the “In-
ternational Human Rights Law” section of his textbook on Interna-
tional Law.87
The duty to “observe faithfully and strictly” not only
the provisions of the Charter but also of the Universal
Declaration was proclaimed by the General Assem-
bly in the 1960 Declaration on the Granting of Inde-
pendence to Colonial Countries and Peoples. Simi-
larly, the 1963 Declaration on the Elimination of All
Forms of Racial Discrimination recognized that
every State shall “fully and faithfully observe the
86
JAY WINTER & ANTOINE PROST, RENÉ CASSIN AND HUMAN RIGHTS: FROM
THE GREAT WAR TO THE UNIVERSAL DECLARATION 349 (2013).
87
See LOUIS HENKIN ET AL., INTERNATIONAL LAW: CASES AND MATERIALS
599-635 (1993); but see LAUTERPACHT, supra note 75, at 367 (“Not being a legal
instrument, the Declaration would appear to be outside international law. Its pro-
vision cannot properly be the subject-matter of legal interpretation.”).
provisions of . . . the Universal Declaration of Hu-

man Rights.” Both declarations were adopted unan-
imously.88
Taking the above mentioned developments into ac-
count, the unofficial Assembly for Human Rights,
which met in Montreal in March 1968, stated that the
“Universal Declaration of Human Rights constitutes
an authoritative interpretation of the Charter of the
highest order, and has over the years become a part
of customary international law.” In the Declaration
of Teheran, the official International Conference on
Human Rights, which met at Teheran in April-May
1968, reached a similar conclusion and proclaimed
that the “Universal Declaration of Human Rights
states a common understanding of the peoples of the
world concerning the inalienable and inviolable
rights of all members of the human family and con-
stitutes an obligation for the members of the interna-
tional community.” The General Assembly of the
United Nations in December 1968 endorsed the
Proclamation of Teheran “as an important and timely
reaffirmation of the principles embodied in the Uni-
versal Declaration of Human Rights.”89
Concluding his view of the Declaration, Henkin further stated,
It has been suggested that the Universal Declaration,
after the U.N. Charter, is the most influential instru-
ment of the second half of the twentieth century. It
underlies the entire international law of human
rights, but, as the Declaration itself contemplated, its
principal influence may have been to secure the
recognition of human rights by states and instill the
idea and the principles of human rights into the na-
tional constitutions and laws of virtually all states.
88
HENKIN ET AL., supra note 87, at 606 (citing LOUIS B. SOHN & THOMAS
BUERGENTHAL, INTERNATIONAL PROTECTION OF HUMAN RIGHTS 518 (1973)).
89
Id. at 606-07 (citing SOHN & BUERGENTHAL, supra note 87, at 518-19 (in-
ternal citations omitted)).
The Universal Declaration has been copied or incor-

porated in numerous constitutions of new states.90
This is the sweet illusion in which many legal scholars have
lived throughout the second part of the twentieth century. The Dec-
laration as well as the Covenants and the various Conventions on
different aspects of human rights suffer from a basic failure: a siza-
ble portion of the member states of the UN, more than half, live un-
der dictatorial regimes. Some of these countries have intolerant re-
ligious legal systems that do not abide by the most elementary of
principles and values contained in these international instruments.
“One study by Freedom House counted 90 ‘free countries’ out of
194 in 2013, where a free country is ‘one where there is open polit-
ical competition, a climate of respect for civil liberties, significant
independent civic life, and independent media.’ The other countries
experience a range of human rights abuses.”91 One must conclude
that despite the opinion of a few eminent scholars and the insisting
proclamations of the UN, the Declaration, as well as the other doc-
uments that followed, are mere declarations, wishful resolutions,
that are not put to practice in the larger number of states and do not
protect the majority of humankind.
Saudi Arabia abstained from the General Assembly vote that ap-
proved the Declaration because of the provisions that equate men
and women’s right to marry and sets the freedom to change one’s
religion.92 Previously, when the Declaration was being discussed in
the Third Committee, the Saudi delegate accused the drafters of con-
sidering
Only the standards recognized by Western civiliza-
tion and [ignoring] more ancient civilizations which
were past the experimental stage, and the institutions
90
HENKIN ET AL., supra note 87, at 608.
91
POSNER, supra note 68, at 4. Countries with the highest scores include the
United States, Canada, Australia, New Zealand, and most European countries.
Arch Puddington, Freedom in the World 2013: Democratic Breakthroughs in the
Balance, FREEDOM HOUSE 4, https://freedomhouse.org/sites/de-
fault/files/FIW%202013%20Booklet_0.pdf. Israel, which has a highly developed,
well-functioning democratic system, is not usually mentioned as a consequence
of the generalized demonization campaign of the Jewish State.
92
Id.
of which, for example marriage, had proved their

wisdom through the centuries. It was not for the
Committee to proclaim the superiority of one civili-
zation over all the others or to establish uniform
standards for all the countries in the world.93
This was an honest position taken by a state that did not respect,
and continues to disrespect, human rights and makes no secret of
it.94 Similar charges of ethnocentrism were raised by other members
of the UN such as the states that made up the Soviet bloc as well as
the Union of South Africa.
The United Nations has grown more than three times since 1948.
The Declaration has become a real ethnocentric document, as wit-
nessed by the relative, often diminutive, application of human rights
in the great, ever growing number of non-democratic states that be-
came members of the organization. It is important to take into con-
sideration that at the time the Declaration was approved, UN mem-
bership was composed of twenty-one countries in North and South
America, sixteen countries in Europe, fourteen countries in Asia,
four countries in Africa, and 3 countries in the South Sea Islands,
for a total of 58 member states.95 In 2014, the UN was composed of
194 members, the majority ruled by non-democratic, non-human
rights respecting regimes.96 Therefore, despite its title, the Declara-
tion has limited applicability and attempts to extend globally are
bound to fail. In theory, the Declaration reflects “a universal concern
of mankind, [but] in fact, the disparity of standards, systems and
93
94
Saudi Arabia is not so honest anymore. In 2007 it ratified the treaty banning
discrimination against women; however, by law, it subordinates women to men
in all legal areas. The punishing system in Saudi Arabia follows Koranic patterns:
“amputation of a hand for theft, stoning for adultery, one hundred lashes for sexual
relations before marriage, [and] death by decapitation for apostasy . . . .” Vivian
Grosswald Curran, Book Review, 61 AM. J. COMP. L. 721, 724 (2013) (reviewing
GILLES CUNIBERTI, GRANDS SYSTÈMES DE DROIT CONTEMPORAINS (2011)).
95
See History of the United Nations, UNITED NATIONS,
http://www.un.org/en/sections/history/history-united-nations/index.html (last
visited May 23, 2016).
96
See id.
values is too great to make an effective international organisation

possible in this field.”97 Time has proved him right.
There was a clear, express manifestation of the lack of univer-
sality of the Declaration—not only de facto, but also de jure. In
2012, in a blunt statement by the Association of South East Asian
States (ASEAN), the Human Rights Declaration was adopted by the
countries belonging to the Association.
Articles 6 and 7 of the ASEAN Human Rights Declaration pro-
claim,
The enjoyment of human rights and fundamental
freedoms must be balanced with the performance of
corresponding duties as every person has responsi-
bilities to all other individuals, the community and
the society where one lives. It is ultimately the pri-
mary responsibility of all ASEAN Member States to
promote and protect all human rights and fundamen-
tal freedoms.98
All human rights are universal, indivisible, interde-
pendent and interrelated. All human rights and fun-
damental freedoms in this Declaration must be
treated in a fair and equal manner, on the same foot-
ing and with the same emphasis. At the same time,
the realisation of human rights must be considered in
the regional and national context bearing in mind dif-
ferent political, economic, legal, social, cultural, his-
torical and religious backgrounds.99
The United States Department of State issued a statement ex-
pressing concern at the limitations and qualifications of the ASEAN
97
WOLFGANG FRIEDMANN, THE CHANGING STRUCTURE OF INTERNATIONAL
LAW 63 (1964).
98
Association of South East Asian States (ASEAN) Human Rights Declara-
tion art. 6, Nov. 18, 2012, available at http://www.asean.org/storage/images/re-
sources/ASEAN%20Publication/2013%20(7.%20Jul)%20-
%20ASEAN%20Human%20Rights%20Declaration%20(AHRD)%20and%20Its
%20Translation.pdf.
99
Id. at art. 7.
text, which “could weaken and erode universal human rights and
fundamental freedoms as contained in the UDHR.”100
In a later manifestation, a United States Department of State’s
Deputy Assistant Secretary explained,
[T]he [ASEAN] Declaration, as adopted ten days
ago, subordinates respect for fundamental freedoms
to an assumed cultural context. Yet universal human
rights are just that—universal. These rights are not
Western, or Eastern. These rights are not subject to
regional and national limitation. These rights do not
bear in mind political, economic, legal, social, cul-
tural, historical, or religious backgrounds . . . .Subor-
dinating universal rights to domestic law is a depar-
ture from more than 50 years of established interna-
tional practice of human rights, going back to the UN
Declaration.”101
The concerns and the critique of the State Department are naïve,
if not hypocritical. The Declaration of the ASEAN countries does
nothing more than honestly proclaim what has been known and
practiced from the very beginning by the non-democratic states: ei-
ther total or at least partial rejection of fundamental principles of
human rights proclaimed in the various UN documents. There was
100
John Crook, Contemporary Practice of the United States Relating to Inter-
national Law, 107 AM. J. INT. L. 207, 238 (2013) (citing Press Release No.
2012/1826, U.S. Dep’t of State, ASEAN Declaration on Human Rights (Nov. 20,
2012), available at http://www.state.gov/r/pa/prs/ps/2012/11/200915.htm)
(“While part of the ASEAN Declaration adopted on November 18 tracks the
UDHR, we are deeply concerned that many of the ASEAN Declaration’s princi-
ples and articles could weaken and erode universal human rights and fundamental
freedoms as contained in the UDHR. Concerning aspects include: the use of the
concept of ‘cultural relativism’ to suggest that rights in the UDHR do not apply
everywhere; stipulating that domestic laws can trump universal human rights; in-
complete descriptions of rights that are memorialized elsewhere; introducing
novel limits to rights; and language that could be read to suggest that individual
rights are subject to group veto.”)).
101
Id. at 238-39 (citing Daniel Baer, Deputy Asst. Sec., Dep’t of State, Key-
note Address to the U.S.-ASEAN Symposium on the ASEAN Human Rights Dec-
laration (Nov. 28, 2012), available at
http://www.state.gov/j/drl/rls/rm/2012/201210.htm).
no “departure” from international practice, but rather a confirmation

of an ongoing reality.
Thirty-five years after the adoption of the Declaration, Phillip
Alston observes,
It is sometimes suggested that “the doctrines of hu-
man rights as embodied in the Universal Declaration
of Human Rights may not be relevant to societies
with a non-Western cultural tradition or a socialist
ideology.” In its extreme form such an approach
would thoroughly undermine the existing system for
the international protection of human rights and cre-
ate a “free for all” situation in which each dictator
and each military junta, as well as each democrati-
cally elected but embattled government, could design
its own bill of rights to suit not only local traditions
but also its own self-interest.102
Alston and the Department of State personnel would do well to
go back to the classic commentaries of the drafters of the Declara-
tion in order to have a better understanding of the non-universality
and non-enforceability of the Declaration. Besides, what is prefera-
ble: a simple hypocritical adhesion to the Declaration by a state or
group of states that do not respect its principles, or an honest decla-
ration that restricts human rights, so that the rest of the world knows
exactly where a state or a group of states stand on the matter?
Against the belief that there can be no fully universal concept of
human rights,
It is sometimes suggested that there can be no fully
universal concept of human rights, for it is necessary
to take into account the diverse cultures and political
systems of the world. In my view this is a point ad-
vanced mostly by states, and by liberal scholars anx-
ious not to impose the Western view of things on oth-
ers. It is rarely advanced by the oppressed, who are
only too anxious to benefit from perceived universal
102
Philip Alston, The Universal Declaration at 35: Western and Passé or
Alive and Universal, 31 INT’L COMM’N OF JURISTS 60, 65 (1983).
standards. The non-universal, relativist view of hu-

man rights is in fact a very state-centered view and
loses sight of the fact that human rights are human
rights and not dependent on the fact that states, or
groupings of states, may behave differently from
each other so far as their political, economic policy,
and culture are concerned. I believe, profoundly, in
the universality of the human spirit. Individuals eve-
rywhere want the same essential things: to have suf-
ficient food and shelter; to be able to speak freely; to
practise their own religion or to abstain from reli-
gious belief; to feel that their person is not threatened
by the state; to know that they will not be tortured, or
detained without charge, and that, if charged, they
will have a fair trial. I believe there is nothing in these
aspirations that is dependent upon culture, or reli-
gion, or stage of development. They are as keenly felt
by the African tribesman as by the European city-
dweller, by the inhabitant of a Latin American
shanty-town as by the resident of a Manhattan apart-
ment.103
The text reveals the hope of humanity, but it does not reflect the
position of a great part of the member states of the UN, who are the
ones deciding who will live and who will die, who will have a se-
cured life and who will live in torment, who will enjoy the benefit
of state security and who will be discriminated against, who will be
free and who will lose his liberty and suffer torture, and who will
practice his religion freely and who will be imprisoned, tortured and
even killed for daring to stay loyal to his faith.
The major problem, however, lies elsewhere. As I have pointed
out, the Declaration, as well as the two following Covenants, have a
basic, fundamental deficiency: the Declaration and the Covenants
are directed exclusively to natural persons,104 without considering
103
ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND
HOW WE USE IT 96-97 (1994).
104
HENKIN ET AL., supra note 87, at 598 (“International Human Rights gener-
ally, the Universal Declaration, and, notably, the International Covenant on Civil
and Political Rights, address the rights of natural persons only.”).
the protection of communities, peoples, or the collective in general,

when the history, since its approval, has consisted of transgressions
of catastrophic dimensions against human groups. Taking aside the
atrocities committed during the Second World War, human rights
were never so vilified, human life never so cheapened, and never so
much suffering experienced by collectivities caused by other collec-
tivities or tyrants as after the approval of the Declaration. Despite all
the subsequent treaties, conventions, resolutions, declarations, com-
missions, councils, conferences, international and regional courts,
and other initiatives of the society of nations—all pretending to pro-
tect people and individuals—these atrocities continue to exist.
The idealistic view that every human being on earth is entitled
to protection could never be materialized based on a document that
directs itself to the individual because the member states of the UN
have different policies towards their citizens, as a result of their var-
ying cultures, religions, and political systems. However, with a doc-
ument that would clearly authorize the world community to inter-
vene in any state committing atrocities against its own people, the
African tribesman and the Latin American shanty-town resident
may not be able to reach the standard of living of the European city
dweller or the Manhattan apartment resident, but at least he would
be able to enjoy the same freedom from persecution and atrocious
behavior by his government or his compatriots. From one interven-
tion after another, the states that do not respect their citizens would
slowly, but surely, begin to consider the need to move to a policy
that avoids interventions from the outside. The habit of abstaining
from the worst acts would eventually lead these governments to a
softer, kinder, and better way of treating their people.
In other words, by avoiding the worst, the leaders of the African
tribesman and of the Latin American shanty-town dweller would get
nearer and nearer to treating their people on a basis of human dignity
and eventually, fully recognize human rights. Strong intervention,
practiced with careful strategy, by the world community, and a re-
spectful approach could change the “other side” of the globe.
An important consideration is the principle set in Article 2, par-
agraph 7 of the UN Charter, which provides, “Nothing contained in
the present Charter should authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of
any state . . . .”105 This principle has serious repercussions in the

successive atrocities and genocides, as it waters down any improve-
ment that could eventually derive from the fundamentals set in its
Preamble and the rights enshrined in the Declaration.106
That the human rights promises fell far short of the expectations
was to be expected, for each of the principal victorious powers had
troublesome human rights problems of its own.
The Soviet Union had its Gulag, the United States its
de jure racial discrimination,107 France and Great
Britain had their colonial empires . . . .it was not in
the political interest of these countries to draft a
Charter that established an effective international
system for the protection of human rights, which is
what some smaller democratic nations and non-gov-
ernmental organizations advocated.108
On more than one occasion the Russians delegates “attacked the
British colonial policies and made reference to the lynching of Af-
rican Americans in the United States. [A U.K. delegate] responded
with a long statement about the Russian concentration camps set up
by Stalin, about which the Russian government was keeping abso-
lute silence.”109 Although both sides were correct, these reciprocal
105
U.N. Charter art. 2 par. 7.
106
The exceptions for the application of enforcement measures include “the
existence of any threat to the peace, breach of the peace, or act of aggression,” but
do not include violations of human rights. Id. at art. 39.
107
In actuality, the United States practiced de facto discrimination as well.
From the 1940s through the 1960s, African Americans faced various forms of
legally sanctioned discrimination on the basis of their race, including sitting in the
back of buses and the denial of service at lunch counters. Allen Pusey, Precedents:
Students Spark Civil Rights Sit-Ins, A.B.A. J., Feb. 2014, at 72. “Acting Secretary
of State Dean Acheson wrote in 1946 that ‘the existence of discrimination against
minority groups in this country has an adverse effect upon our relations with other
countries.’” David Sloss, Book Review, 108 AM. J. INT’L. L. 576, 578 (2014) (re-
viewing RYAN GOODMAN & DEREK JINKS, SOCIALIZING STATES: PROMOTING
HUMAN RIGHTS THROUGH INTERNATIONAL LAW (2013)).
108
BUERGENTHAL ET AL., supra note 74, at 30-31.
109
accusations did not affect the progress of the work towards conclud-
ing a text that could be accepted by the members of the Human
Rights Commission.
III. CONCLUSION
The drafters of the Declaration committed a major historical and
legal mistake by tying the principles and rules of the Declaration to
Hitler’s devilish regime. Scholars that followed this analysis have
equally erred.
The Declaration was intended to protect individuals, but it does
not deal with minorities or any kind of human collectivity that suf-
fers under dictatorships or cruel regimes—where the real suffering
of human beings is concentrated. Instead, the Declaration is nothing
more than a mere declaration. It has no force of law, and was a
wasted effort.
The majority of the States that make up the United Nations in
our time are not human rights observant in their internal affairs. In
fact, the states most involved in drafting the Declaration were vio-
lating basic human rights principles themselves, which only demon-
strates the hypocrisy in which the Declaration was born. This hy-
pocrisy has continued throughout almost seventy years, as, with a
few rare exceptions, neither the UN nor a group of states have acted
to bring real, effective help to a persecuted minority. To add insult
to injury, democracies continue their commercial and economic
dealings with the greatest human rights deniers.
Legal literature, many states’, and later UN proclamations and
declarations have vehemently urged the importance and validity of
the Declaration, but are completely oblivious to the realities on the
ground. Terrible sufferings, such as persecutions, discriminations,
lack of basic liberties, ethnic cleansings, atrocities of all kinds, and
actual genocides, have affected, and continue to affect, billions of
people throughout the world. The Universal Declaration of Human
Rights and the documents that followed have had no influence over
those tragedies.

The Failure of UDHR

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The Failure of the Universal Declaration of Human Rights

Author(s): Jacob Dolinger

University of Miami Inter-American Law Review is collaborating with JSTOR to digitize,

The UN Human Rights Commission dedicated over two

I. THE ORIGINS OF THE UNIVERSAL DECLARATION ON HUMAN

I. THE ORIGINS OF THE UNIVERSAL DECLARATION ON HUMAN

Belgium engaged in some rather cruel policies in Congo7 and France

own constitutional systems? Perhaps the “internationalization of hu-

You will have to look for a basis for a fundamental

in the world” and “development of friendly relations between na-

the Soviet Union did not expect these assurances to

of other UN conventions initially established their le-

should have an added paragraph stating that any advocacy of na-

brought up his colleagues’ proposition again. At the end, the

Regarding the Declaration’s Preamble, I have two remarks.

amounts to a horrific view of history, as well as a preposterous his-

abuse their people’s human rights necessarily pose a greater threat

The two basic Covenants, the International Covenant on Civil

II. CHARACTERIZATION OF THE UNIVERSAL DECLARATION

effective remedy against their violation in independent and impartial

Justice and United States Ambassador to the United Nations, Arthur

considerations of humanity.”); Cf. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, at

legal character appeared at the very moment of its approval by the

A step forward in a great evolutionary process. It [is]

The biographers of René Cassin expose a weighty reason for the

provisions of . . . the Universal Declaration of Hu-

The Universal Declaration has been copied or incor-

of which, for example marriage, had proved their

values is too great to make an effective international organisation

no “departure” from international practice, but rather a confirmation

standards. The non-universal, relativist view of hu-

the protection of communities, peoples, or the collective in general,

any state . . . .”105 This principle has serious repercussions in the

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