What's Wrong With Human Rights?
By Jim Kalb
FrontPageMagazine.com | December 11, 2002

The fountainhead of the modern human rights movement is the Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948. Today, when so much is up for grabs in the world, and the United States is fighting an enemy that combines contempt for human rights with readiness to use or misuse them to cover its own operations, the UDHR and what we make of it are more important than ever.

Most of us have mixed feelings about what are called "human rights." They've overthrown tyrants, but also given cover to causes like political correctness and radical feminism. The makeup of the U.N. Human Rights Commission -- the U.S. has been dropped as a member, but Libya is due to become chair -- as well as recent events like the Durban conference on racism show that the movement to set up a strong system of internationally-recognized human rights has gone very wrong. How, after all, is it possible to take a movement seriously that makes Libya a leading custodian of human rights?

Part of the problem is that the human rights movement and official U.N. human rights documents are heavily influenced by the Left, and go far beyond setting the minimal standards for civilized conduct that people have in mind when they talk about "human rights abuses." In the name of human rights, they support the realization of a leftist agenda through legal compulsion. The human rights movement has thus lent itself to a sort of radical PC imperialism, that in spite of its roots in Western progressivism has become -- as the Durban conference showed -- in substance anti-Western.

The situation is serious enough to call the status of the human rights movement into question. Some say the current situation is an aberration, others that the movement was flawed from the beginning. A close look at the UDHR is therefore necessary. Does it state principles to which Americans can sign on wholeheartedly? Or does it support objectionable tendencies in the current human rights movement? And either way, what do we do about it?

The UDHR was the product of a multinational UN committee chaired by Eleanor Roosevelt. It was adopted in the aftermath of the Great Depression and the Second World War, and reflects its time. It drew support from the post-Holocaust conviction that there must be some basic standards that all governments should live up to, and also from the apparent discrediting of both classical liberalism and the traditional Right. The future, it seemed, would be liberal-to-socialist, and the best hope for international peace and social progress seemed to lie in some accommodation among the principles of the New Deal, democratic socialism, and Soviet communism.

The committee drew on that understanding in their attempt to write a declaration that would lay out the basics of what was to be a binding code of conduct for government. Like other moral principles, human rights can be understood variously. To make them binding, they must be given a particular interpretation. The UDHR therefore had to specify what human rights are concretely. It did so by interpreting them in accordance with Western progressivism, and by attempting -- in the spirit of the wartime alliance -- to reconcile opposing understandings of what human rights are.

With Franklin Roosevelt's Four Freedoms as its guide, the UDHR attempts to combine the Anglo-American tradition of rights as limitations on government with the Continental conception of rights as claims on government. The former, exemplified by the Bill of Rights, views rights as restrictions on how government deals with individuals: government can't interfere with speech or belief, it must respect private property, it must follow prescribed procedures in enforcing the laws, and so on. The latter looks at the role of government in creating the setting in which men live, and so is more concerned with rights to education, social security, housing, equality and the like.

The two approaches are quite different. One says that government should leave men alone, the other that government should arrange the social environment so that men can live the right kind of life. The first treats government -- organized force -- as intrinsically dangerous and attempts to protect us from it. The second leads to open-ended schemes of social control that can't help but interfere with traditional Anglo-American liberties. The second is, in fact, hospitable to totalitarianism. When the two conflict, it's usually the Continental view that wins, because it gives government and its hangers-on more power and it is government that decides the issue. That is what has happened in the human rights movement. What might have been a movement to prevent future horrors by restraining government became instead a movement to extend government.

The UDHR packs a great deal of ambiguity and obscurity into its 30 articles. It includes what at first appear to be an odd assortment of things, from immunity to arbitrary arrest, torture and extra-judicial execution on the one hand, to copyright, the law of libel and slander, and the right to a paid vacation on the other. It says that workers must be paid both in accordance with the work they do, and with their needs. It gives "everyone ... the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." It touches, in fact, on all the major concerns of life in society.

To an extent, the document looks like what it is, the product of the rather heterogeneous committee that drew it up. Nonetheless, it has considerable underlying coherence. In particular, it is a fundamentally statist document. In spite of its many ambiguities, it makes some points quite clear. First, its principles are asserted to be of supreme importance, to the extent that at times the rhetoric sounds totalitarian, as when the document is said to proclaim:

"a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance." [Emphasis added.]

The supreme importance of the UDHR and the movement behind it is not intended to be merely rhetorical. A startling feature of the document, for those accustomed to the Anglo-American legal tradition, is that it offers no protection to those who find themselves in opposition to the United Nations itself. As Article 29, par. 3 says:

"These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations."

The UDHR thus recognizes no rights against the authority imposing it, only against lesser authorities. That feature puts the "human rights" it proclaims in line with the "diversity" and "tolerance" asserted by contemporary left/liberalism, which notoriously work only one way. It is radically at odds with the American Bill of Rights, which protects all parties and applies first and foremost to the Federal government itself.

In case there should be any doubt about the intent to exempt actions that support the United Nation and its principles from the necessity of complying with the UDHR, Article 14 provides:

"1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.

"2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations." [Emphasis added.]

The UDHR thus explicitly provides that if someone acts in a way "contrary to the purposes and principles of the United Nations" (for example, by publishing an article objecting to the UDHR) his actions are unprotected and he has no right to escape what in any other connection would be considered political persecution. The provision was added at the request of the Soviet Union, and was related to its demand for forcible repatriation of Soviet citizens after the Second World War, compliance with which led to the brutal murder of hundreds of thousands of former POWs and others. Nonetheless, the provision has general applicability and is in line with other provisions of the UDHR and later "human rights" documents.

The UDHR thus suggests the vision, familiar in left-wing thought, of a universal order of things to which opposition is forbidden because its goals (unlike those of lesser authorities) are uniquely and transparently good, however spattered with blood they may become.

Other provisions develop somewhat the suggestion of a new order:

"Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized." [Article 28.]
"Education ... shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace." [Article 26, par. 2.]

The projected world order that all children are to be educated to accept will feature both "civil and political rights" and "economic, social and cultural rights." The former are restrictions on government out of the Anglo-American tradition, but they are subject to broad exceptions on grounds of public policy (e.g., "public order and the general welfare") that make them rather unreliable. The latter are from the Continental tradition, and are socialist in tendency:

"Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality." [Article 22.]

"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family ... " [Article 25, par. 1.]

"Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment." [Article 23, par. 1.]

"Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection." [Article 23, par. 3.]

"Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay." [Article 24.]

Article 22 suggests some deference to the organization of the particular state, and thus seems to allow room for non-statist solutions. Nonetheless, the economic, social and cultural benefits to which everyone is said to have a right are so broad as to imply comprehensive central administration of social life. Otherwise the rights would be enforceable against no-one and so lack practical content. The reference to "national effort" supports that interpretation. The UDHR is therefore socialist or at least strongly welfare-statist in tendency, although it doesn't on its face demand any particular organization of economic life.

Neo-conservative supporters of the UDHR argue that the document's pro-family provisions refute claims that it is fundamentally leftist and centralizing, pointing out that it asserts that "The family is the natural and fundamental group unit of society" (Article 16, par. 3), calls for a family wage (Articles 23 and 25), and gives parents the right to choose their children's education (Article 26, par. 3).

However, isolated provisions can't change the nature of a document that overwhelmingly points away from particular local authorities and connections, and toward universal schemes that could only be realized bureaucratically. The family is not independent of the world around it, and experience shows that in an advanced welfare state it fragments. Article 25, par. 2, which provides that "All children, whether born in or out of wedlock, shall enjoy the same social protection," can be read as an early sign of what was to come: if marriage as a social institution matters at all, children born in wedlock will be more protected than other children, which would be contrary to the UDHR. The support the UDHR lends to the family is therefore highly equivocal.

What actually came after the UDHR, of course, was further radicalization of the human rights movement. "Human rights" are now clearly held to include a universal right to a politically-correct welfare state. Thus, the International Covenant on Economic, Social and Cultural Rights, one of the treaties that along with the UDHR constitutes the International Bill of Human Rights, establishes "the right of everyone to an adequate standard of living ... and to the continuous improvement of living conditions" as well as "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health." Each country is obliged to secure those rights "to the maximum of its available resources ... by all appropriate means, including particularly the adoption of legislative measures." Universal economic and medical well-being are worthy goals. It's hard though to see how anyone could expect to secure them as rights to every individual everywhere, except through some sort of all-pervasive welfare state.

The PC aspects of post-UDHR human rights documents are yet more ambitious. A few examples out of many illustrate the point:

1. The Convention on the Elimination of All Forms of Discrimination against Women, ratified by 170 nations (not including the United States), explicitly calls for massive PC re-education of whole societies. It requires governments to undertake "all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on ... stereotyped roles for men and women."

2. The Convention on the Rights of the Child (CRC) is the most widely accepted international agreement ever: the U.S. and Somalia are the only two states that aren't parties. Its provisions show the extent to which progressivist ideology trumps reality and ordinary good sense in human rights documents. On its face, for example, the CRC grants children freedoms with regard to information (Article 13) and association (Article 15) that are broad enough to turn parental supervision of juvenile socializing and TV-watching into a human rights issue.

3. Nor have the applications of the CRC been more reassuring. The U.N. committee charged with applying it has rebuked the United Kingdom for allowing parents to withdraw their children from school sex education programs. And the International Planned Parenthood Federation, a respected and influential organization in UN and human rights circles, apparently holds that the CRC supports the right of children, regardless of local law or custom, to be sexually active and to get an abortion without parental consent or involvement.

It's not clear what any of this has to do with what most people would consider protection against human rights abuses, or why it makes sense to write comprehensive international agreements on something as homely, and as entangled in religious, moral and cultural understandings, as the care and upbringing of children or popular notions of appropriate male and female behavior.

Clearly something has gone wrong, and the widely-shared impulse to prevent recurrence of horrors like the Holocaust has been hijacked in support of questionable enterprises. Nor is the problem a recent one. Our reading of the UDHR has shown that from the beginning the tendency has been to turn "human rights" from a few universally-acceptable principles that forbid gross evils like enslavement, torture and genocide into a comprehensive code for ordering world society.

The bad features of the current human rights movement result from the attempt by diplomats and international experts to create such a comprehensive code. The attempt ignores fundamental principles of free government. Good government doesn't come down from on high. Public order and morality spring out of history and reflection on concrete experience, and must be established and maintained by each people, to a large extent in its own way. That is the meaning of self-rule. American and Japanese government are not the same and can't be made the same, and the differences necessarily affect understandings of rights as well as obligations. Even if the form is the same, the substance will be somewhat different.

The problem with a comprehensive universal code that goes beyond prohibition of clearly abusive conduct is that it can't be based on the experience and outlook of any particular society. When it goes beyond the most limited and abstract principles -- as it must to be usable -- all it can reflect is the private perspective of those drawing it up, and that of their friends, associates and allies. It is that private perspective that a universal code of human rights makes authoritative everywhere. Accordingly, it is no surprise that the most striking feature of U.N. "human rights" documents is their tendency to transfer power from local and private institutions to the experts and transnational elites who write them (and who think it only fitting that they should tell the world how to govern itself). Pro-socialist and anti-family tendencies are thus innate to the enterprise.

So what now? Progressivist human rights, like the progressivist outlook generally, have very serious faults. They have been forcefully criticized by the traditional Right, the relativist Left, and skeptical realists. Socialism, PC and world government are attempts to abolish absolutely oppositions among classes, peoples and other groups that to a degree are inevitable in human society. The history of the last century demonstrates the destructiveness of such attempts, and the American government should not support them. It follows that we cannot fully accept the human rights movement as it has actually existed.

Nonetheless, the conception of human rights has been effective in encouraging opposition to obvious evils. For that reason it has gained support from people all over the world, including many whose fundamental loyalties are at odds with progressivism. In spite of problems of definition, the idea of human rights stands for the principle that there are some universal standards of conduct to which all governments should be held. That principle is worth preserving. It has embarrassed tyrants and heartened reformers from China to South America, and on occasion its effects have been as beneficial and dramatic as the fall of the Berlin Wall.

Some governments act horribly, and the ones that do usually threaten their neighbors as well as their own people. In the Muslim world today the notion of universal human rights supports alternatives to aggressively intolerant interpretations of Islam that threaten the peace and well-being of all of us. It is thus good policy as well as good morals to make an issue of grossly abusive government conduct in other countries. "Human rights" provide a language for doing so, and we cannot easily do without them.
Support for human rights should therefore be maintained as a principle of American foreign policy. To do so effectively requires a certain continuity with existing institutions and commitments. However, to ensure that "human rights" actually promote human freedom and well-being, we must oppose conceptions of them that destroy self-government and endlessly expand the powers and responsibilities of government.

Correctness of principle sometimes conflicts with continuity of policy, and the national interest sometimes requires flexibility. Nonetheless, in a matter that touches on basic principles of national freedom and well-being clarity is necessary. The United States should forthrightly advocate and pursue its own conception of human rights and their role in the international order. We should not accept or speak well of "international standards" simply because those active in the human rights movement have devised them and governing elites in other countries have signed on to them for whatever reason.

(Possible reasons include national prestige, indifference to unenforceable commitments, and the natural fondness of national elites for centralization and for arrangements that make it harder for constituents to hold them to account.)

The American view of human rights should emphasize the post-Holocaust concern for rights as protection against government acts that are so horrific as to be of international concern, and the Anglo-American tradition of rights as limitations on government. It should reject claimed universal rights to the promotion of equality and welfare that require continual bureaucratic intervention in society, although it may accept mitigation of inequalities and support for the poor as goals for each people to work toward in its own way. It should thus specifically deny the current dogma that all things asserted to be human rights are indivisible. It should emphasize the advantages for the independence and self-government of all countries of a limited and focused approach to human rights, and point out forcefully the sometimes totalitarian implications of opposing approaches. And it should be highly skeptical of proposals that turn international human rights into formal legal obligations rather than common political commitments.
"International human rights" are political and likely to stay that way. Durban, the U.N. Human Rights Commission (with Libya at its helm), and attempts by cultural radicals to advance their agenda under cover of "human rights" are convincing evidence of that. It would be more honest and productive to recognize that fact openly and act accordingly. It is not human rights as a code but human rights as a political symbol that have been behind whatever advances have come out of the movement. If exposure of outrageous conduct, appeals to common values, and rhetorical assertion of universal standards aren't enough to rally opposition, the fact that international lawyers believe the conduct violates formal pronouncements won't help much.

The proposed approach to human rights will be most effective if the United States respects existing commitments and symbolism as much as possible. Since “human rights" is an essentially contestable notion, reinterpretation can help us do so. We have seen that read literally the UDHR is a deeply flawed and even dangerous document. The provisions regarding asylum, for example, are sprinkled with the blood of Operation Keelhaul. We should therefore insist that it be interpreted in a non-fundamentalist fashion, as an historical document that reflects its time and needs to be understood in the light of further thought and experience.

The UDHR was not intended as the last word but as a statement of principle and aspiration. Its main functions have been to stand for the principle that government is not absolute, and to serve as a symbol of a common commitment to work toward a better world. To argue that the proposed American conception of human rights is the right one for the world today is to argue that the UDHR should be read accordingly: that provisions setting forth social goals should be taken in a far looser sense than those limiting government, and that human rights apply to actions progressives don’t like as much as those they do like. America should be making those arguments in the world forum, openly, honestly and vigorously. Unless something like them prevails, "human rights" are likely to advance tyranny far more than freedom and the public good.

Jim Kalb is a lawyer and independent scholar whose essays on politics and culture appear in periodicals in the United States and abroad. He holds a J.D. for Yale Law School and a B.A. from Dartmouth college. Visit his weblog View from the Right or email at kalb@aya.yale.edu.