The Universal Declaration of Human Rights: Origins, Drafting, and Intent

&��� g-Y � J OHANNES MORSINK . .

The Universal Declaration of Human Rights

Pennsylvania Studies In Human Rights

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

The Universal Declaration of Human Rights Origins, Drafting, and Intent Johannes Morsink

PENN University of Pennsylvania Press Philadelphia

Copyright� 1999 Johannes Morsink

All rights reserved

Printed in the United States of America on add-free paper 10 9 8 7 6 5 4 3 2

Publ ished by

University of Pennsy lvania PreSB

Philadelphia, Pennsylvania 19104-4011

Library of Congress Cataloging-In-Publication Data Morsink, Johannes,

The Universal Declaration of Human Rights :

and intent/ Johannes Morsink. p.

or igins,

drafting,

em. - (Pennsylvania studies In human rights)

Includes bibliographical references (p.

) and Index,

ISBN 0-8122-3474-X (cloth) ; ISBN 0-8122-1747-0 (pbk)

1. United Nations, G enera l Assembly, Universal Declaration of

Human Rights-History. century.

I. Title

K3238.31948.M67

841.4'81'09-dc21

2. Human rights-Hiltory-20th

II. Series. 1999

98-41468 CIP

To

my sons

Erik Johannes and Alexander Bartlett

Contents

Introduction: The Declaration at Fifty

ix

Chapter 1: The Drafting Process Explained 1.1 The United Nations Charter and the Declaration 1.2 The Seven Drafting Stages 1.3 Original Intentions and the Cold War 1.4 The Eight Abstentions 1.5 Authors, Title, and Addressees

1 1 4 12 21 28

Chapter 2: World War II as Catalyst Personal Security and the Camps Nazification and Legal Human Rights The Problem with the Nuremberg 'frials Democracy, Free Speech, and Hate Speech 2.5 Special International Human Rights and the Role of the United Nations 2.6 Social, Economic, and Cultural Examples

36 37 43 52 58

Chapter 3: Colonies, Minorities, and Women's Rights The Communist Push for Nondiscrimination The Problem of the Colonies Race, Color, National Origin, and Language Political Opinion, Property, and Birth The Women's Lobby and Women's Rights

92 93 96 102 109 116

Chapter 4: Privacy and Different Kinds of Property 4.1 The Latin American Connection 4.2 Inviolability and Privacy Rights 4.3 Should Personal Property Be Singled Out?

130 130 134 139 146 152

2.1 2.2 2.3 2.4

3.1 3.2 3.3 3.4 3.5

4.4 "Alone as Well as in Association with Others" 4.5 A Minimum Within a Larger Framework

72

88

viii

Contents

Chapter 5: The Socialist Shape of Work-Related Rights 5.1 Freedom and the Right to Work 5.2 The Right to Protection Against Unemployment 5.3 The Campaign for Trade Union Rights 5.4 Union Shops, Strikes, and Levels of Implementation 5.5 Conditions: "Human Labour Is Not a Merchandise"

157 158 162 168 174 181

Chapter 6: Social Security, Education, and Culture 6.1 Food, Clothing, Housing, and Medical Care 6.2 Troubles with the Phrase "Social Security" 6.3 The Rights to Full Development, Education, and Culture 6.4 The Distinction Between "Old" and "New" Human Rights 6.5 The Organic Unity of the Document

191 192 199 21 0 222 232

Chapter 7: Duties and Communities 7.1 The Duties and Communities of Article 29 7.2 Protecting the Family, Motherhood, and Childhood 7.3 The Rights of Religious and Educational Communities �.4 The Omission of a Special Minority Rights Article

239 241 252 258 269

Chapter 8: Article 1, the Preamble, and the Enlightenment 8.1 A Bargain About God and Nature 8.2 "Inherent," "Inalienable," and "Born" 8.3 Reason and "the Conscience of Mankind" 8.4 The Rights to Petition and Rebellion 8.5 Human Rights as Means and Ends 8.6 The Declaration and Human Rights Education

281 284 290 296 302 313 320

Appendix: The Universal Declaration of Human Rights with a Guide to Discussions of Specific Topics and Articles

329

Notes

337

Acknowledgments

379

Introduction: The Declaration at Fifty

It is inevitable that a document like the Universal Declaration of Human Rights should raise questions about the possibility of there being universal values. This questioning started before the document was even finished, has continued to this day, and will probably never end. In 1947 the UN Human Rights Commission that wrote the Declaration received a long memorandum from the American Anthropological Association (AAA). The AAA was worried about the problem of ethnocentrism (holding the values of one's own cul­ ture as superior to those of other cultures). It is hard to avoid making ethnocentric judgments because we grow up with the values of our own group or society, and we almost never stop to analyze them. This process of enculturation, as the AAA told the Commission, is "so subtle, and its effects so far-reaching, that only after considerable training are we conscious of it."1 The anthropologists believed that the Human Rights Commission was in danger of making such ethnocentric judgments in the International Bill of Rights. As they saw it, "the primary task" the drafters faced was to find a solution to the following prob­ lem: "How can the proposed Declaration be applicable to all human beings and not be a statement of rights conceived only in terms of values prevalent in the countries of Western Europe and America?" (p. 116). The AAA was worried that this problem had no good solution. The anthropologists highlighted three propositions for the Commission to pon­ der: (1) "The individual realizes his personality through his culture, hence respect for individual differences entails respect for cultural differences"; (2) "Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered"; and (3) "Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to. that ex­ tent detract from the applicability of any Declaration of Human Rights to mankind as a whole" (emphasis added). Behind these propositions lay the conviction that "what is held to be a human right in one society may be regarded as anti-social by another people, or by the same people in a different period of their history." 2 Depending on how we interpret the phrase "to that extent" in the third proposi­ tion, the Commission was either asked to be extremely careful so as not to recommend merely Western values to the rest of the world, or was politely told that it was trying the square the circle and that the job it had been given by the Economic and Social Coun-

x

Introduction

cil could not be done.3 Given that the AAA also held that no qualitative way of compar­ ing cultures had yet been found, I believe that they thought the job could not be done.4 ·The drafters of the Declaration clearly thought otherwise. Since they went ahead in spite of these warnings, they must have thought that they had found a way of qualita­ tively comparing different value systems that shape different lifestyles and even whole cultures. What they produced has profoundly changed the international landscape, scattering it with human rights protocols, conventions, treaties, and derivative decla­ rations of all kinds. At�end of the twentieth c;:enttrr_y_there is not a single__nation, c;:ul­ tureJ--or_p�
5

Stage I

The First Session of the Commission, that is stage 1, met in january and February 1947. As soon as the delegates came to discuss the machinery for drafting an international bill of rights, the issue arose as to whether to entrust the drafting of the Declaration to a committee or to the Secretariat. It was decided that "the Chairman of the Com­ mission on Human Rights, together with the Vice-Chairman and the Rapporteur, undertake, with the assistance of the Secretariat, the task of formulating a prelimi­ nary draft international bill of human rights." It was also agreed that this executive group- chairman, vice-chairman, and rapporteur- could consult any member of the Commission and experts "chosen with consent of their governments, Members of the United Nations" (SR.l2/p. 5). This last limitation was later removed when the drafting group was given permission to "consult any document or person deemed by them of relevance to their work" (SR.l8jp. 2). These executives had one meeting, which john P. Humphrey, the newly appointed Director of the Secretariat's Division on Human Rights, also attended. Humphrey re­ ports that "it was typical of Mrs. Roosevelt that she should want the drafting commit­ tee to begin work at once and she invited her two colleagues and me to meet her in her Washington Square apartment on the Sunday following the adjournment," at which Humphrey was asked to prepare a draft of the Declaration. That meeting took place on February 17, which was a good day for some tea and philosophizing. Writes Humphrey: [Peng-chun] Chang [China] and [Charles Habib] Malik [Lebanon] were too far apart in their philosophical approaches to be able to work together on a text. There was a good deal of talk, but we were getting nowhere. Then, after still another cup of tea, Chang suggested that I put my other duties aside for six months and study Chinese philosophy, after which I might be able to prepare a text for the committee. This was his way of saying that Western influences might be too great, and he was looking at Malik as he spoke. He had already, in the Commission, urged the importance of historical perspective. There was some more discussion mainly of a philo­ sophical character, Mrs. Roosevelt saying little and continuing to pour tea.a

A.]. Hobbins's research in the McGill Humphrey archives shows that soon after he was asked, Humphrey started to write various drafts of the Declaration.9 The com­ ments on one his drafts indicate that he showed it to Eleanor Roosevelt on Febru­ ary 28. He had a mimeographed draft ready by March 15. This last draft is the same as the one that he distributed at the first meeting of the Drafting Committee in early June 1947. Some of the delegations that had at first supported the decision to delegate the drafting to their executive committee had second thoughts. The USSR delegate started the revolt by objecting to the bill's being drafted by what he called "a small group of experts" (AC.l/2/p. 2). He was joined by the delegates from Canada, Chile, Czechoslo­ vakia, and France. As a result of all this dissatisfaction the Council was ready to vote on a proposal to enlarge the drafting group from three to eight members, coming from Australia, Chile, China, France, Lebanon, the USSR, the U.K., and the U. S. Antici­ pating this change, Eleanor Roosevelt, as chair, quickly wrote ·the Council a letter in which she said the Commission would do what it was about to be told to do. The Coun­ cil was pleased and its resolution "Requests the Secretariat to prepare a documented outline concerning an International Bill of Human Rights" (p. 6). It then noted Roose-

6

Chapter t

velt's intention to "prepare, on the basis of documentation supplied by the Secretariat a preliminary draft of an International Bill of Human Rights" (p. 7). The enlargement of the Drafting Committee from the three executives to eight representatives made the drafting process more inclusive and enhanced the universality of the Declaration. The change in the wording of the mandate to Humphrey from being asked to write a "draft" to being requested to make a "documented outline" of one had no practical import. Humphrey tells us that he complied with this change of mandate by simply giving a new title to the document he had been working on since that meeting in Eleanor Roosevelt's apartment.10 After the Council met and asked for an outline he went to New York's Lido Beach Hotel for a week to finish his draft and to pre­ pare working papers for the Drafting Committee that was to meet injune 1947. These papers reveal the extent to which Humphrey grounded his first draft in existing ma­ terial and in the instructions he received from the First Session of the Commission and from the Economic and Social Council. He had before him a collection of drafts, from which he borrowed freely.11 This scavenging for the best articles from the various drafts made for an inclusive first draft and explains, among other things, why----there are social, economic, and cultural rights in the Uni��r��Declaration.12 that this set thelone for the restmtlie proceedings is evident from Oi.e sentiment that Geoffrey Wilson, the British delegate, shared with Humphrey when they crossed the Atlantic together. Wilson confided to Humphrey that "once the Secretariat had in­ cluded something in its draft, it was very difficult for governments to object to its being there," a comment Humphrey took to be about social and economic rights , which the British had not included in the proposal they had submitted,IS But it applies to the en­ tire range of the Declaration. Throughout all the d rafting stages the burden of proof fell on those delegations that wanted to delete a certain provision. With regard to con­ tent also, from the beginning the scales were tipped in the direction of universality. Humphrey tells us that "the best of the texts from which I worked was the one prep ared by the A�erican Law Institute [which Panama had introduced in San Fran­ cisco], and I borrowed freely from ff'�). He did borrow whole phrases from this draft for his own articles 2, 3, 6, 7, 11, 15, 20, 22, 26, 30, 36, 41, and 42, th e last two of which are concerned with the right to "social security." Another bill that influenced him greatly was the one submitted by the Inter-Americanjuridical Committee. He bor­ rowed from it for his articles 3, 5, 17, 28, 32, 33, 35, and 37, th e last four of which deal with the rights to a nationality, to asylum, to health care, and to socially useful work. Humphrey claims that none of the drafts before him had in it the right to a l egal per­ sonality and that that right was his own "invention" (p. 40). He took his entire article 46, which dealt !!_ith _the ri hts of p eople belonging to "ethnic, Iiilgui!itic or religious minoritf�s," from the draft Hersch Lauterpacht ha pu lsfied in 1945.1' _!.hough he freely and frequen tly used the drafts he had with him, it seems equal ly clear that this draft was Hu mphre y 's own creative mixture and molding of the options before him. We must conclude that this Humphrey draft is both the first and the basic d raft of the Universal Declaration, first in time and basic in that it became the basis for all further deletions and additions. This document, numbered E/CN. 4/AC . l/3 ofjune 4, 1947, is the first draft ofthe Universal Declaration.

The Drafting Process Explained

7

Stage 2

On April 8, 1947, Eleanor Roosevelt appointed the expanded, eight-nation Draft­ ing Committee. The June meetings of the First Session of that Committee constitute stage 2 of the drafting process. There was plenty of time for the results to be passed on to the Second Session of the Commission which was scheduled to meet that Decem­ ber in Geneva. The delegates were presented with the following four important docu­ ments: 1. Draft Outline of International Bill of Human Rights, also called Avant Projet de Ia Declaration In ternationale des Droits de l'Homme ( E/CN 4/AC .1/3/June 4, 1947). This is Humphrey's first draft of the Universal Declaration, which I discussed above. The word "draft" in the title simply means that it is the draft Humphrey prepared, the various versions of which are in the McGill University library. It is also called an "outline" because the Economic and Social Council had phrased its request to Humphrey in terms of a "documented outline" of a bill. Having done all the work, Humphrey could not simply withhold his draft, nor could he simply call it a draft since that is not what his new mandate called for. So he called it a "draft outline." He admits that he "might have interpreted [that request] as meaning merely a list of rights. I chose not to," he says, "and prepared a draft declaration, which was however always known as the Secre­ tariat Outline." 16 This is the first official draft of the Universal Declaration. Its predecessors, also drawn up by Humphrey and discussed by Hobbins, are not part of the official UN records.16 2. Documented Outline (E/CN.4fAC.1/3/Add. 2 ofjune 9, 1947). This document was put together a little later than the draft outline above and provides docu­ mented support for the articles in the "outline." The first part of this document contained observations made by delegates at the First Session of the Commis­ sion, De �larations, and proposals submitted by various countries and nongov­ ernmental organizations. The document is over four hundred pages long be­ cause in part 2 Humphrey collated each article of his own "draft outline" with provisions of the constitutions of the member states. For instance, the right to a fair trial, which was in a great many of the world's constitutions, was con­ tained in article 6 of the Humphrey draft outline. He or his staff did this for every one of his {orty-t;:ight_ar.tJcle s. The fact that almost all of the articles in the Declaration were matched with existing constitutions adds a great deal to the authority and universality of the document. 3. Plan of the Draft Outline of an International Bill of Rights/Plan de l.:1vant­ Projet de la Declaration Internationale des Droits de l'Homme. (E/CN.4fAC.lf3/Add.l ofjune 2, 1947). Just in case the Economic and Social Council had meant for Humphrey to draw up only a list of subjects for possible rights, this document would satisfy that demand. Here Humphrey simply lists the rights- not in sen­ tences -of his own draft outline and shows us the structure and "chapters" behind the list. It shows that the forty-eight articles of the Humphrey draft were selected according to a well-thought-out rationale. He gave the delegates five rules that he had followed in writing his draft: (1) the constitutions of -

.

8

Chapter I

member states were taken into account; (2) the bill should be acceptable to all the members of the United Nations; (3) the bill should be short, simple, easy to understand, and expressive; (4) it should be a reaffirmation of the most elementary rights; and (5) it should cover the basic classifications of rights. Humphrey claimed that his draft satisfied all these criteria and that he had based these guidelines on the comments made by delegates to the First Session of the Commission (AC.l/7). 4. The United Kingdom Proposal. The fourth crucial document which all the delegates of the Drafting Committee received was a United Kingdom proposal for an international bill of rights (E/CN.4/AC.l/4). The difference between this United Kingdom document and the Humphrey draft was that the former was drawn up more in the shape of a le�ally �i��i_ng covenant, while Humphrey's dra!:t was more a declaration of pri�_pks and all nations, to the end that individual and

every

organ

of society,

every

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, both among the peoples of the Member States themselves and among the peoples of territories under their jurisdiction.

Here there are two more groups being addressed. The second italicized phrase (indi­ viduals and groups) refers to the secondary addressees of the document and the first (nations and peoples) refers to the third level of addressees. Both of these other levels are crucial in educating people about their own and other people's human rights and in the fight for the recognition and observance of these rights on a national and inter­ national scale. But nations, small and large groups of people, governments and states are not the prfmary addressees of the document. Individual human beings are, no maite r Where and When they lived Or liVe,7B

Chapter 2 World War II as Catalyst

One of the inevitable questions about the Universal Declaration is how so many dele­ gations from so many different nations and cultural traditions could come to an agree­ ment about a univerl!al moral code. We Baw in Chapter 1 that the procel!l! Ul!ed to draft the Declaration was a very inclusive one. That ill true, but it also has to be admitted that this process was dominated by nations from around the North Atlantic (with their friends and former colonies) and from Latin America, and that large regions of our world, such as Asia and Africa, were grossly underrepresented at the drafting table. I discuss the possible ideological fallout from this imbalance in Chapter 7. This chapter seeks to answer these questions: What is it about the idea of human rights that brings people of all sorts of different backgrounds into the circle of moral agreement? What lies at the heart of the moral consensus about human rights that was born in the 1940s and has expanded ever since? In the first meeting of the Commission on Human Rights, Henri Laugier, the as­ sistant UN secretary general in charge of social affairs, charged the Commission with the "task of . . . following up in the field of peace the fight which free humanity had waged in the fields of war, defending against offensive attacks the rights and dignity of man and establishing . . . a powerful recognition of human rights" (SR. l/p. 2). At the First Session of the Drafting Committee, Geoffrey Wilson, a United Kingdom dele­ gate, reminded his colleagues "of the historical situation in which the Committee met. It was one, he said, where Germany and other enemy countries during the war had completely ignored what mankind had regarded as fundamental human rights and freedoms. The Committee met as a first step toward providing the maximum possible safeguard against that sort of thing in the future." 1 During the final General Assembly debate in December 1948 the drafters made it abundantly clear that the Declaration on which they were about to vote had been born out of the experience of the war that had just ended : Charles Malik, the rep­ resentative from Lebanon, said that the document "was inspired by opposition to the barbarous doctrines of Nazism and fascism" (p. 857). Lakshimi Menon, his col­ league from India, told the Assembly that the Declaration was "born from the need to reaffirm those rights after their violation during the war" (p. 893). Like Bodil Beg­ trup, the Danish delegate, all the drafters wanted "to avoid the horrors of a new war" (p. 893) . "From the ruins of destruction wrought by the Second World War," said Jorge Carrera Andrade, the delegate from Ecuador, "man had once again fanned the immortal flame of civilization, freedom and law" (p. 918). Now that Nazism, fascism, · - " · - - : " �
Karim Azkoul, the Lebanese delegate, was led to observe that if Pavlov "insisted on driving a wedge between capitalist and communist, m�ority and minority democ­ racies, then there would be no other solution but to define in the Declaration what kind of democracy was meant" (p. 11). He liked the French definition of a democratic government as one thaUakes human rights seriously. The Australian suggestion to use the phrase "democratic society" instead of "democratic State" was accepted by a draft­ ing subcommittee (of Lebanon, India, and the U.K.), which made everyone's exercise of his or her human rights "subject to such limitations as are necessary to secure due recognition and respect for the rights of others and the requirements of general wel-

World War II as Catalyst

65

fare in a democratic society." A Soviet proposal to add at the end "and democratic State" was rejected by 9 votes to 4 with 3 abstentions. After that the text was adopted by 12 votes to none, with 4 abstentions (SR.52jp. 3). In the Third Committee, the Soviet Union made one last attempt to add at the end of 29(2) the phrase "and also [for the purpose of] the corresponding require­ ments of the democratic state" (AjC.3/304jRev.2). Pavlov defended his addition on the grounds that: '�ll rights laid down in the declaration would be implemented in democratic societies by democratic States. The law was nothing without the machin­ ery to implement it and, at the present time, that machinery was the State. It was impossible, therefore, to ignore the requirements of the democratic State" (p. 645). This proposal was not well received. New Zealand delegate A. M. Newlands objected because she felt that "an escape clause . . . should be as narrow as possible if the state­ ment of rights and freedoms was to have any real meaning" (p. 645). That meaning being that human rights are held over against the state. If the rights spelled out in the Declaration could be suspended by the requirements of the state, then the whole project had lost its meaning, as most delegates understood it. Aquino, the delegate from the Philippines, also saw this very clearly: "The U.S.S.R. amendment, by raising the State above . . . society, would," he said, "destroy the intent and meaning of the article. Since the definition of the 'corresponding re­ quirements' ofa State would lie with that State. it could u nder tbe terms of the..l].S.S.R. amendment annul all individual ri hts and freedoms contai edamtion" (p. 648). Alexan er Contoumas, the Greek delegate, did not want the door opened to "abuses by the State." He pointed to the subtle difference that exists between the phrase "requirements of a democratic society," where there was a definite danger of the word "state" slipping in for the word "society" and the text at hand, which spoke of "the requirements of morality, public order, and general welfare" in such a society (p. 649). Here the emphasis is on morality, public order and the general welfare, all of which are intimately linked to the observance of human rights. The Soviet amend­ ment was decisively rejected by a vote of 23 to 8, with 9 abstentions (p. 663). ·

The Rights of Fascists in Articles 19 and 20

According to Ernest Huber, Hitler's constitutional law scholar, there were in the Third Reich "of course no inborn inalienable political rights which are inherent in the individual himself and which would tend to limit and hamper the leadership of the Reich."77 True to theory, after Hitler gained power he swept away and destroyed every bit of the machinery just described. Immediately after he was appointed chancellor he got permission from President Hindenburg to dissolve the Reichstag and call for new elections. With the representatives of the people having been cut out of the pro­ cess of government, the Nazis now ruled by Hitler's emergency decrees. The first one was the Decree for the Protection of the German People, also called the Reichstag's Fire Decree because it was issued the morning after the Reichstag went up in flames. From that point on political organizations had to get advance approval for all meet­ ings, marches, and pamphlets. This decree gave the government the power "to shut down the presses of the left­ wing parties . . . to break up campaign rallies, to arrest oppone nts at will, [and] it also

annulled almost all the basic rights guaranteed by the constitution." ?& In one stroke the democratic rights offreedom of opinion and expression (Article 19) and ofassem­ bly and association (Article 20) were abolished. Other decrees followed.7D It was these decrees, and not the people's representatives with their periodic secret and universal election ballots, which in Nazi Germany expressed "the will of the people." Both these rights were incorporated into the Dedaration without any significant disagreement, partly as a reaction to Hitler's demolition of fundamental constitutional rights. Articles 19 and 20 of the Declaration presented the drafters with the special prob­ lem of how tolerant a tolerant society should be of those -like Nazi and fascist groups -who tJl,emselves are intolerant in word or deed. The answer to this question depends on the level on which the question is raised and even then we must distinguish between word and deed. It would seem that when a nation is in the process of organizing itself around a constitution or principles based on respect for human rights, at that point it does not make sense to give Nazis and other intolerant groups an equal, or even any, voice in the drafting process. It was no violation of any of the rights of the Nazis, or of any of the other Axis powers, that they were not invited to San Francisco to help orga­ nize the United Nations and that they were not asked to help draft the Universal Dec­ laration of Human Rights. Both of these events took place precisely because the world community wanted to protect itself against Nazism, racism, and fascism. The participa­ tion of the intolerant in public life, if there is to be such, must not be along lines they, the intolerant ones, draw up. That would perpetuate the horrors. This is not simply a question of who has the power. It is also a question of justice, for justice does not re­ quire that people who refuse to take a moral point of view be given a veto over the arrangements ofjustice that are being made. As John Rawls observes, '1ustice does not require that men must stand idly by while others destroy the basis of their existenc� .'' so But this does not answer the question of how tolerant a tolerant society-once it has been established -should be of those who are themselves intolerant in word or deed. It is on this level that the delegates differed, with various Soviet amendments arguing for no tolerance at all and the majority voting for a significant measure of tol­ erance. These USSR amendments forced the drafters to face the question of whether Nazis should have the right to free speech and assembly in a country that lives by the principles of the Universal Declaration. The problem of the free flow of information was a top agenda item in the early years of the United Nations because it was felt that the horrors of World War II were in part caused by the fact that Hitler had isolated his people from the outside world. Accordingly, in the hope of receiving some advice on "what rights, obligations and practices should be included in the concept of freedom of information," the Human Rights Commission created the Sub-Commission on the Freedom of Information (Sub.l/2/p. 2). Unfortunately, the First Session (May-June 194'7) of this new entity was entirely devoted to the agenda for the upcoming World Conference on the Freedom of Information, and no advice was given. Even so, the First Session of the Drafting Committee that same June had among its options Humphrey's four articles on the subject, three in the proposal of the United Kingdom, two in that of the United States, and another three in a French pro­ posal.81 Only the British proposal for the covenant included a restriction of "publica­ tions aimed at suppression of human rights and fundamental freedoms.'' In a note the

World War II as Catalyst

67

British delegation defended this phrase "because it would be inconsistent for a Bill of Rights whose whole object is to establish human rights and fundamental freedoms to prevent any Government, if it wished to do so, from taking steps against publications whose whole object was to destroy the rights and freedoms which it is the purpose of the Bill to establish" (SR.3Bjp. 12). The Drafting Committee adopted two articles on the freedom of thought and ex­ pression, neither of which contained any mention of limitations or restrictions: "Every one is free to express and impart opinions, or to receive and seek information and the opinion of others from sources wherever situated" and "There shall be freedom of expression either by word, in writing, in the press, in books or by visual, auditory or other means. There shall be equal access to all channels of communication." 82 The phrases "from sources wherever situated" and "to all channels of communication" are the origin of the phrase "through any media and regardless of frontiers" in Article 19 of the Declaration. In December 1947 the Second Session of the Commission passed these two arti­ cles on to the Second Session of its Sub-Commission on the Freedom of Information, which met in january and February 1948. In addition to asking for advice on these two articles it also asked the Sub-Commission to "consider the possibility of denying this freedom to publications and other media of public expression which aim or tend to inflict injury, or incite prejudice or hatred, against persons or groups because of their race, language, religion or national origin" (Sub.l/36). Neither of these two articles nor the proposals submitted to it by the United Kingdom and United States experts conta,ined any restrictions on the freedom of speech.83 Archibald R. K. MacKenzie, the Sub-Commission's expert from the United King­ dom, propos e d to merge the two articles from the Commission into one. This led to the adoption of the following text: "Everyone shall have the right to freedom of thought and communication. This shall include freedom to hold opinions without interference; and to seek, receive and impart information and ideas by any means re­ gardless of frontiers." 84 A small group was asked to verify the article's suitability for the Declaration. It gave the Sub-Commission two alternatives on the question of limi­ tations. The first alternative contained the limiting phrase "and having regard to the rights of others," while the second contained the limiting phrase "being liable only for the abuses of this freedom in cases determined by the law of nations." 86 The only experts to object to both versions because they did not limit these rights enough were the Czechoslovakian and Soviet experts. The latter observed that "the world had just emerged from a terrible war, the objectives and scope of the press had changed and it was necessary to set limitations to the liberty of the press if it were used as a vehicle of war propaganda and exhortation to revenge" (p. 4). In spite of the French expert Andre Geraud's observation that "to delete all mention of limitations would be an un­ realistic approach to the problem" the Sub-Commission took that very approach. It decided by a majority of eight votes to delete the limiting clauses from both alterna­ tive texts (p. 5). The Soviet Union continued its campaign for limitations in the Human Rights Commission itself and in the Third Committee. Several times it proposed an amend­ ment to Article 19 to the effect that "freedom of speech and the press should not be used for purposes of propagating fascism, aggression and for provoking hatred as

68

Chapter z

between nations" (E/800). Pavlov, the USSR representative, explained that the idea behind the amendment was "not to be content to affirm a right but to guarantee it" (p. 414). The freedom this article would give to the Nazis would undercut and threaten, he said, the very right affirmed in the article; without the limiting clause, the article would be self-destructive. For the same reasons his delegation proposed to exempt all organizations "of a fascist or anti-democratic nature" from the right to freedom of association proclaimed in Article 20 (E/800). In the fall of 1948 the Third Committee rejected both of these exclusionary amendments. Dehousse, the Belgian representative, voted against these Soviet amendments be­ cause even though he "hated fascism as intensely as did the USSR representative, [the word] could not be used in a legal document in which it was not clearly defined" (p. 414). To which the Polish representative, Fryderika M. Kalinowska, responded that "during the war waged against fascism the Allies knew very well what that word meant" (p. 420). Radevanovic, the Yugoslavian delegate, supported her, arguing that "the Declaration should not pass over in silence the danger to international peace [that came from] propagating fascism" (p. 420). The amendment denying Nazis the right to free speech was rejected with a vote of 23 to 10, with 13 abstentions (p. 425). The general sentiment, expressed by the delegations from Haiti, the U.K., India, Greece, Saudi Arabia, Thrkey, Pakistan, and Costa Rica, was that there was no longer any agreement on what the word "fascism" meant, to which some added the point that for that reason it should be avoided in a legal document (p. 425). Both of these points can be questioned. The first one because during the war there had been no such con­ fusion and the second one because most delegations did not see the Declaration - as a legally bindin doc ment in an case, but as one with moral force only. he Soviet delegation made it very difficult for t e ort t an ic-eountries and their allies to support these amendments. After the vote, Pavlov said that he was sur­ prised that countries like Belgium and France had rejected the mention of "fascism" in Article 19 under "the pretext that there existed no legal definition of that term. Countries which had suffered occupation by the Axis forces," he went on to say, "had no need for a legalistic definition to tell them the nature and horrors of fascism." He defined "fascism" as "the bloody dictatorship of the most reactionary section of capi­ talism and monopolies," implying that there was only a difference of degree and not one of kind between Nazi Germany and the Western democracies.88 Naturally, the Western powers were reluctant to vote for a Soviet amendment that (on the interpre­ tation of its sponsors) would deny themselves the right to free speech. Their reaction was the same to the Soviet proposal that Nazis be denied free­ dom of assembly. Pavlov wanted to guard against the abuse of that right by "fascist elements, which," he said, "existed in almost every European country except those with a people's democracy . . . [like the Soviet Union and its East European satellites] which guarded against them by law" (p. 430). His deeper meaning was that there was an inherent link between a country's being democratic in the "real" sense of being a "people's democracy" and its being antifascist. Conversely, any capitalist country that was not antifascist was bound to be antidemocratic as well. Since the Communists de­ fined the debate options along these strict lines, the Western democracies and their allies were caught between a rock and a hard place. Having fought the Nazis side by side with the Russians, they were sympathetic to the amendments. On the other hand,

World War II as Catalyst

69

the broadening of the meaning of "fascism" as a branch of capitalism and of "totali­ tarianism" as being applicable to their own forms of government made them hold back and vote down the Soviet amendment.87 As Lester Pearson, the Canadian dele­ gate to the 1948 December session of the General Assembly put it, "The term 'fascism' which had once had a definite meaning was now being blurred by the abuse of apply­ ing it to any person or idea which was not communist" (p. 899). As a result of these discussions on the possible abuse of the right to assembly and association, the Third Committee adopted the insertion of the word "peaceful" before the words "assembly and association" (p. 445). That word went some of the way toward meeting Communist worries. It might well be that in practice and through the courts the Nazis' right to these two freedoms would have to be drastically curtailed. But that did not need to be a reason to single them out in advance in the Declaration as not having these rights in principle. Eduardo Anze Matienzo, the Bolivian representative, may have had considerations of this sort in mind when he said that "his country had felt the effects of Nazism and fascism, but it believed that the surest way to cure those evils [mentioned by Pavlov] was to ensure basic freedoms" to all, Nazis included. "Free human beings," he said, "always tended toward good and repudiated evil" (p. 435) . Perhaps by being treated with initial tolerance even intolerant groups could be drawn into the circle of tolerance. But that line of thought was overshadowed by the rhetoric of the Cold War. Having witnessed the destruction of all democratic rights under National Social­ ism and having seen them replaced with the abhorrent Fuhrer principle, the drafters of the Declaration had no doubts about these political rights as being genuine human rights. The experience of the war had reinforced their belief that the cluster of rights spelled out in Articles 18, 19, 20, and 21 are universally the first ones dictators will seek to deny and destroy. These articles simply spell out the political implications of Articles 1 and 2.88 If we are all born with equal dignity and rights and if no one is by nature, birth, or divine appointment to rule over another, that can only lead to the equal par­ ticipation in government of Article 21's paragraph 1 -which must include the rights to freedom of thought, expression, and association (Articles 18, 19, and 20) - to offices that are open to all of 21's paragraph 2 and to "periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret ballot or by equiva­ lent free voting procedures" of 21's paragraph 3. Anything less would be an erosion of the fundamental equality laid down in the first two articles of the Declaration. Article 21 is more basic than the legal ri hts described in the previous section be­ · cause it ives eople the human right to bel codif the moral princtp es o t e ot er lega human ri hts into t omestic s stems. Most of what a government oes ts to write laws, which is why one early version of Article 21 spoke of everyone's "right to take an effective part directly or through his representative in the formation of law." 89 ·

Article 7 and Protection Against Hate Speech

I already mentioned the fact that the topic of the free flow of information was much discussed in the UN's first two years. At the same time the Soviet Union was engaged in a broad based campaign to get the United Nations to take the threat of the re­ currence of Nazism and fascism more seriously. But the Communists had made no

70

Chapter 2

headway with their campaign in the Sub-Commission on the Freedom of Information which was to advise the Human Rights Commission on these matters. They did, how­ ever, have far more success in the Sub-Commission on the Prevention of Discrimina­ tion and the Protection of Minorities, which success eventually led to the stipulation in Article 7 that "all are entitled to equal protection . . . against any incitement to such discrimination" as may violate any of the articles in the Declaration. Relying on precedents in the Communist constitutions of his day, Alexandre Borisov, the USSR expert, proposed to the Sub-Commission on the Prevention of Dis­ crimination and the Protection of Minorities that Article 7 of the Declaration include a paragraph stating that: ·�ny advocacy of national, racial and religious hostility or of national exclusiveness or hatred and contempt, as well as any action establishing a privilege or a discrimination based on- distinctions of race, nationality or religion constitute a crime and shall be punishable under the law of the state." 9° Borisov said that his proposal was a test of "whether or not the United Nations Organization was to be effective in its protection of minorities." 91 A heated discussion took place dur­ ing which the U.S. and Belgian experts more than once sought to prevent the Borisov ' proposal from being voted upon, but each time the chair ruled against them (SR.7/8). The upshot was the adoption of the following statement, which was sponsored by William McNamara, the Australian expert, and C. H. Wu, the expert from China: "The Sub-Commission recommends to the Human Rights Commission the inclusion in the proposed Convention or in the Declaration of Rights, at appropriate places, of clauses condemning incitement to violence against any religious groups, race, nation or minority." While all the different parts of the Borisov text were rejected, this Wu­ McNamara recommendation was adopted with 10 votes and only 1 abstention (pp. 12-13). This positive outcome encouraged Bogomolov, the USSR delegate to the Work­ ing Group of the Second Session of the Human Rights Commission. He brought the rejected Borisov proposal to the attention of his colleagues both when Article 3 (now 2) and Article 6 (now 7) were being considered. When then Article 6 was up for dis­ cussion he made a statement in which he met the alleged conflict between free speech and hate speech head on. He said that the affirmation of the equality of individuals before the law should be accompanied by the establishment of equal human rights in p olitic al, social, cultural, and economic life. In terms of practical reality, this meant that one could not allow advocacy of hatred or ract!U, national, or

religious contempt . . , , Without such

a

prohibition, any Declaration would be useless. It could

not be said that to forbid the advocacy of racial, national or religious hatred constituted a viola­

tion of the fre e dom of the press or of free sp eech . Between Hitlerian racial propaganda and any other propaganda designed to s ti r up racial, national or religious hatred and incitement to war, there was but a short ste p. Freedom of the press and free speech could not serve as a pretext for propagating views which poisoned public op i nio n . Propaganda in favor of racial or n atio nal exclusiveness or superiority merely served as an ideological mask for imper ialistic aggression.

That was how German imperialists had attempted to justify by racial considerations their

for destruction and pill age

For

in Europe and Asia.

(AC. l/SR.7jp. 9)

plan

these reasons the Soviet representative moved the Borisov proposal as a third paragraph to Article 6 (now 7). The reader will recall that in addition to condemnh�:g "advocacy of national,

World War II as Catalyst

71

racial and religious hostility or of national exclusiveness or hatred and contempt" the Borisov proposal also asked that the Declaration say that such advocacy "constitute[s] a crime and shall be punishable under the law of the state." 92 A. L. Easterman, who represented the World Jewish Congress at the Working Group meetings, "supported the proposal submitted by the Soviet representative" (AC.1/SR.7jp. 9). Other dele­ gates looked upon this addition as a breach of the rule that the Declaration should not be concerned with measures of implementation. When Eleanor Roosevelt "said it did not seem necessary to consider the Soviet representative's proposal," Bogomo­ lov objected and "formally requested a vote" (p. 11). The Working Group rejected the prohibition to incitement by 2 votes to 2, with 2 abstentions. Again a close vote. Pavlov, the USSR delegate to the Second Session of the Commission, took over where Bogomolov had left off and brought up the same proposal again. Professor De­ housse, the representative from Belgium, said he was opposed to the implementation aspect of the Soviet proposal. But he did like the prohibition of incitement to dis­ crimination and suggested that at the end of what is now Article 7 the words "and against any incitement to such discrimination" be added (SR.35jp. 3). While it turned down the BorisovjBogomolovjPavlov proposal itself, the Commission did adopt this Belgian spin-off by 10 votes to none, with 4 abstentions. The clause was debated in both the Third Session of the Commission and in the Third Committee, but each time it survived. In the Third Session the U.K. and Indian delegations proposed a joint amend­ ment that deleted this clause from the article (E/CN.4jp. 99). Wilson, the British delegate, said: In the United Kingdom where human rights had certainly been respected as much as in any country, there had never been any need for legislation to compel the authorities to take action against incitement to discrimination. The force of public opinion had always proved sufficient to deal with any attempts at such incitement. If the sentence included the phrase in question, the United Kingdom, feeling morally bound to carry out the provisions of the Declaration, would be obliged to pass laws which experience had shown were neither necessary nor desir­ able. It was inappropriate for the Commission to place such an obligation on any country; each country should be allowed to decide for itself how, within the framework of its own social de­ velopment, the principles laid down in the Declaration could best be put into effect.OS

Santa Cruz, the delegate from Chile, responded that "Unfortunately however dis­ crimination and incitement to discrimination did exist in some countries and for that reason the phrase was needed to ensure legal protection against such evil" (p. 14). Cassin also "strongly favored the inclusion of the phrase in question." "Incitement to discrimination," he pointed out, "included organized conspiracies and was extremely dangerous. Even in a democracy citizens should not be allowed liberties which ran counter to the liberties of others. A definite statement of the principle of legal pro­ tection against incitement to discrimination should therefore be made" (p. 15). The Uruguayan and U.S. delegations were opposed to the clause. Vilfan of Yugoslavia "par­ ticularly cherished the tradition of free speech; but as one who had been unfortunate enough to live under the fascist regime in Italy where discrimination was practiced, he felt that incitement to discrimination should be explicitly forbidden" (p. 16). The Third Session rejected by 6 votes to 5 with 5 abstentions a Lebanese amend-

72

Ch11pter 2

ment proposing the addition of the word "systematic" before the word "incitement." It also rejected a Chinese proposal to delete the crucial phrase "or against any incite­ ment to such discrimination." The vote was a close 8 to 7 with 1 abstention (p. 17). Given the closeness of this vote and the general interest in the free flow of informa­ tion, one would have expected a renewed challenge to the incitement clause in the much bigger Third Committee to which the results were sent. No such challenge materialized because a South African amendment to delete the entire last sentence of Article 7 (including the incitement clause) caught every­ one's attention.94 For reasons I discussed in Chapter 1, the South African position on what rights to include in the Declaration lacked integrity and its proposal to delete the second half of Article 7 was soundly defeated. The phrase "and against any discrimi­ nation in violation of this Declaration" was adopted by 46 to 0 votes, with 1 abstention. The phrase "and against any incitement to such discrimination" was adopted by 41 votes to 3, with 2 abstentions. Article 7 as a whole was adopted by an overwhelming 45 votes to 0, with South Africa the sole abstention. The open discussion of the hatred and contempt on which the system of apartheid was based convinced many of the drafters that people have a right to be protected not just against discrimination, but also against incitement to it. We should note one crucial difference between the original Borisov proposal and what the Commission and Committee adopted. While Borisov had proposed the outright prohibition of advocacy or incitement to hostility, hatred, and contempt, to be protected against such incitement. In other the Commission adopted the words, the Commission did not revise what it a wr tten m Articles 18, 19, and 20 when it gave to "everyone"- including Nazis and fascists- the rights to freedom of thought, conscience, and religion and the right to express these thoughts "through any media and regardless of frontiers" and to do so with like-minded people. Article 7 does not void these other rights. What it does do is circumscribe them with another right that is just as important and which we must use to help us interpret the more general limitations set forth in Article 29. ·

2.5 Special International Rights and the R�le of the UN

Most of the delegations had little difficulty voting for many of the rights in the Dec­ laration, for more often than not their own national constitutions also contained the particular right to be voted upon. All that was required was a shift from the national to the inter�ational level. And when the delegates considered how these rights were to be implemented, all they had to do was to think of a stepped-up vigilance on the part of their own states. Their governments would now do under an international um­ brella what they were already doing under their own. However, in the case of some of the rights in the Declaration this shift in perspec­ tive was not quite as easy, for most of the domestic constitutions of member states did not contain any of what I have called "special international (human) rights." National constitutions are not addressed to worldwide audiences and hence do not usually speak of rights which require more than one nation to implement, such as the right to move between countries (Article 13), the right to asylum (Article 14) , and the right

World War II as Catalyst

73

to a nationality (Ar ticle 15). For people to enjoy thes e rights various countries have to cooperate and hence give up a piece of their sovereignty. The same is true of Ar ticles 22, 28, 29 (3), and 30, which also require international cooperation. These rights are, there fo re, real test cases for any list of human rights, fo,{ in their case the ques tio n , of the problem of sovereignty can no longer he hidden behind the veil of positive national larx:-As Cassin said in the Third Committee of the discussions about asyluin , "in case of the articles studied so far, the national society in which the individual was living was required to ensure the rights in question. The right to asylum, however, was a conception of an essentially international character: it was therefore necessary tQ.. specify who was to ensure the eqjOfmeRt ef tkRt r igh t" (p. 328). The same observation applies to all the righ ts or articles discussed in this section . Article 1 3 and the Problem of Movement Between States

Article 13 has two p aragraphs , a domestic one and an international one: "(1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his cou ntry." In his first draft Humphrey dealt with these issues in two separate ar ticles . Humphrey's ninth article (H9) is the forerunner of what is now the first para­ graph: "Subject to any gene ral law adopted in the interest of national welfare or security, there shall be liber ty of movement and free choice of residence within the borders of each State" (AC.l/3). Roughly half of the constitutions in Humphrey's sur­ vey gave thei r people liberty of movement and choice of domicile. Any Cuban was free to "move from one place to another, and change residence without the necessity of a letter of security," Egyptians could "not be prohibited from staying in any par ticular locality, or [be] compelled to reside in a specified place."95 Humphrey's text closely followed the text submitted by Chile on behalf of the Inter-American juridical Com­ mittee, whi ch was the only one of the formal pro posals that contained this right.96 While Humphrey had a separate article H10, stating that "the right of emigra­ tion and expatriation shall not be denied," Cassin collapsed H9 and H10 into a single article. That is what the First Session of t he Drafting Committee adopted, together with a note stating that the right to leave a coun try was correlated with the right to enter another one �nd that the-��mmtssto n hoped that "these corollaries [woufdibe treated as a matter of international �(;ncern am:ftliaTmembers of the United Nations coop,erate hi-pr-;;vidiog such"faclrifies..-(EfCN.4757/j>-:-9)":Tfie-5e8sroiiuagreed with Wil­ son of the U.K. that the main pomt of tnt: arti cle "was the prevention of discrimina­ tion, on grounds of race, colour, where people migh t live and how they might move from place to place" (SR. l ljp . 14). It therefore sent the article for advice to the Sub­ Commission on the Prevention of Discrimination and the Protection of Minorities . This Sub-Commission immediately zeroed in on the problem of states th at might abuse the exceptions based on "the interest of national welfare and security." Eliza­ beth Monroe, the United Kingdom's expert, thought that "it was essential for this reservation to be drafted in such a way that Governments would not be able to make use of it to j us tify certain forms of persecution conducted in the name of the general welfare of the people, as had been done by the Nazis." 97 She supported a reference to

74

Chapter z

the UN Charter in the article itself and thought that "care should therefore be taken not to provide a loophole for States to evade this rule on the pretext of ill-defined general or mutual interests" (p. 20). Taking over this idea of a UN reference, Cassin proposed to the Working Group of the Second Session of the Commission this text: "Subject to any general law not contrary to the purposes and principles of the United Nations Charter and adopted for specific reasons of security or in the general interest there shall be liberty of move­ ment and free choice of residence within the borders of each state. Individuals shall have the right to leave their own country and, if they so desire, to change their nation­ ality to that of any country willing to accept them" (57/p. 8). The Working Group adopted this article, with the opening UN reference in it, by 3 votes to 1, with 1 ab­ stention, and the full Second Session of the Commission followed suit.98 As some delegates saw it, the problem with the above cited two-sentence text was that the opening Charter reference only governed the liberty of the first (within a country) sentence and not the movement of the second (between countries) sen­ tence.99 Upon the recommendation of the United States and United Kingdom delega­ tions and with a vote of 5 for, 1 against, and 2 abstaining, the Second Drafting Session deleted the opening UN clause from the first sentence of the article, the rationale being that the limitations stated in what was then Article 2 (later 29) were sufficient (SR.36jp. 7). The new wording for the second sentence ("the right to leave any coun­ try, including his own" ) was adopted upon the recommendation of the United King­ dom representative by 5 votes to none, with 1 abstention (p. 11). It was also decided at this time to delete the provision about nationality from the article and to deal with that in what became Article 15. Dropping the UN reference from the first sentence made both rights equally absolute, but it did not help those delegates who worried about the status of the international right to move between countries. Pavlov, the USSR representative, proposed that this right to leave one's own country be qualified by the phrase "in accordance with the established laws of that country" (p. 8). He wanted to combat the impression left by the text that "individuals could leave their country at will, forgetting duty to fatherland. The war had produced numerous examples of the results of such negligence. It would be morally wrong and contrary to democratic ideals to encourage such disregard of duty" (p. 8). He no doubt had in mind the thousands of Soviet partisans who fled the Soviet Union at the end of the war to live and stay in the West. His government had been seeking their return, in some cases successfully. To meet this challenge the French delegation had submitted a text that made the opening UN clause cover the second right (of movement between countries) as well. Both of these proposals were rejected.t00 The maj or ity of delegates felt that Article 29, which was then Article 2, dealt adequately with the question of limits. In the Third Session both the French and the USSR delegations offered the same amendments and they were again rebuffed. Metha, the delegate from India, for in­ stance, did.not want to write any limits into the article itself because, as she saw it, the article "aimed at establishin the rind le of freedom of movement, which like free­ dom of speech, freedom of meeting. etc.. was a fundamental human r g t .. . 5jp. 6). NoiTesting its case, in the Third Committee the USSR delegation proposed state limits to both sentences of the article (E/800),

World War II as Catalyst

75

Santa Cruz, the Chilean delegate, objected. He admitted that the state did of course have an interest in how the principle of freedom of movement was to be ap­ plied, but he objected to the inclusion of this idea in a declaration of human rights because that "would imply the renunciation of the inherent rights of mankind. A document drawn up in that [Soviet] sense would be a declaration of the absolute rights of the State and not a declaration of human rights" (p. 316) . He felt that "the freedom of movement was the &a�t=ed rigl:l:t gf c\lery human being" (p. a_I6). "In order to stress the danger of the amendment suggested by the USSR delegation, he reminded the Committee of the situation in Russia" when Peter the Great proclaimed the freedom of movement within his territory, but at the same time charged two hundred silver roubles for a special passport, which the majority of his subjects could not afford. Santa Cruz "quoted further examples from the history of Latin America during the Spanish colonization period, and declared categorically that no physical or moral au­ thority could justify the treatment of individuals as factors in the national economy." He added that all the exceptions were covered by Article 29 .101 The Third Committee rejected both of the qualifying state references. Accepted was an important Lebanese amendment which added the right "to return to his own country" (A/C.3/260). The delegations of the Philippines, the United States, and Greece spoke up on its behalf. But no one can leave one country without sooner or later entering another one. The right to leave is hollow without the right to enter. The right to ask for and be given asylum is therefore a necessary corollary of the right to leave one's own country. Thi� problem is different from the rights to emigrate and to immigrate, rights that at thh point in the discussion were replaced by an exclusive focus on the problem of refu· gees seeking asylum from persecution. As the references to the Nazi experience hav� already shown, the delegates were deeply concerned about the protection of thos� who are persecuted by their own state, as the Jews and other minorities had been in Nazi Germany. They were also very concerned about the waves of refugees produced by the 1948 Arab-Israeli war. Article 1 4 : Asylum. Palestinian Refugees. and War Criminals

Humphrey had included in his first draft two related articles, one on the treatment oJ aliens and one on political asylum. H33 stated that: "No alien who had been legall) admitted to the territory of a State may be expelled therefrom except in pursuance oJ a judicial decision or recommendation as a punishment for offences laid down by Ia\\ as warranting expulsion" (AC.l/3). Cassin sponsored the substance of this article, bu1 right from the start it ran into opposition. Wilson of the United Kingdom expressed the opinion that "if the international organization were to guarantee too many privi· leges to aliens in a given country, they might find great difficulty entering that coun try," with which point Cassin agreed (SR.9jp. 9). Wilson said that the provisions of thi1 article "were stronger than those in any Constitution he knew of" and that he wante< to see the article deleted. The United States delegation also wanted to delete it, as di< Ralph Harry from Australia. In his second rewrite Cassin dropped it from the list. Humphrey followed H33 with this H34: "Eve.!Y State shall have the right to _gran asylum to political refugees" (AC.l/3). I�as sponsored by Malik from Lebanon an