Morsink, J (1999) The Universal Declaration of Human Rights - extracto democracia y libertad de expresión

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58 Chapter 2 
principles of his country." The Greek delegation "recognized, however, that promul­
gation of the principle in the declaration of human rights might, by implication, cast 
doubts upon the validity of the trials of war criminals in general, and of the trials of 
Nurnberg and Tokyo in particular. In order to preclude such a possibility Mr. Con· 
toumas thought it would be enough to have the Rapporteur mention specifically in 
his reports the doubts in that regard expressed during the general debate on article 9 
[11)" (p. 271) . 
Most of the delegations held a view between these two extremes, which is why 
they supported what exists now. They did not want the Declaration to comment ex­
plicitly on the merits of the Nuremberg process, a task they felt had been assigned to 
the Committee on Codification of International Law, but they also did not in any way 
want to cast doubt on the Nuremberg process. The phrase "under . . . international 
law" expressed that middle of the road. Benigno Aquino, of the the Philippines argued 
that the "prohibition of ex post facto law, which was part of the constitutional history of 
many countries had to be recorded in the declaration." He thought that "the fears of 
the Belgian representative, with respect to any questioning of the legality of the Nurn­
berg Trials or Tokyo Trials appeared unwarranted. It was obvious that considerations 
of international peace and welfare must supersede national considerations." 58 
The Communist delegations also did not think that there was any conflict be­
tween..!_ stro'itg prohibition of retroactivity and TheNurembergjmlgments;-Pavlov 
of the USSR "saw no grounafor-fear-B-&xpr-essed-by-t-he-Belgi�entative. The 
crimes of those brought before the Nurnberg Tribunal had constituted a glaring vio· 
lation o!._all the laws of war; they had in effect, been crimes under internatio�, 
There was no cause to fear that the adoption of paragraph 2 of article 9 [II] In Paris­
a city which but a few years ago had itself been under Hitlerite occupation-would 
be considered by anyone an amnesty for those crimes" (p. 267). Ljuba Radevano­
vic, the delegate from Yugoslavia, observed that "at the Nurnberg Trials the German 
war criminals had tried to invoke that principle [of nonretroactivity] . The Nurnberg 
Tribunal had rejected that concept. The nulla poena sine lege principle was almost uni­
versal in .national law; in �nal law, on the other hand, the responsibility was 
different?"lurn1ei-more, "the General Assembly had adopted a resolution codifying 
the legal findings of the [Nuremberg] decisions." 59 
The text of the paragraph 2 on which the vote was taken was the one submit­
ted by the delegation of Panama: "No one shall be held guilty of any (penal) offence 
on account of any act or omission which did not constitute a penal offence, under 
national or international law, at the time when it was committed. Nor shall a heavier 
penalty be imposed than the one that was applicable at the time the (penal) offence 
was committed" (p. 269). This paragraph was adopted with 19 votes for, 6 against, and 
19 abstentions . After that, on the recommendation of the United States delegation, 
the word "penal" was twice inserted into the text of this paragraph (p. 273) . 
2.4 Democracy, Free Speech, and Hate Speech 
Article 21 of the Declaration says that "everyone has the right to take part in the gov­
ernment of his country, directly or through freely chosen representatives ." There is 
a world of difference between how the will of the people was expressed in National 
World War li as Catalyst 59 
Socialism and the Declaration's demand, made in Article 21's paragraph 3, that that 
will be expressed "in periodic and genuine elections which shall be by universal and 
equal suffrage and shall be held by secret vote or by equivalent free voting pro­
cedures." It is difficult to overestimate the importance of these additional electoral 
stipulations. 
Already in Mein KampfHitler had described the young National Socialist Move­
ment as being "in its nature and inner organization anti-parliamentarian; that is, it 
rejects, in general and in its own inner structure, a principle of majority rule in which 
the leader is degraded to the level of a mere executant of other people's will and 
opinion" (p. 344). It is not that Hitler was sloppy about the details of democracy, but 
that he rejected the very principle of majority rule and hence the foundation stone of 
the democratic state. He defended instead what he called "the personality principle" 
of leadership and government and wanted it applied "from the smallest community 
cell to the highest leadership of the entire Reich" (p. 448). The personality principle 
dictated that the best, strongest, and brightest must rule those who are weaker and 
less pure.60 Hitler was consiste�t when he wrote in Mein Kampf that "a philosophy of 
life which endeavors to reject the democratic mass idea and give this earth to the 
best people-that is, the highest humanity- must logically obey the same aristocratic 
principle within this people [also] and make sure that leadership and the highest in­
fluence in this [Aryan] people fall to the best minds. Thus it builds not upon the idea 
of majority, but upon the idea of personality" (p. 443) . 
While most of the world's constitutions in the late 1940s also said that the au­
thority of government derived from "the will of the people," they differed greatly from 
Hitler's conception as to how that will was to be expressed. Different constitutions 
expressed different aspects of the democratic process. The inclusive list in the Dec­
laration's Article 21-periodic. equaL universal, djrect (or,through representatives), 
and secret suffrage-were present in the constitutions of China, France, the USSR, 
and Yugoslavia.61 Humphrey included three of these ("periodic, free and fair") in his 
first draft of the article and Cassin added the feature of "or through freely chosen rep­
resentatives." 62 In the first discussion Toni Sender, the representative of the American 
Federation of Labor, "stated that in her opinion this article should conclude with the 
words 'and by secret ballot' " (AC.l/SR.9/p. 2). Eleanor Roosevelt supported this sug­
gestion and it was done (SR.l4jp. 3). 
The Third Session, which was eager to cut the length of the document, dropped 
most of democratic details and adopted these three short paragraphs: "Everyone has 
the right to take part in the government of his country, directly or through his freely 
chosen representatives"; "Everyone has the right of access to public employment in 
his country"; and "Everyone has the right to a government which conforms to the ' I I 
of the people." 65 Eve s o e people" was almost lost to the 
artiCle, but was saved by Cassin (SR.62/p. 3) . The secrecy provision was taken out pri­
marily because the British delegation felt that "in non-metropolitan territories [i.e., in 
the colonies] the use of the secret ballot could not be imposed when its effect might 
be contrary to the intentions of Article 74[73] (b) of the Charter," which speaks of 
the need to assist the colonial peoples "in the progressive <!���l�_p�ent of their free 
political institutions, according to the particular circumstances h territery and 
its p�d thetr varymg stages o a vancement." 64 In other words, secret ballots 
60 Chapter 2 
at home, hut not in the colonies. A USSR-sponsored clause that included the compro­
mise phrase "and where possible by a secret ballot" was also rejected by 9 votes to 6, 
with 1 abstention (SR.62jp. 7). 
The most important amendments in the Third Committee were the ones that 
sought to get the lost democratic details put back into the third paragraph of the 
article. "To make more clear how the will of the people shall find its expression," the 
Swedish delegation proposed to add the clause "manifested in general and free elec­
tions or in equivalent voting procedures." Omitting the requirementof freedom or 
noncoercion, the USSR delegation proposed this otherwise very complete list: "as ex­
pressed in elections, which shall be conducted periodically and must be universal and 
equal and held by secret ballot." The Cuban amendment gave "everyone" the right to 
participate "in the Government of his country directly or through his representatives 
chosen by free and periodic elections, which shall be by secret ballot." The French 
amendment wanted to see the will of the people "expressed at free and genuine peri­
odic elections." The Iraqi amendment spoke of "the consent of the people exercised 
through periodic elections, referendum or plebiscite::88 
The following Chinese text found most favor with the delegates: "The will of the 
people is the source of the authority of government: this will shall be expressed in 
periodic elections, which shall be universal, genuine, equal, and held by secret ballot, 
or manifested in equivalent free voting procedures" (AjC.3j333).66 Mter the delegates 
voted to retain the clause "and held by secret ballot" by 38 votes to 2, with 7 ab­
stentions, they adopted this Chinese text by 39 votes to 3, with 3 abstentions. Haiti 
abstained on the secrecy requirement because of the door that opened to possible 
restrictions on the right to vote for illiterate people. Emile Saint-Lot, the Haitian dele­
gate, "reminded the members of the Committee that they were drafting a declaration 
which was not addressed solely to the Western hemisphere, but to the entire world; 
and according to figures supplied by UNESCO, illiteracy was .still very common, 85 
percent of the population of the world being illiterate." 6'7 
Though the U.S. delegation abstained in the vote on the secrecy requirement, in 
the discussion Durward V. Sandifer, its representative, did admit that "a secret ballot 
was necessary if the election was to be fair and impartial" (p. 452) . A note of realism 
was injected with the Lebanese representative's observation that "the fact that elec­
tions would be held periodically and by secret ballot would not ensure that they would 
be free. The Nazi government could have subscribed to all of those ideas and its elec­
tions would still not have been free," he said.88 
In the First Drafting Session Hernan Santa Cruz of Chile had "suggested that 
a provision concerning the right to form political parties be added" to the article 
(SR.9jp. 2). Cassin had responded that this was not necessary because "the liberty to 
form political parties already had been mentioned in Article 23 [20] , on the freedom 
of peaceful assembly and of association for political and other purposes" (p. 2). At the 
First Session of the Drafting Committee that was true, but in the Third Session that 
list of association purposes was dropped from the article . Therefore, it made sense for 
Dehousse, the Belgian delegate, to come back to the matter in the Third Committee, 
where he indicated that he wanted "according to the party system" included after the 
word "periodic." His reason was that "a duality or plurality of parties . . . was essential 
to the efficient functioning of the democratic system" (p. 4 70) . 
World War II as Catalyst 6 1 
Pavlov was quick to respond that "in his country, the bourgeois class had ceased 
to exist. There thus remained only workers and peasants," who could easily look after 
their own interests and he saw "under the prevailing [Soviet] system . . . no justification 
for the creation of other parties. The Belgian amendment was absolutely irreconcil­
able with the social structure of certain member States" (p. 471) . Dehousse "withdrew 
his amendment as a conciliatory gesture. He pointed out, however, that there existed 
in the U.S.S.R. not only the Communist party, but also the non-party block" (p. 471). 
Eduardo Plaza, the Venezuelan delegate, regretted this withdrawal and, judging from 
just Article 21, it does indeed seem that the Universal Declaration does not support 
the right to a multiparty political system. However, all the articles in the Declaration 
are subject to the prohibition of discrimination on the grounds stated in Article 2 (see 
Chapter 3). That means that in his or her enjoyment of the rights of Article 21 no one 
may be discriminated against on the basis of "political or other opinion." This con­
nection between Article 21 and Article 2 was not lost on the drafters. 
Now that we have the machinery of the democratic state before us, the absence 
of the word "democratic" itself, both in Article 21 and in the rest of the Decl�, 
needs3-n explanation Given that World War I I was fought to make the world free for 
democracy, it is certainly odd that the noun "democracy" never occurs in the Dec­
laration at all, not even in the Preamble, and that the adjective "democratic" occurs 
only once, in Article 29, paragrap!I 2. The same query arises with respect to the terms 
fascism and Nazism. Given that these movements gave ideological sanction to the hor­
rors that caused the moral revulsion that led to the proclamation of the Declaration 
one would expect the ideological culprits to be named at least in the Preamble. Thus, 
ideologically the Declaration is a very bare document; it mentions neither the win­
ning ideology (democracy) nor the losing one (fascism). The reason for the absence of 
these terms is that they got caught qp i_n the rhe.!_ori� of the Cold War. Th1smetonc 
distorted their meanings and made them unsuitable for use in a document that was 
designed to be acceptable to all the participating delegations. Below I discuss a series 
of amendments, involving Articles 27, 29, 19, 20, and 7, all of which called forth this 
Cold War of words. But they also cast light on the substance (and not just the word­
ing) of the articles involved. 
The Term "Democracy" in Articles 2 7 and 29 
Atomic bombs were dropped on the Japanese cities of Hiroshima and Nagasaki in 
1945 and for many years thereafter the United States government held internal discus­
sions on whether and how to share the atomic secrets with other nations, especially its 
allies. The existence of those unshared or selectively shared secrets greatly intensified 
the Cold War. These secrets also form the background to an amendment proposed by 
the Soviet Union to Article 27, which deals with the right to participation in culture. I 
give a full analysis of this article in Chapter 6 (6.3), but will here report on one USSR 
amendment that might have been accepted but for disagreements about the word 
"democracy." The atomic bomb had given the United States an edge in the Cold War 
and caused the Soviet Union to be greatly interested in the uses of science for pro­
gressive, democratic, and peaceful purposes. Its delegation proposed that to what is 
now Article 27 be added the stipulation that "the development of science must serve 
62 Chapter z 
the interests of progress and democracy and the cause of international peace and co­
operation" (E/800) . 
Pavlov, the USSR delegate to the Third Committee, explained that he was not sur­
prised that this USSR proposition had "met with opposition from certain delegations ." 
"Indeed," he continued, "where science was subservient to militarism and where intel­
lectual forces were concentrated on producing a terrible weapon of aggression for the 
destruction of millions of peace loving human beings, the USSR thesis that science 
must be placed at the service of peace became unacceptable" (p. 623) . The Argentina 
delegation said that it was sympathetic to the proposal, but the word "democracy" was 
too controversial and science should be made to serve mankind. Pavlov thought that 
was not enough. "Citing facts from the United States Press, he pointed out that in that 
country scientific research was controlled by the military authorities and development 
for military purposes . . . . The universities were transformed into veritable laborato­
ries of research of military purposes. Men of learning found their personalfreedom 
restricted" (p. 629). 
Mter the vote had been taken and the amendment defeated, Pavlov observed that 
"it was illogical to include in Article 23 [26] a definition of the purposes of education 
and to refuse in Article 25 [27] to lay down a similar definition of the purposes of sci­
ence. It should not be forgotten that science in the modern world could and often did 
serve the interests of aggression and reaction and was elaborating means for massa­
cring peaceful populations . . . . It was in that spirit that thirty-two American scientists 
had recently protested against their work being used to further not progress but de­
struction" (p. 636) . Stephan Demchenko of the UKSSR also "quoted US publications 
to show that in the US there was increasing military control in science, education 
and industry," but that "humanity expected the adoption of the USSR amendment" 
(p. 633) . 
There were two kinds of objections to the USSR amendment, one genuine and 
one spurious because it was primarily fed by Cold War rhetoric. The genuine objec­
tion came from delegations who really believed that it was better not to tie science 
to any kind of external standards at all, except the pursuit of truth. Count Carton 
de Wiart, the Belgian delegate, for instance, thought that "the USSR amendment was 
an attempt to assign science a political mission. While he wanted science to serve the 
cause of peace and co-operation among nations, he thought it was not for the dec­
laration of human rights to define its role. In any case, if it had to be done it would 
have been better to say that the aim of science was the search for truth" (p. 622) . The 
Cuban delegation also "was convinced that science should remain entirely free and 
that the State should not interfere at any stage in scientific or literary creation. On the 
contrary, it was democracy which should be placed at the service of science, the latter 
itself the servant of truth. Those who had faith in man could not fear truth. That was 
the spirit underlying the declaration of human rights." 69 
· The more spurious objection enmeshed the USSR amendment in the rhetoric of 
the Cold War. Eleanor Roosevelt immediately attacked the amendment because "the 
words 'progress' and 'democracy' applied to abstract ideas for which no uniform inter­
pretation existed. It seemed dangerous to adopt a text which could be interpreted as 
a pretext for the enslavement of science. The US delegation would under no circum­
stances agree that science should be placed at the service of politics. Yet that might 
World War II as Catalyst 63 
be the practical effect of the USSR amendment." 7° Corbet of the United Kingdom 
said her delegation shared all the USSR goals, but "unfortunately, the conception 
of democracy and of progress did not seem to be the same everywhere. The word 
'democracy' could be interpreted in many ways. She thought science should not be at 
the service of an ideology." 71 
The USSR amendment was voted on in three parts, first on whether "the devel­
opment of science must serve the interests of progress," then on whether it should 
serve "democracy," and last on whether it should serve "international peace and co­
operation." All three proposals were rejected. In spite of the sympathy expressed for 
the basic proposition, none of these votes was a close one. This brings to mind jorge 
Carrera Andrade's explanation of the Ecuadoran vote, which supports the suggestion 
that the amendment was not dealt with on its merits. He said that he had "voted in 
favour of the USSR amendment in the firm conviction that science should serve the 
interests of life rather than death, of peace rather than war. In so doing, he had con­
sidered only the ideas, and not as other delegations appeared to have done, political 
matters" (635). Salvador M. Graziadio, the Argentine representative, also "had voted 
in favour of the USSR amendment in the conviction that science should serve the 
interests of progress and international peace." 72 
One of the clearest discussions of the phrase "democracy" took place in con­
nection with Article 29 where the drafters chose to include the phrase "democratic 
society" instead of the USSR-sponsored phrase "democratic State" (see 7.1) . The tell­
ing choice between these two phrases resulted from a genuine desire on the part of 
the drafters to protect the individual against the abuse of power by the modern state, 
but it was at the same time influenced by the rhetoric of the Cold War. I focus on the 
latter cause. 
Without much opposition the Working Group of the Second Session had adopted 
the following sentence as part of what was then Article 2: "In the exercise of his rights 
and duties everyone is limited by the rights of others and by the just requirements of 
the democratic state."78 In the full Second Session the delegations from Uruguay and 
the United Kingdom sought to have the phrase "democratic state" removed but did 
not succeed. From there it was taken over by the Second Session of the Drafting Com­
mittee, until it ran into trouble in the Third Session of the Commission, which is when 
the Cold War started to make its impact felt more clearly. 
The joint United Kingdom-India proposal to the Third Session was very short 
and therefore very popular. It did not include the limitation based on the "require­
ments of the democratic state." A French proposal still contained the limitation of 
"the just laws of the democratic State." 74 Santa Cruz, the Chilean delegate, stirred up 
a hornet's nest when he expressed his preference for the U.K.-India text with a warn­
ing about Communist abuses to which the Geneva text might lead. "The notion of the 
just requirements of the democratic State varied from country to country," he said. 
"For example, Marxism aimed at the creation of a classless society in which the State 
as such no longer existed. This definition of its aims showed that its highest stage had 
not yet been achieved in countries like the USSR where a powerful State existed. The 
USSR Government considered that even in that intermediate stage it represented a 
democratic State." Also, "the organs of information, culture and the arts were con­
trolled by the party because the revolutionary conscience was the sole source of law." 
64 Ch•pter 2 
Santa Cruz, "for his part, could not imagine that dictatorship, even if temporary, 
could exist side by side with democracy." 711 
Pavlov responded at length. He began by pointing out that the 
notions of the State and democratic society were embodied in documents signed during the 
war. No difficulties then had appeared because the conception of democracy provided a com­
mon basis for every interpretation; there was thus no reason for rejecting it today . . . . In mod­
ern democracy the State was not a power imposed on society by force. It was the product of the 
society which had unfortunately in some [North Atlantic] cases detached itself from the society 
from which it had sprung and had come to dominate and oppress that society; the police State 
in fact came into being and was supported by the class which controlled its economy . . . . The 
advantage of the Soviet conception of the State was that it was democratic in a new sense of 
the word. It was supported by the immense m;yority of the people and was bound up with the 
defense of fundamental human rights. That was true democracy: the right to participate in gov­
ernment.?& 
He then quoted figures that showed the large numbers of people who were par­
ticipants in Soviet-style democracy. "Soviet popular democracy," he explained "was 
based on unity. The same characteristic was found in certain States in Eastern Europe. 
That unity had also been demonstrated by the Soviet people during the war . . . the 
heroism and the spirit of sacrifice of the Russian people had shown how much they 
valued the system. It was therefore a real democracy" (p. 8) . . "He observed that the 
struggle against Fascism had notbeen delayed until a definition of it was found, and 
for comparable reasons the representative of the USSR opposed the deletion of all 
mention of democracy in article 2 [29)" (p. 9). 
Cassin, whose delegation's text still contained the phrase "democratic state" ob­
served that the idea of the state "was much less important than that of democracy 
itself. The State was, in fact, a perishable product of society. . • . In this view the cri­
terion of democracy in any nation was the extent to which human rights were really 
respected. A State which did not respect them was not democratic, even if it claimed 
to be so; hence the supreme importance of the word, which must be retained" (p. 10). 
Lopez, the Philippine delegate, also was "not afraid of the word democracy. Such fears 
would not exist had not the Soviet Union been given the opportunity to appear as 
the only champion of democracy. The conceptions embodied in the Draft Declaration 
were all abstract ones, and if one of them were to be discarded for that reason, then 
they would all have to be discarded. He, for his part, would vote in favour of the text 
proposed by the Australian representative," which contained the phrase "democratic 
society" instead (p. 11) . 
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 under tbe terms ofthe..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 opponents 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 of justice 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 delegatesdiffered, 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, proposed 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 reluctantto 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 political, 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 freedom of the press or of free speech . Between Hitlerian racial propaganda and any 
other propaganda designed to stir up racial, national or religious hatred and incitement to war, 
there was but a short step. Freedom of the press and free speech could not serveas 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 imperialistic aggression. 
That was how German imperialists had attempted to justify by racial considerations their plan 
for destruction and pillage in Europe and Asia. (AC.l/SR.7jp. 9) 
For 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, 
the Commission adopted the · to be protected against such incitement. In other 
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