‘What is this freedom of the individual? Is it merely a vague expression, a slogan to whip up the fighting spirit of the Allies, or a concept, varying somewhat as between peoples of different nations, but containing essentially similar elements?’Footnote 1 These were questions that William Draper Lewis, director of the American Law Institute (ALI), asked a group of ALI advisers in January 1944. Now, at their final meeting, these questions were mostly rhetorical; Lewis had made up his mind, as had most of the advisers. There was, he was convinced, a pre-existing notion of individuals’ rights, shared by the people of different nations. The task at hand was to agree on what essential human rights should be included in an international bill of rights.
More slowly than Lewis had hoped, but steadily and with a surge in political and popular interest from the 1970s onwards, an international bill of rights and the concept of ‘human rights’ became interwoven with the multitude of threads that make up the fabric of contemporary international relations.Footnote 2 Over the past seventy years, states have created and agreed to a diverse set of international and national instruments for the protection of ‘human rights’, and a multitude of non-governmental organizations have been founded to support such efforts. Human rights eventually caught the interest of historians as well. In the rapidly expanding body of literature on the history of human rights, some describe human rights as a moral, philosophical project with roots far back in history; others see human rights as a political or legal project of the mid twentieth century onwards.Footnote 3 The historian and legal scholar Samuel Moyn has recently challenged both interpretations, pointing out that human rights, as a powerful and transnational idea and movement, only originated in the 1970s. He is dismissive of popular, academic, and political interest in human rights during the 1940s.Footnote 4
The ALI project represents a particularly revealing vantage point from which to explore the origins of human rights concerns during the early to mid twentieth century.Footnote 5 From the beginning of the project, Lewis and his collaborators sought to create a globally acceptable bill of rights. They collected and translated rights from existing constitutions across the world, and sought inspiration from public statements and previous studies originating in Europe, Latin America, and the United States. They discussed lessons learned from past experiences of international cooperation, and the work of the International Labour Organization (ILO) was particularly central. More than thirty people took part in the project as formally appointed or associate advisers. All of them had prominent positions in academia, diplomacy, or non-governmental organizations. Several had worked for international institutions; some had contributed during the peace settlement that had followed the First World War.Footnote 6 The project inspired elaborate discussions on what constituted fundamental human rights, and how these rights could be enhanced at a supra-national level. After considerable efforts, the final document included a set of civil, political, social, and economic rights, each followed by interpretative comments. The ALI ‘Statement of essential human rights’ (henceforth the Statement) was the most elaborate code of human rights developed up to that time, in both scope and detail.Footnote 7 Along the way, the ALI advisers anticipated problems and considerations that would provoke discussions within the United Nations and elsewhere for years to come.
For these reasons, the ALI project warrants attention, when considering the origins and development of human rights ideas. This article explains why and how the ALI started developing an international bill of rights, who the main architects of the different parts of the Statement were, and what motivated and informed the advisers as the project evolved. The picture that emerges is one of a project situated in the United States, and dominated by American lawyers, but nevertheless shaped by ideas, events, and interactions reaching far beyond the United States. Without diminishing the significance of the surge in interest in human rights during the 1970s, this article supports the view that the human rights discourse of the 1940s was both thorough and systematic, and that it plaited past experiences and ideas into a platform from which the contemporary international human rights system evolved.
To win the peace
In July 1941, the Harvard professor of tort law, Warren E. Seavey, took the very first initiative of what would become the ALI ‘Project model international bill of rights’. Two years earlier, Germany had attacked Poland, and the Axis had recently attacked the Soviet Union. Even faced with such bleak prospects, Seavey pondered possible ways to secure future peace. He suggested to his friend William Draper Lewis that the ALI should contribute to winning the peace by formulating a statement of individuals’ rights. The peace of 1919 had failed, and, in his opinion, the fatal results of the controversy over the League of Nations in the United States could be explained by the ad hoc preparations of the American delegation. This time, he argued, thoroughly preparing a blueprint for a post-war international system was crucial. The ALI was ‘especially prepared’ to draft a ‘statement of the minimum individual rights to which a person should be entitled under any form of government’.Footnote 8
Lewis agreed: The ALI had the prestige and experience necessary for the task, and had hosted group discussions that involved lawyers as well as experts from the social sciences.Footnote 9 Established in 1923, it was a quintessentially elite organization, at the time consisting of 850 judges, practising lawyers, and law professors.Footnote 10 Its principal activity was to develop ‘restatements’ of American law, designed as authoritative interpretations of case law in the United States, as well as ‘model codes’ or draft laws that the ALI recommended to states and government agencies for adoption.Footnote 11 Both kinds of documents were developed by experts, and further moulded by the Institute's governing bodies. Drafting an international bill of rights was the Institute's first venture into the field of international law. It was a challenge because the ALI members, according to Lewis, were ‘more or less conservative lawyers with not much knowledge of world conditions’.Footnote 12 There were exceptions, for some ALI members were also members of the American Society of International Law, the American Bar Association's Section of Comparative and International Law, and similar associations and groups.
The ALI governing bodies reacted favourably to the proposal to draft an international bill of rights, initially called a project on ‘Civil and criminal justice’, signalling the bill's anticipated scope. The Executive Committee of the ALI Council discussed the proposal in August 1941, two weeks after Franklin D. Roosevelt and Winston Churchill had issued the eight-point joint proclamation of war and post-war aims known as the Atlantic Charter.Footnote 13 The document made clear that the Allies were fighting the war to oppose tyranny and oppression, and it contained references to economic and social progress, and to the rights of peoples to choose their own form of government.Footnote 14 It soon became a major point of reference for internationalist groups in the United States, including those who wanted protection of individual rights to be part of a post-war settlement.
In November 1941, the Executive Committee endorsed the further preparation of a ‘Minimum international bill of rights’ as one of two priorities that ‘the Institute might entertain as projects worthy of its best efforts’, to be discussed at the 1943 and 1944 ALI annual meetings.Footnote 15 Besides the idealistic motivation for taking on the project, the Executive Committee emphasized that the project could confirm the relevance of the ALI and attract funding. The ALI's income varied according to contributions by members and grants from foundations. The prospect of the Institute's termination loomed in the preparations for the coming annual meetings, which were considered to have ‘more than ordinary importance’, as they could furnish the ‘necessary impetus’ for the continued existence of the Institute.Footnote 16 The perception within the ALI that turning to post-war problems could secure its future relevance reflected the increasing support among American elites for a US leadership role in the future international order. The task, however, turned out to be both demanding and controversial.
To achieve a final endorsement by the ALI Council, Lewis had to find money to fund the project. On 6 December 1941, the day before the Japanese attack on Pearl Harbor, Lewis completed a formal statement for the Rockefeller Foundation.Footnote 17 Seavey had helped, as had William Sanders, the Chief Juridical Adviser to the Pan American Union.Footnote 18 The statement divided post-war problems into three groups: economic problems, problems of post-war organization, and ‘those that relate to the protection of the individual against arbitrary action by the state’. The statement also argued that the ALI was particularly well prepared for taking on the issue of an international bill of rights owing to its membership, prestige, and experience with developing statements of law by group discussions. It specified that the bill could be used in peace settlements or post-war arrangements, and mentioned the problem of minorities as an illustration of why recognizing the rights of the individual was so essential. Also, public education was needed. Educating lawyers through practical work on post-war planning, the statement argued, was an effective way to build a public opinion favourable to active United States participation in a new world organization.Footnote 19
The working title of the project, the ‘Project model international bill of rights’, gave a clear indication of its high, universalistic ambitions. According to the statement, the project would articulate rights that would be acceptable in ‘content and expression’ to those whose education had been in other than ‘the common law and constitutional systems of the English-speaking peoples’. Nevertheless, the document reflected its authors’ uncertainty regarding to whom this model bill of rights should be applicable. Silent on its relevance for colonial territories, the memorandum explained that the ‘next essential step in the progressive development of democracy’ was ‘the recognition that there can be expressed basic concepts of the rights of the individual … which each nation should recognize and maintain irrespective of the form of government, whether republican, monarchical, or totalitarian’.Footnote 20
The terms employed illustrate the daunting political dilemmas facing the ALI. The international bill of rights was intended to contribute to developing democracy, and yet, at the same time, be acceptable to any state, regardless of its form of government. The inconsistency was not due merely to the fact that this was an early draft. Throughout its existence, the project would be haunted by the question of whether living in a democracy was in fact among fundamental human rights.
The Rockefeller Foundation eventually decided not to support the project.Footnote 21 A likely reason for its refusal was its large contributions to the ALI's restatement on criminal justice and youth, which was not yet completed and was having financial problems in 1942.Footnote 22 In May 1942 the Carnegie Endowment for International Peace approved a grant of US$5,000.Footnote 23 The Commonwealth Fund donated the same amount.Footnote 24 This put ALI in a position to proceed with the project. The Executive Council, however, noted that additional funding would be needed to make it possible to extend the project beyond the US tradition to include ‘the constitutional legal concepts in relation to individual rights of non-English speaking nations’.Footnote 25 Some months later, the American Philosophical Society decided to donate US$5,000.Footnote 26 This was less than what Lewis had originally aimed for, but enough to embark on the task that he described as ‘perhaps the most important and intensely interesting work the Institute has yet undertaken’.Footnote 27
The advisers
In September 1942, seventeen persons were invited to serve as advisers to the ALI International Bill of Rights project. Each of them accepted. During the first stage of their work, which lasted from their first plenary conference in November 1942 to June 1943, five subcommittees drafted specific proposals, which were discussed by the advisers at plenary conferences, held in early March and mid June. The ALI Council and Annual Meeting discussed some of the key questions regarding the proposals that same spring. Frustration grew as the complexities of the task surfaced. Thus, in the autumn of 1943 a ‘Super subcommittee’ was appointed, to draw the different proposals together into one common document. Then, finally, the concluding plenary conference took place in early January 1944. From the first to the final conference, the project involved almost thirty persons.
American lawyers dominated the group of advisers. Manley Hudson, Harvard professor of international law and a judge in the Permanent Court of International Justice, had contributed to the drafting of the minority treaties following the First World War, and was organizing several post-war planning activities within the American legal community. Philip Jessup was a well-respected and widely connected international lawyer and diplomat. Noel T. Dowling and John E. Mulder were experts in American constitutional law. Warren Seavey taught law at Harvard University, had served as an adviser to the ALI for many years, and was considered an expert on China, where he had lectured in 1906. Rowland S. Morris was a professor of law, and had served as the US ambassador to Japan from 1917 to 1921. David Riesman Jr was an expert on labour law. The historian James Shotwell had a key role in the Carnegie Endowment for International Peace and had close ties to the Department of State. The Canadian Percy E. Corbett, of the Law Faculty of McGill University, had assisted Lewis in preparing the ALI bill of rights project since the middle of the summer of 1942.Footnote 28 In late 1942, American lawyer Charles E. Kenworthy was added to the group. Quincy Wright, a University of Chicago professor and leading internationalist, took part from May 1943.
The second largest category consisted of Europeans, most of whom had recently fled to the United States, owing to their Jewish backgrounds or political convictions. The jurist and diplomat Julio Alvarez del Vayo, from Spain, had represented the Spanish Republic in Mexico and the Soviet Union. Henri Laugier, from France, was a medical doctor and respected scientist. Ernst Rabel, from Austria, was a legal expert, currently employed by the ALI; Karl Loewenstein, from Germany, was an expert in comparative constitutional law;Footnote 29 Ludwik Racjhman, from Poland, was a medical doctor, formerly in charge of the League's Health Organization.Footnote 30 C. Wilfred Jenks, from Britain, was the Legal Adviser to the International Labour Office, which then operated out of Montreal. Three European jurists – Gerhart Husserl, George M. Wunderlich (both German), and Paul Weill (French) – joined the group before the second plenary conference. An Italian jurist, Angelo P. Sereni, took part in the final conference.Footnote 31
The initial group was less globally representative than Lewis had envisioned, for only two were born and raised outside North America or Europe: the diplomat, politician, and civil law expert Richard J. Alfaro, from Panama, and the philosopher and diplomat Hu Shih, from China. There was no Russian, so Lewis included Kenneth Durant, an American who headed the US branch of the Soviet news agency, TASS. Lewis made a further effort to expand the geographic diversity of the group, in preparation for the final plenary conference in January 1944. K. C. Mahindra, of the Indian Supply Mission in Washington, accepted an invitation to attend the final conference, and made a few written comments. George ‘Leo’ M. Barakat represented the ‘view and culture of Arabia’;Footnote 32 born and educated in America, Barakat had spent childhood years in Syria and Lebanon.Footnote 33
The project also had informal members. Lewis consulted regularly with William Sanders, of the Pan American Union, whose Inter-American Juridical Committee started preparing its own draft international bill of rights in the autumn of 1944.Footnote 34 Durward Sandifer, of the Department of State, was appointed as ‘observer’, connecting the ALI project with the parallel secret post-war planning work by the US government, which included drafting an international bill of rights.Footnote 35 ALI officials also kept an eye on the project, in particular its president, former Senator George Wharton Pepper, and Herbert F. Goodrich, an ALI Council member. Lewis hired two further lawyers, John R. Ellingston (American) and Lucie Krassa (Australian) to strengthen the coordination of the project, and to assist the subcommittee reporters. Krassa served as a secretary, while Ellingston quickly became Lewis’ closest collaborator, and signed the final report as an adviser.
The advisers’ motives for taking part varied. Even though their acceptance indicates sympathy for the project's central idea, this should not be interpreted as entailing a shared view on the post-war order, or the place of a future bill of rights. For some advisers, prestige and promise of intellectual stimulus may well have been sufficient to accept Lewis’ invitation. The advisers received honoraria, underlining the professional character of their appointment. Some, however, were probably already thinking along the lines of international protection of individuals’ rights. Jenks had extensive experience with the standard-setting activities of the ILO. He also had a vested interest in the result, as he and his ILO colleagues were currently searching for a formula that would ensure the future relevance of that organization. In New York in 1942, together with the civil liberty activist Roger N. Baldwin, Laugier had reconstituted the International League for the Rights of Man, originally formed in France in response to the Dreyfus affair.Footnote 36 Wright had advocated international protection of human rights since at least 1939, including through convening a conference under the auspices of the World Citizens Association in 1941.Footnote 37 Rajchman and del Vayo had participated at this conference.Footnote 38 Having personally experienced persecution by totalitarian states at first hand, many advisers were acutely aware of the need to better protect the rights of individuals. This was particularly true for the Jewish members of the group, who must have been deeply worried about the fate of their families and friends in Europe.
Some advisers took on large responsibilities, consulting regularly with Lewis. Others participated only at one conference.Footnote 39 Advisers were added as the project progressed, broadening the composition of the group, but latecomers generally added little to the final result. The core group consisted of well-educated Caucasian men. There were no female advisers at any stage of the project, although this did not cause much concern at the time. Apart from some members of the European contingent, those from groups suffering from different forms of discrimination played little part.
Collecting documents and identifying potential rights
Soon after Seavey's suggestion in 1941, Lewis began collecting and translating documents from as many geographically diverse sources as practicable. At the onset, he was largely ignorant of earlier efforts to enumerate individuals’ rights in international documents. From his position in the Pan American Union, Sanders furnished Lewis with a host of relevant documents. These included a declaration concerning the international rights of man, approved by the Institut de Droit International in 1929; a declaration considered by the Fourteenth Assembly of the League of Nations in 1933; and a Chilean draft resolution, which had been presented, but not voted upon, at the International Conference for the Maintenance of Peace in Buenos Aires in 1936. Sanders also informed Lewis of the 1928 petition by the French Académie Diplomatique Internationale to the League of Nations for a universal declaration of human rights, and the efforts by the International League for the Rights of Man, the World Citizens Association, and the Union of United Nations Associations, as well as individuals such as the British author H. G. Wells and the British jurist Norman de Mattos Benwich.Footnote 40 During the summer and autumn of 1942, Corbett helped to intensify these efforts, collecting statements by leading politicians, officials, and other prominent persons.Footnote 41
Lewis also collected excerpts of national constitutions. By December 1942, he asserted that he possessed translations of all the ‘individual rights in all the constitutions of the world’. Wilfred Jenks had provided texts of constitutional provisions with respect to economic and social policy of ‘practically all constitutions of the world’, which the International Labour Office had been collecting and translating for the previous two years.Footnote 42 William Sanders had provided a bulky collection of relevant parts of Latin American constitutions, with comments.Footnote 43 Thus, prior to the first roundtable conference in November 1942, the ALI advisers received a thoroughly prepared agenda and a collection of primary and secondary materials.Footnote 44 Throughout the project, these documents helped the advisers to judge the universal nature of specific rights, and to find proper ways of phrasing them.
The first plenary conference took place in early November 1942, at the time of three decisive developments in the war: the battle of El Alamain, the US landing in North Africa, and the battle of Stalingrad. With their minds fixed on drafting an international bill of rights, the advisers meandered between problems of both principled and specific character. Often, they ended up discussing specific problems arising from proposed formulations, so much so that it is difficult to delineate the more precise impact of developments in the war upon the deliberations of the advisers.
Whether the international bill of rights should be drafted with its future use in mind was far from obvious. The goal, Lewis had explained to the ALI Council, was not to engage in ‘an academic enterprise’ but to contribute to the actual manifestation of an international bill of rights.Footnote 45 This immediately, and inevitably, raised the issue of promulgation. The bill of rights could be prepared as a draft declaration, as a model code that states could adopt as domestic law, or as a draft of a legally binding international treaty. In Hudson's view, based on his long experience with the workings of international law, the form that was chosen would have a great impact on which rights should be included in the bill.Footnote 46 Lewis took care not to clarify this issue, probably to avoid long discussions over form at this early stage. Sandifer, however, reported to the Department of State that the ALI ‘definitively’ had in mind the creation of guarantees that should be treated as legal obligations.Footnote 47
A related question that arose was whether particularly controversial rights should be left out. On the one hand, Alfaro worried that some rights were essentially ‘aspirations of a political or social nature’, which could be in ‘unsolvable conflict’ with institutions and the state of public opinion in some countries.Footnote 48 Laugier, on the other hand, went furthest in separating the assessment of content from form by arguing that the group should simply state the rights, leaving the responsibility of finding practical ways to implement them to states.Footnote 49
Finally, there was the problem of enforcement, whether by government action, individual legal action, group action such as collective bargaining, or international action. Including provisions on enforcement in the bill, however, might lead the advisers into complicated discussions pertaining to post-war organization, which, Lewis pointed out, was currently being studied by other groups.Footnote 50 To keep the project moving forward, Lewis kept emphasizing to the advisers that they should focus on identifying which rights belonged to a universal statement of individuals’ rights. The problems of future use, however, kept surfacing over the course of the project.
When it came to the scope of the bill, the key problem was how far it should move beyond the Bill of Rights of the US Constitution. Preparing for the November 1942 conference, Lewis, Sanders, and Corbett worked on a categorization of the rights that should be studied. Lewis proposed a distinction between what he called ‘two classes’ of rights: those that were stated in the US federal constitution and ‘constitutions of other countries’ including those recently abrogated by the Nazi regime; and ‘other rights’ suggested by ‘present-day social and economic conditions’.Footnote 51 Sanders reformulated and incorporated the different classes of rights in the analytical terms of ‘positive’ and ‘negative’ rights. Negative rights, he explained, imposed limitations upon the state's freedom of action with respect to the individual. Positive rights placed responsibilities on the state in taking affirmative action to protect or further the welfare of the individual.Footnote 52
When Lewis drew up his final categorization of rights to be presented at the November 1942 conference, he settled for four groups. Under the heading ‘negative rights’, he listed the rights of freedom of religion; freedom of opinion; equal protection before the law; due process; non-discrimination; right to bear arms; prohibition of unreasonable searches and seizures; right of property; prohibition of excessive fines; and prohibition of cruel and unusual punishment. The heading ‘positive rights or social justice and economic security’ covered the right to work; fair pay; adequate food, clothing, shelter, and medical care; social security; a system of free enterprise; freedom of movement; equality before the law; education; and leisure. The heading ‘political rights’ included the right to vote; freedom of opinion (repeated under this heading); non-discrimination because of political opinion; right of assembly; right to petition government; right to hold public office. Under ‘other rights’, Lewis listed gender equality; freedom of communication; the right to travel; and immigration and emigration. The right to use any language was added to the list in handwriting, and therefore was probably not included in the initial list that the advisers received.Footnote 53
Lewis and his closest collaborators had different instincts as to whether all these rights should ultimately be included. As has been pointed out by several scholars, Seavey envisioned a bill limited to familiar personal and procedural rights. Such a bill of rights, he believed, would contribute to establishing friendly relations between states, and secure the rights of minorities. Corbett on the other hand, was initially more inclined towards expanding the scope of the bill. Lawyers should not, in Corbett's view, ‘loiter too far behind’ popular demand and official statements. He found that there was a widespread ‘popular urge’ for the realization of positive rights, as proclaimed in the Atlantic Charter and supported by an official recommendation by the National Resources Planning Board.Footnote 54 Lewis’ initial position is not wholly clear, but he seems to have believed that the bill would eventually be confined to the scope of the American system, possibly in more modern phrasing. He explained, for example, that a right might be ‘barred because it could not be adequately considered without extending the investigation into social and economic fields’.Footnote 55 Thus, from the start, the contours were evident of what later became the major controversies over the scope of the bill.Footnote 56
Drafting the personal, procedural, and protective rights
Agreeing on the familiar personal and procedural rights was the easiest step, although some rights proved more difficult to formulate than others. The advisers immediately agreed to exclude the right to bear arms from further consideration.Footnote 57 The role of missionaries, religious education of children, and application to non-citizens (‘aliens’) caused some discussion over freedom of religion, but there was no doubt that the right would ultimately be included.Footnote 58 Similarly, everyone agreed that freedom of speech belonged in a bill of rights, although agreeing on how to phrase it was quite difficult.
Procedural rights were discussed in a manner that revealed the long tradition such rights had in Europe and the United States, the challenge being primarily to reconcile different legal traditions.Footnote 59 The advisers agreed on what they considered universally accepted norms, while rules of procedure that were not considered fundamental were omitted.Footnote 60 The only issue that caused some disagreement was whether protection should also be extended to ‘juristic persons’, such as companies and associations. They agreed to include a statement regarding juristic persons in the comment, but not in the bill of rights itself.Footnote 61
The right to private property was more controversial. Rabel felt strongly for including it in some way, but Loewenstein was equally adamant in his opposition. Explicit protection of private property would, in his mind, make the bill of rights yet another ‘restatement of the liberal concepts of a bourgeois society’. Corbett took a more practical approach, arguing that property had no place in a universal bill of rights, as it would presuppose uniformity in political organization. Jenks agreed that the right to private property was not of the same importance as the rights to life and liberty, but thought that it should be discussed further.Footnote 62 Lewis later summed up this part of the debate by stating that the majority did not deem it desirable to include what were called ‘property rights’ in the United States.Footnote 63 The issue resurfaced later, and was the last one to be settled before the final report was sent to the ALI Council in early February 1944.
Protection for minorities, it had been argued, could make an international bill of rights a tool for securing durable peace.Footnote 64 None of the ALI advisers seemed to consider upholding existing minority treaties as a realistic option for the post-war period.Footnote 65 Only Hudson, however, was concerned that the bill should include group rights. In his opinion, if only individual rights were included, the bill would be ‘utterly negligible and insufficient for guiding states in dealing with racial, religious and linguistic minorities’.Footnote 66 The others preferred to deal only with rights of all individuals, reasoning that this would protect the rights of individuals belonging to a minority population. The right to use any language, for example, was discussed several times. Corbett found support for this in the 1929 statement by the Institute of International Law. Rabel, Hu, and Seavey, however, opposed including such a right, while Jenks proposed to discuss it in a subcommittee.Footnote 67 In the end, this right was not included in the final document.
Recognition of the right to emigrate and immigrate was particularly important for people from minority backgrounds. Few issues were more pressing and immediately relevant to the project at hand, particularly in relation to the refugee situation in Europe, and the Zionist vision of a Jewish homeland. News of the Nazi plans for a systematic extinction of Jews had reached the United States three months before the ALI conference, and the Jewish press in the United States was reporting on the disaster playing out in Europe, even though the extermination plan was not disclosed until few weeks later.Footnote 68 Including the rights to migrate, however, was expected to be highly controversial in many states, including the United States. Rabel was a vigorous advocate for the right to leave a country, and to take your property with you. Jenks argued against such a right. The favoured policy among the specialists on migration was, in his experience, moving away from immigration towards ‘the conception of cooperative international organization to organize and finance settlement in unsettled areas’. He therefore suggested abandoning the idea of a right to immigration. Loewenstein similarly suggested keeping an open mind towards the possibility of transfer of populations on a grand scale.Footnote 69 Neither the right to emigrate nor the right to immigrate made it to the final document.
Furthermore, a non-discrimination principle would potentially be relevant to minority populations. Several subcommittees proposed formulations that prohibited discrimination or demanded equal treatment, some of them enumerating particular grounds for discrimination. Technically, the bill could have had a general non-discrimination clause, or could have included such principles in the substantive provisions. It could also have been included in the interpretative comments. The advantages and disadvantages of these methods were discussed at great length. The main problem, however, was the risk of provoking different constituencies by including politically controversial rights.
This risk was imminent, many advisers believed, if women were mentioned explicitly. Many states did not grant women the right to vote, or to be elected to public office. To circumvent this problem, Lowenstein suggested interpreting the proposed provision on universal suffrage as one that prohibited arbitrary discrimination. Latin American practices of not granting voting rights to women pertained to all women. This was therefore not arbitrary discrimination, he argued, and would not constitute a break with the principle of universal suffrage.Footnote 70 More often than not, however, the advisers avoided discussing rights of women. When they were discussed, the American advisers often pointed out that it would be hard to garner the necessary support in the United States for a bill of rights that did not protect women's rights in some way, especially the rights to vote and to take part in government.
Similarly, although Lewis pointed out many instances of racial discrimination, such concerns did not take up much of the advisers’ time. For example, they considered allowing states to grant voting rights only to persons who were considered qualified to vote. To this, Lewis answered that educational qualifications could be undemocratic in India and China. Loewenstein replied that it was clear that the provision could not extend to ‘backward areas’, and that he relied on public opinion to force the expansion of the suffrage.Footnote 71 Wright later suggested phrasing the article so that the right to vote and participate in government was conditional upon ‘reasonable qualifications established by law’. Seavey found this to be an important reminder of the fact that, while all other rights were universal, this particular right could only be enjoyed by citizens ‘passing a literacy test and so on’. This view seemed to be accepted.Footnote 72 The general acceptance of required qualifications for participating in a representative government confirms the dominant elitist perspective of these advisers. Furthermore, through framing the problem as relevant only to the global acceptance of the bill, they effectively bypassed the issue of voting rights in the American South. This revealed that, in the opinion of most of the advisers, racism in American was not a problem that this international bill of rights should target, at least not more than incidentally.Footnote 73
A catechism of constitutional democracy?
Whether or not living in a democracy was a fundamental human right turned out to be one of the two most difficult problems to resolve. From the very beginning of the ALI project, Loewenstein argued that the international bill of rights should contain minimum standards of governmental structure.Footnote 74 Seavey believed that the bill of rights should be applicable to all states, regardless of government system. In line with Seavey's view, the December 1941 memorandum prepared for the Rockefeller Foundation exemplified forms of government to be ‘republican, monarchical, or totalitarian’.Footnote 75 Thus, where Loewenstein saw democratic government as the precondition for the protection of individual rights, Seavey believed that, if the rights enumerated in the bill were respected, individuals could be protected, regardless of government structures.Footnote 76 Seavey believed it was possible to reconcile a totalitarian government with protection of rights such as integrity of life and due process. Loewenstein vigorously opposed this view, and Julio A. del Vayo and other European advisers supported him.
Loewenstein combined his wide knowledge of constitutions of many countries with a deep commitment towards protecting democracies from the dangers posed by fascism and Nazism. By serving as the reporter for the subcommittee on political rights, of which Alfaro and Mulder were members, Loewenstein had ample opportunity to frame the advisers’ discussions on this point.Footnote 77 The committee's report was given the telling title ‘Bill on political rights’. According to the report, the main rationale for the international bill of rights should be to protect constitutional democracy as a form of government. The bill should be nothing less than a ‘catechism’ of political democracy. Political rights should be the bill's opening rights. They should include freedom of expression, alongside the rights to assemble peacefully for political purposes; to organize and participate in the activities of political organizations; to participate in government by voting in elections and express opinions through other instruments to determine the popular will; to be a candidate for elective and appointed positions; to petition government for redress; to have conflicts adjudged by independent courts; to be protected against deprivation of nationality; to be admitted as a citizen if proven loyal during a period of residence.Footnote 78 This programme was more extensive than most of the advisers were ready to support.
Demanding a democratic form of government was in obvious tension with the desire to adopt a universally acceptable bill. Most of the advisers saw free elections as the minimum requirement for democratic government, but should it be constructed as an individual right? Jenks immediately raised the question of ‘undeveloped areas’, and the discussion revealed that the advisers deemed many of the proposed rights to be unattainable or inapplicable to ‘some areas of Asia and Africa’. Hence, Jenks suggested including a paragraph stating the desirability of a progressive development of democracy in ‘undeveloped areas’.Footnote 79 Wright argued that there were alternative ways to organize democracy, and pointed out how Chinese communities had long practised government by village elders, responsible to the will of the people, and, by doing so, maintained ‘truly democratic government’ without elections. Jenks and Loewenstein, however, argued that free elections were vital to the repressed people of Europe.Footnote 80
The argument with greatest traction against demanding a democratic form of government was the concern for the bill's future acceptance by the Soviet Union.Footnote 81 In the United States there were strong anti-communist sentiments, but the threat to liberty posed by communism appeared in the short run as only a theoretical one, and many liberal and left-wing Americans viewed Soviet communism in a rather positive manner. Reflecting this, Roosevelt had long pursued a conciliatory policy towards the Soviet Union, even after the 1939 Nazi–Soviet pact, the Soviet occupation of eastern Poland, and the November 1939 Soviet attack on Finland. Hitler's invasion of Russia in June 1941 had caused the Soviet Union to become an essential contributor in the war against the Axis powers.Footnote 82 Its representatives could therefore be expected to play a key role in the anticipated post-war settlement.
Even if the right to live in a political democracy was not included, the bill could contain rights that were closely tied to the aim of preserving a functioning democracy. Freedom of speech, categorized in the project as a personal right, proved particularly hard to draft. If it should be limited in any way, was this to protect the rights of individuals or the democratic state? Should limits be placed in all relevant articles, or in a general limitations clause? The discussions focused on what could be learned from recent European experiences. About half of the advisers, Lewis asserted, were inclined to limit freedom of speech by sharply curbing the right to advocate Nazi ideas.Footnote 83 Hu, however, vigorously defended an unlimited right to free speech. Freedom of opinion had a long Chinese history, he argued, and in his view any contrary opinions, including fascism, should be allowed.Footnote 84 Many of the Americans tended to agree with Hu. Lewis, for example, pointed out that placing limitations in the articles of the bill of rights would constitute a departure from the American tradition, probably having in mind the likely reactions among ALI members towards such provisions.Footnote 85 Loewenstein, as expected, made clear that he wanted to include limitations to protect democratic states. There was some support for the overall objective of protecting democracy, and Wright saw this as a contribution to the preservation of peace. Corbett and Hu opposed the inclusion of limitations in any form, a suggestion that Loewenstein found to be dangerous, because it could make states hesitant towards enacting laws against Nazis. The majority of the group, however, seemed inclined to state limitations in the form of protecting the rights of other individuals, rather than the state.Footnote 86
Related to this point was the problem of ‘aliens’. Once in a country where they were not citizens, what rights, if any, should such persons enjoy? On this issue, the interests of states could not easily be aligned with the interests of the large and rapidly expanding number of stateless people and people of multiple nationalities. Aliens posed special problems, the advisers assumed, with regard to political rights. States might have legitimate reasons for protecting themselves against subversive activities, and non-nationals were likely carriers of ideas foreign to their new country, and in some instances served as agents for other states.Footnote 87 Jenks, however, pointed out how not prohibiting discrimination on the basis of nationality might deprive aliens of a livelihood. But the advisers seemed to agree that not allowing aliens to work in armaments industries had to be acceptable.Footnote 88
The scope of, and potential limits to, political rights were divisive throughout. As early as after the first plenary meeting, Lewis reported to the Executive Council that there were ‘considerable differences in opinion’ as to whether ‘any attempt’ should be made to include such rights as the right to vote or the right to participate in government.Footnote 89 After the third conference of the advisers, the minutes referred to an agreement on including an article on the right to participate in government and a right to vote, with only Corbett and Seavey opposing the inclusion of political rights in any form.Footnote 90 The central importance of Loewenstein became clear when the Special Subcommittee met in August 1943, without him present. The committee removed all explicit references to democracy in the draft bill.Footnote 91 Loewenstein succeeded, however, in reinserting several such references in the final document.
Social rights or social policy, or no such rights at all
In the preparatory material, Lewis had asked whether the bill should only include negative rights or also positive rights, and, if so, which rights these should be. The latter set of rights would, in Lewis’ opinion, extend beyond the United States constitution by requiring affirmative action by states, and by ‘involving perhaps a program of social planning’.Footnote 92
Jenks quickly assumed the role as key advocate and expert on social rights. Issues of social policy could not, in his opinion, be regarded as non-existent. Many state constitutions in Latin America and Europe, as well as those of the Soviet Union and China, proclaimed social policy goals. Despite being objectives of policy rather than rights enforceable by courts, such rights had to be discussed in relation to the drafting of a bill of rights. The aim, he argued, should not be to create legally enforceable rights. Rather, the essential goal had to be to create machinery for a general social security programme. A bill of rights could give ‘general stimulus to thought in the world’.Footnote 93 In addition to Jenks, Loewenstein was a vigorous supporter of including social rights, but he believed that these should be cast as legal rights. The world, in his opinion, was witnessing the ‘dawn of the social era’. A modern bill of rights should enjoin an ‘advanced program of social reform’. The common man was only interested in rights that affected him, not rights such as the freedom of the press.Footnote 94 Riesman, del Vayo, and Laugier also expressed support for including social and economic rights in some way, but Seavey opposed this. Still others pointed out different challenges connected with including social rights. Rabel suggested that a possible solution could be to draft two documents: a familiar bill of rights in the legal sense, along the lines of the United States constitution, and a ‘proclamation of social ideas’.Footnote 95 The tensions created by differences in approach frustrated the advisers. Laugier stated that if it was simply a question of collecting the laws that already existed, ‘three lawyers in a box’ could do this. Rabel suggested that Laugier should be in charge of the job, saying, ‘I cannot work out rules for a time which is not here’.Footnote 96
The distinction between policy and rights, as suggested by Jenks, appealed to many advisers. Hudson, however, still saw problems. He found it difficult to state these as rights ‘so it will not be illusory and not give false hopes’. In his opinion, experiences with international labour conventions showed that practical implementation on the international level was problematic, owing to a lack of sanctions against those who did not comply.Footnote 97 The ALI president, Pepper, however, nevertheless encouraged the advisers to study social rights, adding that ‘nothing short of the kind of document envisioned by Mr. Loewenstein and Mr. Jenks would satisfy the Institute’. The task would be difficult, he admitted, especially as the history of American constitutional law provided no guidance as to how this could be done.Footnote 98
Despite such proclamations, there was no doubt that the advisers had identified a major challenge for their project. Sanders reflected to Lewis that their discussions revealed the same difficulties over social justice rights as had the previous discussions by the World Citizens Association.Footnote 99 Seavey grew alarmed. Writing to Lewis, he warned that the suggestions put forward by ‘Mr. Lowenstein and others’ would ‘destroy whatever value there is in making this attempt’, by giving isolationists an opportunity to discredit the objects of the bill. Any public statement with such rights included would ‘harm the entire undertaking’.Footnote 100 Lewis, however, downplayed the controversy. Reporting to the Executive Council, he explained that a majority wanted to include social rights such as the rights to employment and a minimum wage, but that a major hurdle was whether it was ‘practicable’ to include such rights.Footnote 101
Jenks served as reporter for the social rights subcommittee, assisted by Laugier, Corbett, and Hudson. After several meetings, they agreed on a final report. They began by alluding to the 1942 Declaration by the United Nations, the initial declaration of a military alliance among the anti-Axis allies in the wake of Pearl Harbor, which had referred specifically to human rights and the Atlantic Charter. This declaration, the committee asserted, promised ‘the protection of all men in all lands from fear and want’.Footnote 102 The methods to achieve this objective, however, were not obvious. While working on the report, Corbett wrote to Lewis that he had realized that the committee as a whole was probably not prepared to back these as legally enforceable rights, except perhaps for a right of association. His personal view had been ‘considerably clarified’ during the process, and he now believed that most of these rights ‘would be dealt with best as in a statement of objectives rather than rights’.Footnote 103
The first four pages of the report discussed the legal form of the bill of rights, and of social rights in particular. Hudson was alone in arguing that the subject issues were inseparable from the issue of promulgation. The majority took the view that the bill could include rights that concerned social policy, and therefore would not become ‘susceptible of enforcement by legal process’ alone, but only when accompanied by implementing international agreements and national legislation and regulations. Issues of social policy were thus formulated as declarations of principles. Informed by experiences with the ILO Constitution, the majority found that this approach had previously been successful in encouraging states to enact social legislation and formulate principles of social and economic policy in their national constitutions.
The committee proposed to include the rights to education, employment, fair pay, social security, leisure, and labour organizations. It also included an article prohibiting discrimination on the grounds of nationality, race, religion, or sex. The report included a formulation of a right to emigrate, but the committee advised against its adoption. The rights were accompanied by state duties, and the international obligation was limited to the enactment of implementing legislation and to cooperation with appropriate international agencies. The comment, written by Jenks, pointed to the ILO as the leading international agency in this field.Footnote 104
The advisers spent almost two full days during their second plenary conference on the report by the subcommittee on social rights. The aim and legal form of the document were controversial. Seavey, trying to dissuade the proponents of social rights, asked whether a country that objected to that part of the bill of rights would be excluded from participating in the general international organization. Corbett explained that the committee had interpreted its task as exploratory, while Jenks stressed that the committee ‘hoped that the provisions would be accepted as imposing obligations’ and not turn into ‘a mere Declaration of policy’. The committee had, as referred to above, suggested that states should bind themselves to enact social legislation and to cooperate with international agencies.Footnote 105
The discussions became more conciliatory and constructive when the group turned to specific rights, and even Seavey agreed that the right to work was one of the inalienable rights of man. Seavey and Rabel suggested excluding the right to ‘fair pay’, and Seavey also opposed the proposed right to clothing, shelter, and food.Footnote 106 The advisers furthermore engaged in a discussion of the special challenges for federal states. Jenks suggested that there were two principal ways to deal with this: either they would exclude all issues unacceptable to federal states, or they would include a separate provision on federal states. He preferred the latter option.Footnote 107
The 1943 ALI annual meeting further exposed the controversial nature of social rights. According to Sandifer, the general sentiment at the meeting had been ‘skepticism as to the desirability and feasibility of including social rights’ in the ‘elaborate form of the subcommittee's report’. In addition, a ‘sharp division of opinion’ had developed regarding the extension of freedom of speech to those who intended to use it to destroy liberty.Footnote 108 Seavey grew increasingly frustrated. To Lewis he could hardly have been more blunt, writing to him in January 1944: ‘[I]t is a perversion of language to speak about social security as making men free. It makes them at the same time dependents and unwilling contributors.’ In his opinion, the ALI should not approve the bill.Footnote 109 Lewis, probably realizing that this controversy now threatened the project and could damage the ALI, pre-empted this problem by asking for the Council's approval for circulating the Statement, rather than seeking its endorsement of it.
Concluding remarks
When the advisers presented the result of their deliberations to the ALI Council, it was in the form of a ‘Statement of essential human rights’, which comprised eighteen short articles. The Statement included rights from all the categories identified during the course of the project. It opened with a preamble, followed by the freedoms of religion, opinion, speech, assembly, and association, freedom from wrongful interference, the right to a fair trial, freedom from arbitrary arrest, prohibition of retroactive laws, and the rights to property, education, work, reasonable conditions of employment, food and housing, social security, participation in government, and equal protection against arbitrary discrimination. The duty of the state to provide these rights was expressed in each article, and the final article was a general limitation clause, stating that each right was limited by the rights of others and ‘by the just requirements of a democratic state’. Each comment, with the exception of the one regarding property, opened with a statement of the status of the right in ‘current and recent (pre-Nazi) constitutions’.Footnote 110
Compared to other drafts, the Statement was the most elaborate version of an international bill of rights created till that point, in both scope and detail. The advisers were well aware that they proposed to expand the scope of generally accepted constitutional guarantees of individual rights. In the comments on the specific rights, they noted, for example, that the right to work was only found in nine constitutions; conditions of work in eighteen; food in none; housing in eleven; and social security in twenty-seven. The right to education was by far the most accepted social right, being found in forty constitutions. Twenty-three advisers signed the report.Footnote 111 Seavey wrote a dissenting caveat on social rights.Footnote 112 Hudson asked that it be noted in the report that he was ‘dubious about the drafting in many places’.Footnote 113 Rajchman wanted an asterisk to be placed by his name to indicate similar objections to Hudson's, but Lewis pleaded with him not to insist.Footnote 114 Durant, Husserl, Jessup, and Shotwell did not sign the report. Husserl explained that he felt that the Statement did not go far enough ‘in an era of World Revolution’.Footnote 115 Durant's reasons are not known. Jessup and Shotwell had both prioritized other issues connected to the post-war settlement, had only participated at the first plenary conference, and had not provided comments as the work progressed.Footnote 116
Seen through the lens of the ALI international bill of rights project, there is no doubt that a human rights discourse had emerged before the Second World War. Many states already had rights provisions in their constitutions. International instruments and declarations pertaining to the rights of individuals had been discussed on various occasions. Some had been adopted, and a few of these had some kind of enforcement mechanism attached to them. International lawyers had for some time pondered whether to pursue a future international statement of the rights of individuals, and if so how. This was, of course, an underdeveloped discourse as compared to the one that emerged during the 1970s. No significant international instruments had yet been adopted with the explicit aim of protecting ‘human rights’, and, as Moyn has pointed out, no international movement or influential national non-governmental organization had been established exclusively to promote human rights. For most, if not for all, state leaders who at some point spoke of rights of individuals, this was a rhetorical exercise, more than a specific vision of supra-national protection of human rights. However, the many documents collected for the ALI project show that there was already an ongoing transnational conversation on the rights of individuals. This conversation took place within different states, including some outside the West, and in different international and transnational contexts, including within networks of international lawyers and other intellectuals.
The United States became the hub of this conversation during the Second World War. The discourse on the rights of individuals evolved dramatically as different groups found the proposal of adopting an international bill of rights to be well worth developing as a possible contribution to creating a lasting peace. In the ALI project, American legal scholars dominated, but others weighed in. The globally representative character of its group of advisers has sometimes been exaggerated, and Latin American contributions to the project have been overstated. It is, for example, Wilfred Jenks of the ILO who should be credited with the crucial contribution of convincing the ALI advisers to include social rights in their final report. He was not alone in promoting social rights, but he played a pivotal role in drafting and promoting these clauses.
Furthermore, the ALI project refutes the view, taken by some scholars, that, since the pictures from the liberation of European concentration camps reached the delegations to the San Francisco Conference after important decisions on human rights had been taken, the Holocaust cannot explain the inclusion of human rights in the United Nations Charter. The papers of the ALI project reveal that human rights entered discussions over post-war peace owing to concern over the breakdown of personal security and liberty within totalitarian states. This affected the lives of minorities, Jews in particular, but also populations in general. Most dramatically, even though the full extent of Hitler's attempt at exterminating the Jews was not yet known, their situation informed and shaped the ALI project in different ways, in particular through the contributions of advisers from Jewish backgrounds.
Finally, the ALI project archive reveals the rights that did not make it into the final Statement, and those that were formulated with great caution. In essence, the ALI project aimed at taming states. As the project moved along, the majority added to this rationale the desire to promote human welfare. The advisers discussed in great detail what rights could be considered to be fundamental human rights; how such rights were protected in different states; whether rights should have the form of limits on state power or should also entail positive requirements for state action to protect or secure these rights; and the potential for, and limits to, international action. In attempting to draw up a bill of rights that could be adopted as part of the post-war settlement, the advisers discovered tensions that would trouble later attempts at arriving at a globally acceptable international bill of rights. They completed their assigned task, though in a somewhat modified form, as a statement rather than a draft bill of rights. Along the way, they discussed how notions of rights varied across nations and cultures. Partly to accommodate these differences, they were willing to compromise with the rights of women, and they avoided including rights of minorities, and the controversial rights to emigrate and immigrate. Race was mentioned in the equal protection clause, and, although some of the American advisers were attentive to racial discrimination, the advisers generally did not perceive this bill of rights as an instrument that aimed to end racial discrimination.
The document that they completed was the most elaborate draft up to that point, and it became a key source of inspiration for the drafters of the 1948 Universal Declaration of Human Rights.Footnote 117 Its greatest contribution to the human rights discourse was possibly the controversial decision to incorporate several social and economic rights. The Statement was, however, but one contribution to the twentieth conversation over human rights. The project itself identified a host of existing documents from various sources. Other groups and organizations contributed alternative visions, some advocating the rights of women and principles of racial equality. When the UN Commission on Human Rights started drafting its international bill of rights, it did not enter unchartered terrain. There was already a wide-ranging and probing transnational conversation over what were essential human rights, to which the ALI project had contributed significantly.
Hanne Hagtvedt Vik is a postdoctoral researcher at the University of Oslo. From 2011 to 2012 she was a Research Fellow with the International Security Program of the Belfer Center for Science and International Affairs, Harvard Kennedy School.
