- - Thursday, December 10, 2020

Dec. 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR), rightfully heralded as a human rights landmark. To understand how the UDHR came about and what made it necessary, however, we need to first recall what preceded it.

The UDHR was born of the horrors of the Holocaust and World War II, as well as the imperfect attempt to achieve some sort of justice at the Nuremberg and Tokyo War Crimes trials. Recall, the defendants at Nuremberg and Tokyo had broken no positive laws — indeed, they controlled the power of the state, which dictated the laws. 

To dispense a modicum of justice to right the obvious injustice that had been done to millions of victims, Robert Jackson — a prosecutor at Nuremberg who took a leave of absence from his duties as a sitting associate justice of the U.S. Supreme Court — referenced the need to apply “a natural law that binds each man to refrain from acts so inherently wrong and injurious to others that he must know that they will be treated as criminal.” 

It is this notion of a law above whatever the positive law may be at a particular moment in time which likewise animates the UDHR. There are some rights which are so fundamental, that the state may never take them away, regardless of the power it may wield at any moment. 

We see this notion expressed, for example, in Article 26 of the UDHR, which states that “Parents have a prior right to choose the kind of education that shall be given to their children.” This is a right that is prior to the state — in other words, it is grounded in nature, and cannot be taken away by the state.



These are the rights which our Declaration of Independence referred to as “unalienable,” having been endowed upon us by our Creator. Foremost among these rights is of course the right to life, without which no other rights are possible.

This notion of Natural Law is certainly compatible with a Judeo-Christian tradition, one that directly inspired framers of the UDHR such as the Catholic Jacques Maritain, the Orthodox Charles Malik or the Jewish Rene Cassin.

But it is deeper and broader than that. It is not just Jeremiah and St. Paul who spoke about a law written in the heart, but Cicero and Confucius as well. 

As Emilie Kao, director of the Richard and Helen DeVos Center for Religion & Civil Society at the Heritage Foundation testified before Congress at a hearing Dec. 9, the UDHR drew from a diverse array of sources, “including Confucianism, Islam, Judaism, Hinduism and Christianity.” Indeed, along with Malik, Maritain and Cassin, included among its drafters was Peng-chun Chang, who drew from the Chinese philosophical tradition and contributed a Confucian Natural Law perspective — the tao that is written in the heart.

Thus, I categorically reject any notion that when we hold the government of the People’s Republic of China to account for its cruelty, abuses and violations of human rights norms, we are seeking to impose Western standards upon it.

Far from it — it is a universal norm, and one very much consonant with a Chinese notion of a tao, or a law, which is above any positive law arbitrarily imposed by the state. The actions of Xi Jinping and the Chinese Communist Party must be judged according to this law, and their mandate to govern — the Mandate of Heaven which the Confucians appealed to — depends on whether their actions conform with this norm. If they fall short, they are to be held to account.

Thus, when I speak of the barbarism of harvesting organs from Falun Gong practitioners or the cruelty of forced abortion and it deleterious impact on both women and children, or the incarceration of millions of Muslim Uighurs in concentration camps, or mass jailing of Hong Kong democracy activists including the brave Joshua Wong — unjustly jailed for the fourth time — or Xi Jinping’s megalomaniacal efforts to rewrite the Bible to follow the dictates of the Communist Party, I and others are only seeking to hold the Chinese dictatorship to the noblest standards from within the Chinese tradition.

Finally, as we contemplate that profound document that is the Universal Declaration of Human Rights, I ask that we also reflect on what is the source of the rights of which we speak. Rights emphatically do not come from the state, for, as we saw in the horrors of World War II and the Holocaust or the Armenian genocide, the state which is the sole grantor of rights can take them away, and in so doing, commit grave offenses against human dignity.

Rather, the source must be transcendent, objective, immutable.

• Chris Smith is a Republican U.S. representative from New Jersey.

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