UDHR - History of human rights

THE CREATION OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
by Peter Bailey
OBE AM

In less than half a century, the Universal Declaration of Human Rights (the UDHR) has come to be regarded as possibly the single most important document created in the twentieth century and as the accepted world standard for human rights. The UDHR draws life-preserving messages from the past, and is seen as an essential foundation for building a world in which all human beings can, in the centuries to come, look forward to living in dignity and peace.

A CRITICAL HISTORICAL MOMENT

As the second World War began to close, the world climate was ready for a great leap forward in the recognition and observance of human rights. When representatives of the four major powers met in 1944 at Dumbarton Oaks, a stately mansion in Georgetown, Washington DC, two world wars had been fought in less than 30 years, and cruelty almost beyond belief had been inflicted on members of the Jewish race in Europe and on prisoners of war in detention in Asia and Europe. An atomic bomb was about to be set off that would show what enormous destructive power humankind could unleash in targeting nations as well as individuals, often simply because they were members of a particular race or religion.

The leaders felt there must be a better way for the nations and peoples of the world to live together and sort out their problems and laid plans for establishing what was to become the United Nations.

In late 1945, leaders of the world's nations met in San Francisco to form the United Nations. Inspired by the great South African pre-apartheid leader Field-Marshall Smuts, they included in the preamble to the Charter of the UN, an important reference to human rights. (A preamble is an important introductory section of a legal document, and explains the background to it rather than being part of its operative provisions.) The relevant part of the preamble said:

"We the peoples of the United Nations [are] determined -

.. to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small".

This reference to human rights, was followed up by six references throughout the UN Charter's operative provisions to human rights and fundamental freedoms. In addition, largely as a result of pressure brought to bear on the political leaders by some 42 United States non-government organisations, Article 68 was included. It required the Economic and Social Council to set up commissions in the human rights and economic and social fields. The outcome was the establishment of a Commission on Human Rights. Thus the Commission is one of the very few bodies to draw its authority directly from the Charter of the United Nations.

PRODUCING THE FRAMEWORK FOR THE INTERNATIONAL BILL OF RIGHTS

In April 1946, Mrs Eleanor Roosevelt, widow of President Franklin Roosevelt of the United States was appointed to chair an interim group of 9 members. By June the interim body had suggested that the new Commission should make its first task the development as soon as possible of an international bill of human rights.

Later in the year, the new Commission of Human Rights of 18 members, again chaired by Mrs Eleanor Roosevelt, was appointed, and included China's P.C.Chang, Frenchmen Rene Cassin and Dr Charles Malik of Lebanon. The Commission met for the first time in January 1947 and considered several critical issues. Its decisions have greatly influenced the human rights development since then, including action at national level. It concluded that it should work to develop first a declaration rather than a treaty. (An international declaration is a statement of importance, and has high moral and often political significance, and is more than a recommendation, but it is less than a treaty, which is binding in international law.) Perhaps most important of all, it decided that the declaration should contain both civil and political and also economic and social rights.

The Commission's view was that the declaration should be a relatively short, inspirational and energising document usable by common people. It should be the foundation and central document for the remainder of an international bill of human rights. It thus avoided the more difficult problems that had to be addressed when the binding treaty came up for consideration - just what role the state should have in enforcing the rights in its territory, and whether the mode of enforcing civil and political rights should be different from that for economic and social rights.

It was fortunate that the Commission made the decision to separate the formally legally binding covenant from the initial declaration. Although the declaration was endorsed in December 1948, the two covenants (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) that emerged to define the obligations of each state were not ready for ratification (formal approval by the governments of the world) until 1966, some 18 years later.

AN INSPIRATIONAL DOCUMENT

The Commission then turned to formulating the declaration. It decided to name it the Universal Declaration of Human Rights (UDHR). The very name emphasises the UDHR was to set a standard of rights for all people everywhere - whether male or female, black or white, communist or capitalist, victor or vanquished, rich or poor, for members of a majority or a minority in the community. In the words of the first preamble to the UDHR, it was to reflect

"recognition of the inherent dignity and .. equal and inalienable rights of all members of the human family "... and through that recognition provide "the foundation of freedom, justice and peace in the world".

Article 1 reflects the inspirational nature of the project. It was included only after much controversy about whether it was just stating the obvious, or whether it should be included in the preamble rather than the main text. It proclaims in ringing terms that

"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood".

The reason for including it in the main text is to state firmly the basis of all human rights, the rationality of human persons and their obligation to deal fairly with everyone else, regardless of race, sex, wealth and so on. Article 7 follows up this theme by saying that all are to be equal before the law and have a right to protection against any form of discrimination.

Articles 3 and 27 are probably the core of the substantive provisions in the Declaration. They give every human being the rights to life, to liberty, to security of person (Art 3) and to an adequate standard of living (Art 27). The first three are core civil and political rights, the last an economic and social right. The right to an adequate standard of living is interesting in that it specifies as part of it the right to health and well-being not only of a person but of his or her family, and also the right to necessary food, clothing, housing and medical care, and the right to social security (also covered in Art 22).

Overarching all the particular rights are Articles 28 and 29. (There are 30 Articles in the Declaration, of which 17 could be regarded as relating to civil and political rights and 8 to economic and social rights). Articles 28 and 29 have not received much discussion, and have not been given legally binding force in the two Covenants. But they are explosive in their significance. Article 28 emphasises the responsibility of the whole international community for seeking and putting into place arrangements of both a civil and political and an economic and social kind that allow for the full realisation of human rights. It would be easy to ask questions about current arrangements or plans that hardly seem to do this, such as those relating to trade and investment arrangements and perhaps some of those planning to eradicate international crimes such as genocide and war crimes.

Article 30 is also of high importance, because it underlines the responsibility all people have to their community. Notice that the Article does not talk about the state. There is danger in claiming, as so many dictators and even democratic leaders have claimed, that people owe duties of an inalienable kind to the state. They do not. But they do have obligations to their fellow human beings, as Article 1 also emphasises.

Perhaps, looking back at the UDHR after half a century, the only significant lack is in the area of the environment. It can however be implied from rights such as the right to life and to an adequate standard of living.

Tribute should be played to three different groups. Firstly, to Eleanor Roosevelt and her advisers, mainly from the US Department of State. Somehow, she was able to maintain a generally harmonious atmosphere during virtually the whole of the long meeting phase. Second, to the many prominent people who provided drafts to the Committee for its consideration. These included noted international lawyer, Professor Hersch Lauterpacht of Cambridge University, and British author H G Wells. There was also a draft based on work done in preparation for an American Declaration of the Rights and Duties of Man. Finally, there was the enormous work done by the secretariat, led by Professor J P Humphrey, that brought all this material together for the Commission to consider.

When the Commission finally took its vote on 18 June 1948, twelve of its fifteen members voted in favour. The Soviet Union, Byelorussia, the Ukraine and Yugoslavia (the Soviet bloc technically had only two members) abstained.

The draft then went to the Economic and Social Council, which did not change the text but arranged for it to go to the Third Committee of the UN General Assembly, where it struck difficulties. It was fortunate that the Committee's chairman at the time was Charles Malik. After no less than 81 long meetings, at which at least 168 amending resolutions were considered, the Committee, on 6 December 1948, at last reached agreement - just in time to be taken by the General Assembly before it concluded its meeting for the year.

On the evening of 10 December 1948, the General Assembly endorsed the text of the UDHR without amendment, only two days before it rose until the next year. There were no dissenting votes, but the six communist countries then members of the UN, and also Saudi Arabia and South Africa, abstained. The Assembly, in an rare gesture of appreciation, gave Mrs Roosevelt a standing ovation.

THE GROWING STATURE OF THE UDHR

So, just ahead of the advent of the Cold War and the consequent slowing down of many constructive developments, the Universal Declaration managed to emerge successfully from the complex and politically hazardous processes of the United Nations to become its human rights flagship. The Declaration had not managed at that time to achieve full recognition from the communist and certain middle eastern countries, but at least they had not voted against it.

Notwithstanding the initial difficulties and resistance, the Declaration has probably achieved a stature in the world that even the most optimistic of its founders in 1948 would not have expected. First, it has become accepted (often rather reluctantly, it is true) as an influential statement of standards, even by countries that are doubtful about the wholehuman rights enterprise. When countries such as Burma, Argentina, China and the former Yugoslavia feel bound to defend themselves when they are accused of being in breach of the UDHR, then it can be said to have achieved an important political and moral status.

Equally important, the UDHR has become almost an extension of the UN Charter. Although, the Charter has only a few articles that refer to human rights and fundamental freedoms, it is now usual to refer to the UDHR as setting out the content of those rights and freedoms. So it has become a part of the fabric of the UN itself, and is often referred to in resolutions of the UN General Assembly, and in its debates, for example in relation to the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960. At the human rights conference in Teheran in 1978, to mark the 30th anniversary of the UDHR, the representatives of 84 nations unanimously declared that the UDHR states a common understanding of the inalienable rights of all people and constitutes an obligation for the members of the international community.

Third, most if not all the provisions of the UDHR have almost certainly become a part of international customary law. The view is steadily growing among international lawyers that practice (always an important source of international law) includes not only acts such as observing rules about navigation at sea but also acts such as voting for resolutions at United Nations and other international gatherings. The very large and increasing number of ratifications of the two human rights Covenants, and the fact that the rights stated in the UDHR are commonly recognised as well founded in moral and good practice terms, means that there are now virtually unchallengeable grounds for asserting that the UDHR rights have become part of international customary law. That means that, unlike treaties, which only bind a country once it has accepted the treaty obligations, all countries in the world are bound, whatever their particular view may be. A country cannot repudiate international customary law, as it can a treaty obligation.

For these three reasons, those who boldly moved to form and then approve the provisions of the UDHR have left an abiding legacy for humankind that will rank with the great religious contributions of past centuries. The UDHR is an increasingly powerful instrument for the achievement of human dignity and peace for all.