Development of International Human Rights Law Before and After the UDHR

Chapter 1
Development of International Human Rights Law Before and After the UDHR

Mashood A. Baderin and Manisuli Ssenyonjo

[I]t is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.1

1. Introduction

The international legal protection of human rights has undergone dramatic growth and evolution since the end of the Second World War, the founding of the United Nations (UN) in 1945, and the subsequent adoption, by the UN General Assembly, of the Universal Declaration of Human Rights (UDHR)2 on 10 December 1948.3 Although the historical origins of the concept of human rights are often linked with the idea of natural rights4 and there had been legal instruments adopted earlier in different states aimed at acknowledging and ensuring the protection of human rights by the rule of law,5 the proclamation and adoption of the UDHR on 10 December 1948 marked the real beginning of the momentous international journey towards ensuring that human rights are protected universally by the rule of law.6 Thus, the UDHR is considered today as the legal baseline for modern international human rights law, and 10 December 2008 marked the 60th anniversary of the setting of that legal baseline.

Although not intended as a legally binding instrument at the time of its adoption, the UDHR clearly acknowledged in its preamble, as quoted at the beginning of this chapter, the essential need to protect human rights through the rule of law. The UN General Assembly then proclaimed the Declaration to be

a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.7

From that humble beginning in 1948, international human rights law has evolved tremendously in different perspectives over the last six decades. Commemorating the 60th anniversary of the UDHR in 2008, the former UN High Commissioner for Human Rights, Louise Arbour, observed that ‘it is difficult to imagine today just what a fundamental shift the Universal Declaration of Human Rights represented when it was adopted 60 years ago’.8 Over those years there have been substantive developments in the theoretical, normative and legal perspectives of international human rights law, including debates on several conceptual issues regarding the scope and content of human rights generally. There has also been significant growth in the jurisprudence of different bodies and tribunals responsible for the interpretation and implementation of human rights law, and the human rights role of non-state entities such as non-governmental organizations (NGOs) has increased tremendously. New perspectives have also evolved regarding responsibilities and remedies for human rights violations relating to individual criminal responsibility for serious human rights violations, among others. This tremendous evolution of international human rights law in the past six decades calls for in-depth reflective analyses on the subject. The chapters in this volume, contributed by established human rights scholars and experts from different parts of the world, provide this much needed reflective analyses of the developments in the different areas of international human rights law over the past six decades since the adoption of the UDHR. This chapter provides an introductory background to these chapters.

2. The UN Charter and the Development of International Human Rights Law

Prior to the creation of the UN after the Second World War in 1945, earlier attempts at including specific human rights provisions in the Covenant of the League of Nations after the First World War in 1919 were unsuccessful. The only substantive human rights provision in the Covenant was on labour rights in its Article 23, stating that members of the League ‘will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend’9 and ‘undertake to secure just treatment of the native inhabitants of territories under their control’.10 However, there emerged separate minority protection treaties and state declarations guaranteeing the protection of the rights of minorities, with the League of Nations performing a supervisory role over the obligations created, which were considered of international concern.11

Nevertheless, private endeavours continued both within and outside the League of Nations for the realization of an international human rights legal regime. In 1929, the Institute of International Law, a private body of distinguished authorities on international law in Europe, the Americas and Asia, adopted the Declaration of the Rights of Man,12 in which it considered that it was the duty of every state to recognize, inter alia, the equal rights of every individual to life, liberty and property. The Institute also considered that every state had a duty to accord to everyone within its territory the full and entire protection of these rights without distinction as to nationality, sex, race, language or religion. Although the Declaration was not a legally binding document, it contributed to the popularization of the idea of an international human rights legal regime in the years immediately after its adoption. Commenting on the Declaration, Marshall Brown, writing in 1930, observed:

This declaration … states in bold and unequivocal terms the rights of human beings, ‘without distinction of nationality, sex, race, language and religion,’ to the equal right to life, liberty and property, together with all the subsidiary rights essential to the enjoyment of these fundamental rights. It aims not merely to assure to individuals their international rights, but it aims also to impose on all nations a standard of conduct towards all men, including their own nationals. It thus repudiates the classic doctrine that states alone are subjects of international law. Such a revolutionary document, while open to criticism in terminology and to the objection that it has not juridical value, cannot fail, however, to exert an influence on the evolution of international law. It marks a new era which is more concerned with the interests and rights of sovereign individuals than with the rights of sovereign states.13

The atrocities committed during the Second World War further provoked significant humanitarian concerns and moved the world community to call for formal international measures aimed at ensuring the legal protection of human rights and achievement of world peace and security. Thus, the Allies determined even before the end of the war that an international commitment to the protection of human rights should be a part of the post-war settlement.14 Consequently, in the preamble of the UN Charter that emerged after the war, the member states, after declaring their determination ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’,15 also declared their determination ‘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’.16

The Charter also provided substantively in its Article 1(3) that one of the purposes of the UN would be ‘(t)o achieve international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. Futhermore, Article 55 provided that:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote… [inter alia] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

The UN member states then pledged themselves under Article 56 of the Charter ‘to take joint and separate action in co-operation with the Organization for the achievement of the purpose stated in Article 55’.17

Although the Charter did not list the specific contents of the human rights and fundamental freedoms referred to, it signalled the dawn of the international human rights legal regime. To take the international human rights initiative forward, the Charter provided for the establishment of an Economic and Social Council (ECOSOC) whose functions included making ‘recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all’,18 and the powers to ‘set up commissions … for the promotion of human rights, and such other commissions as may be required for the performance of its functions’.19 The basic objective of the (now disbanded) International Trusteeship System created under the Charter for the administration of the Trust Territories also included the requirement ‘to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world’.20 By virtue of these Charter provisions, seen in the context of Article 103,21 the UN member states are obliged to observe, promote and encourage universal respect for human rights. Today, the UN Charter is widely considered as the basis of an international ‘constitutional order’22 that imposes obligations on member states to uphold international co-operation in promoting and encouraging respect for human rights.23 Louis Henkin has concisely described the development as follows:

The UN charter ushered in a new international law of human rights. The new law buried the old dogma that the individual is not a ‘subject’ of international politics and law and that a government’s behaviour toward its own nationals is a matter of domestic, not international concern… It gave the individual a part in international politics and rights in international law, independently of his government. It also gave the individual protectors other than his government, indeed protectors and remedies against his government.24

Thus did the UN Charter provide a binding legal basis for the development of international human rights law in 1945, a foundation upon which the UDHR was subsequently built in 1948.

As noted above, apart from the Charter’s prohibition of discrimination as to race, sex, language, or religion, it did not clearly define what human rights states were obliged to promote and protect. Efforts by some countries and non-governmental organizations (NGOs) attending the San Francisco conference for the inclusion of an international bill of rights in the UN Charter failed mainly because they were opposed by the major powers.25 Soon after the adoption of the UN Charter, ECOSOC, acting on its mandate and powers under the Charter, established a Commission on Human Rights in 1946 with the mandate to develop the framework for an international bill of rights that set out clearly the specific contents of the international human rights recognized under the Charter. The Commission, appointed a Drafting Committee chaired by Eleanor Roosevelt, which drafted the UDHR between January 1947 and December 1948 as the first part of the so-called international bill of rights.26

3. The UDHR as a Common Standard of Achievement

The UDHR was the first UN instrument adopted that contained a list of internationally recognized human rights. It was adopted unanimously27 as a simple resolution of the UN General Assembly on 10 December 1948, and it has served, since its adoption, as a framework for subsequent international human rights treaties as well as many regional human rights instruments and national constitutions.28

As a common standard of achievement, the rights covered by the UDHR are the following: right to life, liberty and security of person (Art. 3); prohibition of slavery or involuntary servitude (Art. 4); prohibition of torture or cruel, inhuman or degrading treatment or punishment (Art. 5); right to recognition as a person before the law (Art. 6); right to equality before the law, non-discrimination, and equal protection of the law (Art. 7); right to an effective legal remedy (Art. 8); right to freedom from arbitrary arrest, detention, or exile (Art. 9); right in full equality to a fair and public hearing by an independent and impartial tribunal (Art. 10); right to be presumed innocent until proved guilty according to law, right not to be held guilty for any act or omission which did not constitute an offence at the time committed, and right not to be punished with a heavier penalty than applicable at the time of committing an offence (Art. 11); right to freedom from arbitrary interference with privacy, family, home or correspondence and attacks on one’s honour and reputation (Art. 12); right to freedom of movement and residence within state borders and right to leave any country and to return to one’s own country (Art. 13); right to seek and enjoy asylum (Art. 14); right to nationality and right to change nationality (Art. 15); right to marry and found a family (Art. 16); right to property (Art. 17), right to freedom of thought, conscience and religion (Art. 18); right to freedom of opinion and expression (Art. 19); right to freedom of peaceful assembly and association (Art. 20); right to take part in the government of one’s country, have access to public service, and take part in elections (Art. 21); right to social security (Art. 22); right to work, to equal pay for equal work, and to form and join trade unions (Art. 23); right to rest and leisure, limitation of working hours, and periodic holidays with pay (Art. 24); right to a standard of living adequate for health and well-being, including food, clothing, housing and medical care, and necessary social services, and right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond one’s control (Art. 25); right to education (Art. 26); right to participate freely in cultural life and to enjoy the arts and share in scientific advancement, and right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (Art. 27); and right to a social and international order in which the rights and freedoms can be fully realized (Art. 28).

Significantly, as can be noted from the above list, the UDHR covered both civil and political rights, as well as economic, social and cultural rights (ESC) rights without distinction, and thus recognized indivisibility, interdependence and interrelatedness of all human rights from the beginning.29 It also recognized that ‘everyone has duties to the community in which alone the free and full development of his personality is possible’.30

Although the UDHR at the time of its adoption was not a legally binding instrument, over time it has evolved to the extent that some of its provisions now either constitute customary international law and general principles of law or represent elementary considerations of humanity.31 As noted above, its greatest significance is that it provides an authoritative content, adopted by the UN General Assembly, to the interpretation of the UN Charter in respect of its human rights provisions. Its considerable practical importance, in that regard, has been demonstrated through its invocation by the International Court of Justice (ICJ),32 the International Criminal Court (ICC),33 regional and domestic courts as an aid to interpretation of relevant human rights treaties,34 and national constitutional provisions protecting human rights.35 The Declaration has also been referred to in a number of cases involving human rights issues.36 At the regional level, Article 60 of the African Charter on Human and Peoples’ Rights (African Charter or ACHPR), ratified by 53 African states, specifically requires the African Commission on Human and Peoples’ Rights to draw inspiration, inter alia, from the UDHR when interpreting the African Charter.37 Some national constitutions also accord the UDHR a special status by their reference to it, with some explicitly providing for the interpretation of the constitutions in conformity with the UDHR. For example, Article 102 of the Spanish Constitution of 1978 provides that ‘The norms relative to basic rights and liberties which are recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreement on those matters ratified by Spain’. Similarly, Article 75(22) of the Constitution of Argentina (as amended) confers constitutional rank on various human rights instruments, including the UDHR, by declaring that these instruments ‘have a higher hierarchy than laws’.

This confirms the view that over the years the UDHR has indeed acquired a legal or normative character as envisaged by its designation as ‘a common standard of achievement for all peoples and all nations’ in its preamble when it was adopted in 1948.

Since the adoption of the UDHR in 1948, a considerable number of rules of international law, both customary and treaty, have been developed at the international38 and regional levels – in Europe,39 the Americas40 and Africa41 – with the aim of protecting, promoting, further defining and expanding the content of human rights.42

In continuance of its mandate of drafting the international bill of rights, the UN Commission on Human Rights commenced, in earnest after the adoption of the UDHR, the drafting of a legally binding international human rights treaty under the UN system. Eventually, two binding covenants were produced after nearly 20 years of drafting debates and disagreements regarding whether or not to combine civil and political rights and ESC rights in one single covenant.43 The International Covenant on Civil and Political Rights (ICCPR)44 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)45 were adopted in 1966 and both entered into force in 1976.46 As noted above, the two covenants, together with the UDHR, constitute the so-called International Bill of Rights. The rights protected in the two covenants cover and enlarge most of the rights recognized under the UDHR and thereby protect nearly all the basic values cherished by all states and every human society.47 In addition, many other ancillary international treaties and declarations on the rights of women, children, refugees, stateless persons, diplomatic agents, minorities, persons with disabilities, etc., have been adopted under the UN system. There are also specific international human rights treaties for the protection of a person against atrocities such as genocide, racial discrimination, apartheid, slavery, forced labour, torture, etc.48 Today, every state in the world (despite a wide variety of historical, political, religious, social and cultural differences) has ratified at least one of these international human rights treaties,49 indicating the increasing trend towards universal acceptance of human rights in the international legal system.50 It is in this context that it is recognized that:

While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.51

At the regional level, organizations such as the Council of Europe, the Organization of American States, the Organization of African Unity/African Union,52 and the League of Arab States have also adopted different regional human rights treaties in recognition of the noble ideals of international human rights. The basic regional human rights treaties are the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950),53 the European Social Charter (1961),54 the American Convention on Human Rights (1969),55 the African Charter on Human and Peoples’ Rights (1981),56 and the Arab Charter on Human Rights (1994).57 Specific regional human rights treaties and declarations on the rights of women, children, refugees, and the prohibition of torture, etc., have also been adopted.58 Although Arab and Asian states have not yet created a regional human rights system, as a result of several factors including vast differences in culture, political ideology and economic development,59 there are emerging trends that present an opportunity to create a regional system in the Middle East. This is evident, for example, in the adoption of a revised Arab Charter on Human Rights by the League of Arab States in 2004, which, in its preamble, reaffirmed, inter alia, the principles of both the UN Charter and the UDHR.60

Over the last six decades since the adoption of the UDHR, human rights have progressively developed into a universal value system, and it is now generally accepted that ‘the promotion and protection of all human rights is a legitimate concern of the international community,’61 and it is against this that states are evaluated today. Evidently, the scope and limits of human rights have enormously transcended the initial rights guaranteed under the UDHR in 1948. While it is certainly impossible to attempt to address all the relevant issues, developments and failures in that regard in a single volume of this nature, this book has been carefully structured and issues carefully selected to cover the principal and most relevant aspects of the developments.

5. Thematic Structure of this Book

This book is structured thematically into five parts, namely: introduction, concepts and norms, mechanisms and implementation, responsibilities and remedies, and the concluding section entitled ‘And Beyond’. This structure is aimed at covering relevant developments in the theory and practice of international human rights law as comprehensively and thematically as possible in a single volume. A brief summary of the chapters contained in each of the four remaining parts is provided below.

Part II of this book consists of nine chapters addressing different issues relating to the development of concepts and norms under international human rights law. Theoretically, the question of universality has remained at the heart of international human rights debates since the adoption of the UDHR. While the naming of the UDHR as a ‘Universal Declaration’ clearly indicated that the international human rights venture was meant to be a universal venture from the beginning, it also raised questions about the meaning and scope of the universality of human rights. For example, one of the earliest questions posed to the UN Commission on Human Rights, then drafting the UDHR, was the statement submitted to the Commission by the American Anthropological Association (AAA) on 24 June 1947 about the proposed universality of human rights and how that would be achieved.62 Although the UDHR has, today, established itself as an instrument of significant moral and legal influence universally, that theoretical question about the meaning and scope of the universality of human rights has not been fully muted. Traditionally, the universality debate has been generally divided into the ‘universalist’ and ‘cultural relativist’ perspectives, and it has oscillated over the last six decades but has influenced, substantively, the conceptual understandings informing the implementation of international human rights law in different parts of the world today.

Part II opens with Jack Donnelly’s Chapter 2 entitled ‘International Human Rights: Universal, Relative or Relatively Universal?’, which provides a refreshing insight into the conceptual debate on universalism and cultural relativism. Jack argues that while each side in the debate rests on important insights about the nature of human rights, the standard terms of the debate are, essentially, misformulated. He asserts that universality and relativity are multifaceted concepts that are not necessarily incompatible, and that human rights are indeed universal in some standard and important senses of that term but also relative in some relevant standard senses of that term. He states that the real issue is not whether human rights are universal or relative but how they are and are not universal, and also how they are and are not relative, and how these universalities and relativities interact, in theory and in practice. Jack then proceeds to identify and analyse three different senses in which human rights may be reasonably understood as being universal – that is, ‘international legal universality’, ‘functional universality’ and ‘overlapping consensus universality’ – and two senses, in which human rights are not essentially universal – that is, ‘ontological universality’ and ‘historical (or anthropological) universality’. He also considers some standard relativist arguments before proposing that human rights must rather be seen as being ‘relatively universal’. Essentially, the chapter endeavours to bridge the dichotomy between the traditional ‘universalist’ and ‘cultural relativist’ theoretical debate through a refreshing perspective of ‘relative universality’, which he sees as a powerful perspective that can be used to build more just and humane national and international societies through international human rights law. He concludes that there can be little doubt that human rights are both universal and relative and that any reasonable discussion of the issue of universality today must start from this observation. This perspective can certainly provide a new dimension to the debate on the universality of human rights into the future.

Normatively, while the UDHR contains a mixture of civil and political rights and ESC rights, one of the main normative controversies that confronted the UN Commission on Human Rights in the drafting of an internationally binding human rights covenant, subsequent to the UDHR, was, as noted earlier, the question of whether or not civil and political rights and ESC rights should be combined together in one single legally binding covenant. The compromise in the end was to draft two separate covenants, namely the ICESCR and the ICCPR, both of which were adopted in 1966 and entered into force in 1976.63 This created the initial division between the two set of rights. Consequently, ESC rights under the ICESCR and civil and political rights under the ICCPR have developed differently over the years. The development of ESC rights had, traditionally, been much slower than that of civil and political rights due to different reasons.64

Manisuli Ssenyonjo’s Chapter 3, ‘Economic, Social and Cultural Rights’, provides a comprehensive analysis of the evolution of ESC rights since the adoption of the UDHR. He first shows that despite the fact that ESC rights have received increased positive attention in recent years, they are still very much marginalized and still considered as second class to civil and political rights. This marginalization of ESC rights, Manisuli argues, mostly affects the poor and disadvantaged groups and individuals, and also raises specific questions that the chapter seeks to address; namely, (i) what are the real human rights obligations of states parties to the ICESCR? (ii) are such obligations territorially limited or is there scope for extraterritorial obligations? (iii) are states permitted to derogate from ESC rights during emergencies despite the fact that the ICESCR does not contain a derogation clause either permitting or prohibiting derogations?, and (iv) was it really necessary to adopt, in 2008, an Optional Protocol to the ICESCR providing for the right of complaint by individuals and groups against violations of the rights protected by the ICESCR? In addressing these questions, Manisuli endeavours to demonstrate that the ICESCR lays down clear human rights legal obligations on states parties. He notes that the recent increase in domestic and regional case law on ESC rights and the adoption by the UN General Assembly on 10 December 2008, the 60th anniversary of the UDHR, of an Optional Protocol to the ICESCR, clearly indicates that violations of ESC rights are now clearly established as being justiciable both in theory and practice. The chapter also notes that the absence of a clause allowing derogation in times of public emergency in the ICESCR indicates that the covenant generally continues to apply in the time of armed conflict, war or other public emergencies, and, as a minimum, states cannot derogate from the minimum core obligations of ESC rights. Thus, the chapter analyses clearly that from the humble beginnings in Articles 22–27 of the UDHR in 1948, it has taken more than six long decades to bring ESC rights to the same level of enforcement accorded to civil and political rights under international human rights law, and envisages that, with the entry into force of the Optional Protocol, the enforcement of ESC rights should proceed more effectively than before.

Furthermore, Sarah Joseph’s Chapter 4