A lot many things can be said about the Universal Declaration
of Human Rights (UDHR). It is the foundation of international human rights law,
the first universal statement on the basic principles of inalienable human rights,
and a common standard of achievement for all peoples and all nations. As the
UDHR approaches its 60th birthday, it is timely to emphasize the living document’s
enduring relevance, its universality, and that it has everything to do with
all of us. Today, the UDHR is more relevant than ever.
The declaration was the first international legal effort to
limit the behaviour of states and press upon them duties to their citizens following
the model of the rights-duty duality.
“...recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family is the foundation
of freedom, justice and peace in the world.”
—Preamble to the Universal Declaration
of Human Rights, 1948
"It is not a treaty...(In the future, it) may
well
become the international Magna Carta."
Eleanor Roosevelt with the Spanish text of
the Universal Declaration in 1949.
The UDHR was framed by members of the Human Rights Commission,
with former First Lady Eleanor Roosevelt as Chair, who began to discuss an International
Bill of Rights in 1947. The members of the Commission did not immediately agree
on the form of such a bill of rights, and whether, or how, it should be enforced.
The Commission proceeded to frame the UDHR and accompanying treaties, but the
UDHR quickly became the priority. Canadian law professor John Humprey and French
lawyer René Cassin were responsible for much of the cross-national research
and the structure of the document respectively, where the articles of the declaration
were interpretative of the general principle of the preamble.
The document was structured by Cassin to include the basic
principles of dignity, liberty, equality and brotherhood in the first two articles,
followed successively by rights pertaining to individuals; rights of individuals
in relation to each other and to groups; spiritual, public and political rights;
and economic, social and cultural rights. The final three articles place, according
to Cassin, rights in the context of limits, duties and the social and political
order in which they are to be realized. Humphrey and Cassin intended the rights
in the UDHR to be legally enforceable through some means, as is reflected in
the third clause of the preamble:
“Whereas it 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.”
—Preamble to the Universal Declaration
of Human Rights, 1948
Some of the UDHR was researched and written by a committee
of international experts on human rights, including representatives from all
continents and all major religions, and drawing on consultation with leaders
such as Mahatma Gandhi. The inclusion of both civil and political rights and
economic, social and cultural rights was predicated on the assumption that basic
human rights are indivisible and that the different types of rights listed are
inextricably linked. This principle was not then opposed by any member states
(the declaration was adopted unanimously, with the abstention of the Eastern
Bloc, Apartheid South Africa and Saudi Arabia), however this principle was later
subject to significant challenges.
The Universal Declaration was bifurcated into two distinct
and different covenants, a Covenants on Civil and Political Rights and another
Covenant on Economic, Social and Cultural Rights. Over the objection of the
more developed states [Capitalist], which questioned the relevance and propriety
of such provisions in covenants on human rights, both begin with the right of
people to self-determination and to sovereignty over their natural resources.
Then the two covenants go different ways (see, Louis Henkin, The International
Bill of Rights: The Universal Declaration and the Covenants, in International
Enforcement of Human Rights 6-9, Bernhardt and Jolowicz, eds, (1987))
The drafters of the Covenants initially intended only one instrument.
The original drafts included only political and civil rights, but economic and
social rights were added early. Western States then fought for, and obtained,
a division into two covenants. They insisted that economic and social right
were essentially aspirations or plans, not rights, since their realization depended
on availability of resources and on controversial economic theory and ideology.
These, they said, were not appropriate subjects for binding obligations and
should not be allowed to dilute the legal character of provisions honoring political-civil
rights; states prepared to assume obligations to respect political-civil rights
should not be mitments. There was wide agreement and clear recognition that
the means required to enforce or induce compliance with socio-economic undertakings
were different from the means required for civil-political rights. See Louis
Henkin, Introduction, The International Bill of Rights 9-10 (1981).
Because of the divisions over which rights to include, and
because some states declined to ratify any treaties including certain specific
interpretations of human rights, and despite the Soviet bloc and a number of
developing countries arguing strongly for the inclusion of all rights in a so-called
Unity Resolution, the rights enshrined in the UDHR were split into two separate
covenants, allowing states to adopt some rights and derogate others. Though
this allowed the covenants to be created, one commentator has written that it
denied the proposed principle that all rights are linked which was central to
some interpretations of the UDHR.
