The Origins of the Universal Declaration of Human Rights

1. The Origins of the Universal Declaration of Human Rights BACON, Paul School of International Liberal Studies Waseda University

2. UDHR download URL • You can read the UDHR in full and download a copy using the following URL: • www.unhchr.ch/udhr/index.htm

3. Key points about human rights • The idea of human rights is an extremely powerful idea that has been globalized. • But it is also the case that many human rights have been and are being violated around the world. • The UN has played a key role in the codification of human rights. • The UN has attempted to establish human rights norms, institutions and activities to support these basic and universal human rights.

4. Key points about human rights • It is perhaps accurate to suggest that the UN has been extremely successful at codifying and promoting human rights. • But less successful at creating institutions that protect human rights. • Individuals, NGOs, IGOs and sometimes states have been the prime movers in campaigns to promote human rights.

5. Human rights-Key events • The Holocaust. • Apartheid in South Africa. • Lack of civil and political rights in eastern Europe during the Cold War. • Famine in Africa. • Genocide in Bosnia and Rwanda in the 1990s.

6. Roosevelt’s four freedoms The four freedoms to which Roosevelt referred were: • Freedom of speech and expression. • Freedom of worship. • Freedom from want. • Freedom from fear.

7. The UN Charter and Human Rights • The UN Charter, which was signed in June 1945, and came into legal force in October 1945, mentions human rights in a number of different places, as we have already seen. (the Preamble to the Charter, Article 1, Article 13, Article 55, Article 68). • One of the primary purposes of the UN is “promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion”. • These commitments to human rights contradict other important parts of the UN Charter, and are ultimately ‘trumped’ by them.

8. -Human Rights in the UN Charter-Chapter 10 Article 68 • The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions. • 経済社会理事会は、経済的及び社会的分野における委員会、人権の伸張に関する委員会並びに自己の任務の遂行に必要なその他の委員会を設ける。

9. The UN Charter and the Universal Declaration • The UN Charter does not define human rights. But it does establish a commitment and obligation to human rights on behalf of states. • The UN Charter provides the UN with the legal authority to define and codify human rights (Article 68). • The UN General Assembly laid the foundations for this effort on December 10th 1948, with the passing of the Universal Declaration of Human Rights. • The UN Charter and the Universal Declaration of Human Rights together constitute a revolution in the international politics of human rights.

10. The ORIGINAL UN Charter-based Human Rights Bodies • ECOSOC was given the mandate to set up human rights commissions. It established three: • 1. The Commission on Human Rights (replaced in 2006). • 2. The Sub-commission on the Prevention of Discrimination and Protection of Minorities. (Renamed in 1999). • 3. The Commission on the Status of Women.

11. The UN Charter-based Human Rights Bodies TODAY • 1. The Human Rights Council. • 2. The Sub-commission on the Promotion and Protection of Human Rights. • 3. The Commission on the Status of Women.

12. The UN Commission on Human Rights • The Commission on Human Rights has been at the hub of the UN’s human rights-related activities. • The Commission on Human Rights has also been at the core of the UN human rights regime. • The Commission on Human Rights drafted and negotiated the major human rights documents, including the UDHR. • However, The Commission on Human Rights has attracted fierce criticism for being ineffective, slow, complex, selective and highly politicized. • The Commission on Human Rights was replaced by a new UN Human Rights Council on June 19, 2006.

13. The UDHR • Strictly speaking, the UDHR exists to make rights more effective at a national level, through national laws and national institutions. • The UDHR draws on ideas which influenced the French and American revolutions. These revolutions also drew on principles of natural rights. • The 30 rights which are contained in the UDHR are intended to: maintain and promote political freedom; preserve civil society; and protect the economic and social rights of individuals.

14. The UDHR • It should be made clear that the UDHR was intended as a first step. • From a legal point of view, the UDHR is merely a recommendation made by the UN General Assembly. • It was expected that the UDHR would be followed by a covenant or treaty that would be binding on all states that signed it. • In the late 1940s the Cold War developed between the Soviet Union and the United States. As a result of this conceptual and political differences emerged between western and socialist views on human rights. • These political and conceptual disagreements delayed the approval of a covenant or treaty that would give legal status to the rights which are contained in the UDHR.

15. The ‘Western’ view • To simplify somewhat, the western view is that it is individuals that have rights. • These rights must be protected from state intrusion. • According to the western view, the following civil and political rights are crucial for the functioning of society: • freedom of speech; • freedom of worship; • freedom of the press; • freedom of assembly.

16. The ‘Western’ view • These rights are often referred to as first-generation rights, or negative rights. • They are referred to as first-generation because these were the first rights to be incorporated into modern political constitutions. • They are referred to as negative rights, because they prevent government from interfering with private individuals in civil society.

17. The ‘socialist’ view • Again to simplify somewhat, according to the socialist view, human rights are the minimum material benefits that the state must provide for the people, so that they have the freedom to realize their rights. • According to the socialist view, the state must provide for the following economic and social rights, which are crucial for the functioning of society: • the right to employment; • the right to health care; • the right to education; • the right to social security.

18. The ‘socialist’ view • These rights are often referred to as second-generation, or positive rights. • They are associated with the 20th century view that it is the responsibility of government to provide for social welfare. • It should be noted that both first- and second- generation rights are included in the UDHR.

19. The ‘International Bill of Human Rights’ • As a result of the political and ideological differences which emerged during the Cold War, it was eventually necessary to draft two separate human rights Covenants. • - The International Covenant on Economic, Social and Cultural Rights. • - The International Covenant on Civil and Political Rights. • Both of these covenants were ratified by the UN General Assembly in 1966, and came into legal force in 1976, when they had been ratified by a sufficient number of countries.

20. The ‘International Bill of Human Rights’ • These two international covenants, taken together with the UDHR, are sometimes referred to as the ‘International Bill of Human Rights’. • The international bill of rights is a significant achievement, which demonstrates the important role which the UN has played in standard-setting in human rights. • Prior to and following the approval of the two standard-setting covenants, the UN has also created five other major human rights treaties. • Subjects include women, slavery, torture, refugees, forced labor, apartheid, and various forms of discrimination.

21. The 8 major UN human rights TREATIES (1) • ICERD – international convention on the Elimination of All forms of Racial Discrimination. • ICCPR – International Covenant on Civil and Political Rights. • ICESCR – International Covenant on Economic and Social Rights. • CEDAW – Convention on the Elimination of Discrimination against Women.

22. The 8 major UN human rights TREATIES (2) • CAT - Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. • CRC - Convention on the Rights of the Child. • ICRMW - International Convention on the Rights of All Migrant Workers and members of Their Families. • CRPD – Convention on the Rights of Persons with Disabilities.

23. The 8 major UN human rights treaty BODIES • CERD – Committee on the Elimination of Racial Discrimination. • HRC – Human Rights Committee. • CESCR – Committee on Economic, Social and cultural Rights. • CEDAW – Committee on the Elimination of Discrimination against Women. • CAT – Committee against Torture. • CRC – Committee on the Rights of the Child. • CMW – Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. • CRPD – Committee on the Rights of Persons with Disabilities.

24. Racial Discrimination • ICERD – International Convention on the Elimination of All Forms of Racial Discrimination. (173) • CERD – Committee on the Elimination of Racial Discrimination. • Initial report due within: 1 year. • Periodic report due every: 2 years. • Number of committee members: 18.

25. Civil and Political Rights • ICCPR – International Covenant on Civil and Political Rights. (161) • HRC – Human Rights Committee. • ICCPR – OP1- First Optional Protocol – Individual Complaints. • ICCPR – OP2 – Second Optional Protocol – the Abolition of the Death penalty. • Initial report due within: 1 year. • Periodic report due every: 4 years. • Number of committee members: 18.

26. Economic, Social and Cultural Rights. • ICESCR – International Covenant on Economic, Social and Cultural Rights. (158) • CESCR – Committee on Economic, Social and Cultural Rights. • Initial report due within: 2 years. • Periodic report due every: 5 years. • Number of committee members: 18.

27. Discrimination against Women. • CEDAW – Convention on the Elimination of Discrimination against Women. (185) • CEDAW – Committee on the Elimination of Discrimination against Women. • Initial report due within: 1 year. • Periodic report due every: 4 years. • Number of committee members: 23.

28. Torture • CAT - Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment. (145) • CAT – Committee against Torture. • OPCAT – Optional Protocol to the Convention against Torture. • Initial report due within: 1 year. • Periodic report due every: 4 years. • Number of committee members: 10.

29. Rights of the Child • CRC - Convention on the Rights of the Child. (193) • CRC – Committee on the Rights of the Child. • CRC – OPAC – Optional Protocol to the CRC on the Involvement of Children in Armed Conflict. • CRC – OPSC – Optional Protocol to the CRC on the sale of children, child prostitution, and child pornography. • Initial report due within: 2 years. • Periodic report due every: 5 years. • Number of committee members: 18.

30. Migrant Workers • ICRMW - International Convention on the Rights of All Migrant Workers and members of Their Families. (37) • CMW – Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. • Initial report due within: 1 year. • Periodic report due every: 5 years. • Number of committee members: 10.

31. Persons with Disabilities • CRPD – Convention on the Rights of Persons with Disabilities. • CRPD – Committee on the Rights of Persons with Disabilities. • Initial report due within: 2 years. • Periodic report due every: 4 years. • Number of committee members: 12.

32. Treaty Bodies and State Parties – the reporting process • 1. Submission of initial report by the state party. • 2. List of issues and questions drawn up by the committee. • 3. Written response to list of issues is drawn up by the state party. • 4. Other sources of information also available to the committee, for example from NGOs or other UN agencies. • 5. Formal consideration of the report by the committee, and constructive dialogue between the committee and the state party. • 6. Concluding observations and recommendations drawn up by the committee. • 7. These concluding observations are implemented by the state party, and the first periodic report is submitted as required.

33. Problems with the process • 1. The treaties are legally binding, but treaty bodies have no means of enforcing their recommendations. • 2. The issue of self-executing law. • 3. Late reporting by state parties. • 4. Inaccurate or incomplete reporting by state parties. • 5. Lack of follow-up implementation by the state parties.

34. Example of problems: the ICCPR and the Human Rights Committee • 1. The ICCPR is not regarded as a self-executing document in, for example. the US. • 2. 22 countries have an initial report which is five or more years overdue. • 3. 23 countries have a report of some kind which is ten or more years overdue. • 4. 49 countries have a report of some kind which is five or more years overdue. • 5. In 2007, the committee only examined the reports of 10 state parties.

35. Additional problems for the UN treaty-based and charter-based human rights bodies • 1. Historically the budget for human rights protection has been low, although this is changing. • 2. Disagreement about the relative priority of civil and political, and economic and social rights (the authoritarian advantage argument). • 3. Disagreement as to whether there are universal human rights, or whether there are significant cultural variations (Asian values vs. Western values).

36. Additional problems for the UN treaty-based and charter-based human rights bodies • 4. Western double standards with regard to human rights. • 5. Many non-western authoritarian governments are reluctant to have their human rights records examined. • 6. “Organized hypocrisy” of most state parties to the treaties. • 7. “Institutional capture” of the Commission on Human Rights, and possibly the new Human Rights Council, which I will discuss in more detail.