TRANSCRIPT

Source: [Louv2x] The Evolution of International Human Rights Law (1/2)

On the 26th of June, 1945, the United Nations signed the Charter establishing the United Nations
organization. This, of course, does not mean that human rights were invented on that day. Human
rights have a long history in constitutional law and we have many national constitutions that at
the time already protected the full range of human rights. But it is in 1945 with the establishment
of the United Nations Organization that really human rights were proclaimed to be a subject of
international concern.

The reasons for this have to do with the understanding of the values on which the new world
order were to be built after the Second World War. You have on this slide President Franklin
Delano Roosevelt from the United States, together with Prime Minister Winston Churchill from
the United Kingdom who, together on this vessel, the HMS Prince of Wales, adopted in August
1941 the Atlantic Charter. The Atlantic Charter was a set of eight principles on which Roosevelt
and Churchill considered that the post-Second World War world order would have to built.

And amongst these principles, they mentioned the right to the self-determination of peoples and
the right of all peoples to live lives free from fear and free from want. And this idea that freedom
from fear and freedom from want should be central to the establishment of the post-Second
World War new world order is something we find also in the United Nations declaration adopted
on the 1st of January, 1942, by the Allies against Nazi Germany and the powers of the axis, and
which confirms the choices made in the Atlantic Charter.

Now this explains that when the Charter was adopted, one of the purposes of the United Nations
was defined as having to promote and encourage respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion. It is, of course, perhaps
surprising that we do not have in the UN Charter itself lists of human rights, although these
human rights are referred to. They are referred to in the article of the Charter that defines the
purpose of the UN, but they are also referred to in chapter nine on international economic and
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social cooperation. Article 55 mentions again that the UN should promote universal respect for
and observance of human rights and fundamental freedoms without discrimination. Article 56 is a
commitment of United Nations member states to work towards the fulfillment of this objective.

Now, that is not to say that there was no attempt made to insert a catalog of human rights in the
UN Charter. And I should mention here the role played by the representative of Panama in the
San Francisco conference that negotiated the content of the United Nations Charter. Ricardo
Alfaro was a very prestigious figure. He had been President of the Republic of Panama in 1931,
1932. He was an eminent lawyer. He actually later became one of the main negotiators of the
1948 Convention for the Prevention and Repression of the Crime of Genocide and he was a
member of the International Law Commission in the 1950s. And finally, became a member of the
International Court of Justice, which he was vice president of until 1964.

Ricardo Alfaro arrived at the San Francisco conference as a representative of Panama with an
objective, which was to insert into the Charter a catalog of human rights. Indeed, Alfaro in his
academic capacity had been working with American lawyers within the American Law Institute
to write a text that was called the Statement on Essential Human Rights, adopted in 1944. And
Alfaro offered this text as a first draft of the catalog of human rights that he believed should be
inserted into the San Francisco United Nations Charter. That proposal was dismissed in large part
because the delegates found that it would be too complicated an issue to settle in the short time
that they had.

And so it was decided that instead, the Economic and Social Council would be established with a
duty to establish thematic commissions, working groups, among which a Commission on Human
Rights, and that is what Article 68 of the UN Charter states. The Economic and Social Council
shall set up commissions in economic and social fields and for the promotion of human rights,
and it is indeed what the ECOSOC, the Economic and Social Council, did very soon after the
United Nations Charter entered into force. In fact, the Human Rights Commission, the
commission on human rights, was established in February 1946 by a resolution adopted by the
Economic and Social Council as a thematic commission of 18 members at the time. We should
recall that the United Nations was composed of a relatively small number of nations at the time.
Later, the Commission on Human Rights grew to accommodate the more diverse membership of
the United Nations following the decolonization of the 1950s and 1960s and actually when the
United Nations Commission on Human Rights met for the last time in 2006, it had 53 member
states. But so that was one thematic commission established by the ECOSOC, the Economic and
Social Council, in 1946.

Another thematic commission that was established, which I should mention because of the
important role it also played in the area of human rights, is the Commission on the Status of
Women. Established in June 1946, it is within the Commission on the Status of Women that, for
example, the very important Convention on the Elimination of All Forms of Discrimination
against Women, adopted in 1979, was negotiated. So the Commission on the Status of Women is
one body that has played a very important role also in this domain.

Now, the Commission on Human Rights later was assisted by a body of independent experts
advising the Commission on Human Rights and working at its request on certain thematic issues.
That group of experts was called, initially, the Sub-Commission on Prevention of Discrimination
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and Protection of Minorities, but in 1999 it changed its name to become the Sub-Commission on
the Promotion and Protection of Human Rights. In short, the Sub-Commission on Human Rights,
which was dismantled, of course, when the Commission on Human Rights disappeared in 2006,
which we shall return to this in another part of our discussion.

What I would like to briefly address is what was done within, the United Nations, during the very
first stages of what was called this "great adventure" of building human rights at universal level.
The Commission on Human Rights decided to create three working groups to make progress
towards recognizing human rights and strengthening the role of the UN in this area. The first
working group was in charge of adopting one set of principles, one catalog of rights perhaps, and
that is the group that was chaired by the widow of the US President Franklin Delano Roosevelt,
who had deceased in April 1945.

And one other very influential member of this working group of the Human Rights Commission
was Rene Cassin. Rene Cassin, who was the delegate of the French government and who, at the
time, was the President of the Council of State in France. Later, Rene Cassin was, inter alia, the
President of the European Court of Human Rights in Strasbourg. He was a very eminent lawyer,
highly respected, and had dedicated his work in the 1930s to the issue of human rights and the
prevention of conflicts.

This was one working group. The other working groups were, respectively, one that was to
reflect on a new treaty to protect human rights at universal level, a new binding legal instrument,
and there was finally a working group on monitoring mechanisms, in other terms, for the
establishment of procedures to protect human rights at universal level. But it is within the first of
these working groups, the one chaired by Eleanor Roosevelt, that the Universal Declaration of
Human Rights was adopted. This is a hugely important instrument, that is presented here on this
slide by Eleanor Roosevelt herself, that in 30 articles lists all universally recognized human rights
that, in later years, the United Nations would develop in the form of various treaties and
conventions.

Now the Universal Declaration of Human Rights was deliberately framed as a set of broad
principles. Rene Cassin was in favor of a much more detailed text, conceived as a legally binding
treaty if you wish, but that approach was considered to be unrealistic in the short term. And
indeed, we are in 1948, the Cold War is gradually building up with the blocus [blockade] of
Berlin in June 1948, which is really the beginning of the Cold War. And I believe that Eleanor
Roosevelt was quite right in considering that it would be difficult to adopt something much more
ambitious than this broad declaration of principles.

The Universal Declaration of Human Rights was adopted just before midnight on the 10th of
December, 1948, by the 56 member states of the General Assembly of the United Nations, as it
was at the time. There was no vote against, although there were some abstentions. Altogether the
declaration was adopted by 48 votes in favor and eight abstentions.

The abstentions came from South Africa, which had just established its apartheid regime, and I
suppose, of course, the idea that racial discrimination should be prohibited. Saudi Arabia was
opposed to the idea that one should be left free to choose and to leave one's religion. And then the
USSR, the Soviet Union and its satellite states, were fearful that the adoption of the Universal
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Declaration of Human Rights would lead the UN to interfere within the domestic affairs of its
member states and so, they too, abstained from voting in favor of this document. On the whole,
however, it is quite an achievement that this declaration could be adopted because of the far
reaching implications of the principles that take place in its 30 articles.

How was the declaration adopted? Well, one important figure here to mention is John Peters
Humphrey. John Peters Humphrey, who at the time was 41 years of age, was a professor of
international law in Canada and he was heading, and headed until 1966, the Human Rights
Division within the United Nations system. He was, therefore, in charge of preparing the work of
the working group of the Commission on Human Rights, chaired by Eleanor Roosevelt. And
what John Humphrey did was, essentially, to compare the various documents protecting human
rights at domestic level, and he tried to identify which commonalities emerged from comparing
these various documents.

Now among these documents were, of course, the most famous documents adopted already in the
Middle Ages. The Magna Carta was adopted in England in 1215, the beginning of the 13th
century, to declare certain rights that King John was to respect rights of the English people. The
French Declaration des Droits de l'Homme et du Citoyen had been adopted on 26th of August,
1789, as part of the French revolutionary process, a very important document and there again
stating the essential human rights to which the French people were attached. And, of course, the
Bill of Rights that was appended to the Constitution of the United States. Adopted in 1787, the
Bill of Rights was appended to that documented in 1791 and was later complemented in the 19th
century.

So all these documents were a source of inspiration for John Humphrey, who also used more
modern instruments, particularly a number of liberal constitutions adopted in the 1830s and
1840s when a number of states turned to become democratic regimes and adopted catalogs of
human rights in their domestic constitutions. I mention this because it's important to understand
that human rights, although they were proclaimed at international level by the Universal
Declaration of Human Rights of 1948, in fact, have their source in domestic constitutional law.
So that the nature of human rights, to this day, remains a hybrid nature and the logic of human
rights is not purely the logic of general international law. It is also a constitutional logic, a logic
in which individuals are recognized certain rights against their governments, against the State
under the jurisdiction of which they find themselves, and therefore there is a specificity to human
rights that are not simply values that the international community strives to protect and to fulfill.
And it is an issue that we shall return to in later parts of this course.

What is also important to mention with regard to the Universal Declaration of Human Rights is
that it is a document that lists in one single text the full catalog of civil, economic, political,
social, and cultural rights, which in later years were separated into different blocks, different
categories. We have here on this slide President Franklin Delano Roosevelt signing the Social
Security Act in 1935. And this illustrates the commitment of Franklin Delano Roosevelt to
building a Welfare State for the US. And he did so in his successive New Deal programs that
were launched when he reached the presidency in 1932. And it is this idea that economic and
social rights should complement civil and political rights and that the two sets of rights are
interdependent, indivisible, and of equal importance that the Universal Declaration of Human
Rights also reflects.
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Indeed, Franklin Delano Roosevelt was extremely committed to this issue, so much so that in his
State of the Union Address of 1944 he mentioned the idea of a second Bill of Rights for the
American people. Of course, it was metaphorical language. He did not mean that the
Constitution, per se, necessarily had to be amended. But he did have in mind that legislative
programs should protect people from want and that the right to housing, the right to food, the
right to social security, the right to work should, for example, be protected under US legislation.

It is this idea, it is this philosophy that protecting all human rights, including economic and social
rights, was necessary for a democratic State to prosper that the Universal Declaration of Human
Rights then came to embody. Indeed, one of the famous sentences used by Franklin Delano
Roosevelt in his State of the Union Address of 1944 is that "men who are hungry... are the stuff
of which dictatorships are made". And by this, President Roosevelt meant to imply that
democracy would only be firm and democratic processes would only work adequately if
economic and social rights were protected for the benefit of all.

Now that is not to say that the Universal Declaration of Human Rights makes no distinction
between the various groups of rights that it recognizes. Consider, for example, Article 22 of the
Universal Declaration of Human Rights, that is the first article in the declaration referring to a
social right and that provision relates, indeed, to the right to social security. "Everyone, as a
member of society, has the right to social security and is entitled to realization through national
effort and international cooperation and in accordance with the organization resources of each
State, of the economic, social, and cultural rights indispensable for his dignity and the free
development of his personality".

As you can see, the right to social security is seen as a right that requires, for its fulfillment, for
its realization, efforts on the part of the State, dependent perhaps on the budget available for that
State. It is a right that requires for its realization international cooperation. And it is a right that
should be recognized in accordance with the organization and resources of each State. The world
organization refers to the fact that states may choose a market economy or may choose a much
more planned or centralized economy. But the point is, economic and social rights, such as a right
to social security, require legislative action, require legislative programs to be implemented by
the states concerned.

And so the Universal Declaration of Human Rights, although it does acknowledge the
interdependence, indivisibility, and equal importance of all rights, civil and political on the one
hand, economic, social, and cultural on the other hand, does already acknowledge that perhaps
economic and social rights, such as a right to social security, such as a right to food, such as a
right to housing, such as a right to work, such as a right to health, may require a different
approach. And that is essentially how the Universal Declaration of Human Rights has proceeded.

We will examine in the next video how in later years the United Nations built on the Universal
Declaration of Human Rights to implement the promises of the declaration into a number of
legally binding instruments, human rights treaties that form today the architectural human rights
within the United Nations.