HUMAN RIGHTS OBLIGATIONS UNDER THE UNITED NATIONS CHARTER

Zenon Stavrinides, University of Bradford

Published in The International Journal of Human Rights, Vol. 3, No. 2, Summer 1999.

1. Introduction: A Problem of Interpretation

The former Secretary-General of the United Nations Dr Kurt Waldheim writes in his memoirs that "the
United Nations will go down in history as the first international organization to concern itself in a
sustained and serious way with the rights of all human beings", adding that "it is the principal agency
for focusing world attention on the gravest violations of such rights." 1 The Charter of the United
Nations in its Preamble reaffirms "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"; and in its
operating part contains no fewer than six articles with explicit references to human rights, making the
subject one of the central themes of the instrument.

However, Dr Waldheim notes a certain "ambivalence in the Charter established forty years ago [which]
persists to the present day. On the one hand Members pledge themselves to take joint and separate
action in co-operation with the Organization to promote universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
On the other hand, the Organization is not authorized 'to intervene in matters essentially within the
domestic jurisdiction of any state...' This provision is too often used to override any specific human
rights obligations a state may have accepted. When the Organization seeks to induce Members to
observe universal standards, it moves into a delicate and often inflammatory area of activity."2

The ambivalence of the Charter - committing the United Nations both to working for the establishment
of respect for human rights in all states, and also to refraining from interference in the internal affairs of
any state - is explained by the historical circumstances in which the instrument    was drafted and
signed. The representatives of the fifty governments of the anti-fascist alliance who met in San
Francisco between April and June 1945 to draft the Charter were well aware of the terrible violations of
human rights and general repression practiced by the enemy powers - Fascist Italy, Nazi Germany,
Japan and their lesser partners - against their own citizens and peoples in conquered countries before
and during the Second World War, and many of them wanted to make respect for human rights a matter

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of international concern; but they also wanted to re-establish the traditional principle of the sovereign
equality of all states, which had also been violated by these powers.

The ambivalence and the resulting tensions in the Charter gave rise from the beginning to a serious
problem of interpretation of the human rights provisions, and more specifically of the nature of the
obligations which these provisions imposed on the United Nations and its Members. With the start of
the Cold War in the late 1940s, politicians in various countries, as well as representatives of
governments at the United Nations, were often engaged in controversy as to whether some state or
states were fulfilling their obligations, and if not, what the Organization was to do about the matter. But
even disinterested scholars of proven integrity understood these obligations in different ways. For
example, Hans Kelsen, one of the earliest and most eminent commentators on the Charter, expressed
the view that "the function of the United Nations with respect to human rights is not very consistently
determined in [it]", and went on to argue that "the language used by the Charter in this respect does not
allow the interpretation that the Members are under legal obligations regarding the rights and freedoms
of their subjects."3 Georg Schwarzenberger, another important commentator, held that "in the Charter,
a clear distinction is drawn between the promotion and encouragement of respect for human rights, and
the actual protection of these rights. The one is entrusted to the United Nations. The other remains in
the prerogative of each Member State."4 A very different interpretation was provided by an equally
important jurist, Sir Hersch Lauterpacht, who wrote that the Charter of the Organization actually
imposes on the Member States the "legal duty to respect and observe fundamental human rights and
freedoms."5

Enough has been said to show that the human rights provisions of the United Nations Charter are
unclear in their meaning and implications as to raise a serious problem of interpretation. To this
problem, the present paper offers a modest contribution. The six provisions fall into two groups.
Articles 1(3), 55(c) and 76(c) set out the United Nations' purposes or objectives in relation to human
rights; an attempt will be made in the Section 2 to clarify the meaning of these provisions and trace out
in general terms their implications for the obligations which the Organization and its Members have
assumed under them. Articles 13(1)(b), 62(2) and 68 all relate to the powers and responsibilities which
various organs of the United Nations    have in the field of human rights; and these will be examined in
Section 3.                 

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2. The Promotion of Human Rights as a Purpose of the United Nations

According to Article 1(3), one of the purposes of the United Nations is

to 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.

It is self-evident that the Organization is obliged to pursue and try to realize its purposes. At the San
Francisco gathering the chairman of the United States delegation Secretary of State Edward Stettinius
expressed the sense of the Conference when he stated that the purposes listed in Article 1 of the Charter
"are binding on the Organization, its organs and its agencies, indicating the direction their activities
should take and the limitations within which their activities should proceed."6

Article 1(3) may be compared with a similar provision in Article 55:         

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:   
(a) .....
(b) .....
(c) universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.

Under Article 55(c), the United Nations is obliged to promote a certain end which is essentially
identical with the end which, under Article 1(3), the Organization is obliged to promote and encourage
by achieving international co-operation.7 In fact the two articles are more similar in meaning than they
may appear. On a superficial reading, the obligation imposed on the United Nations by Article 1(3)
relates to the achievement of international co-operation for the purpose of promoting respect for human
rights, whereas the obligation imposed by 55(c) relates directly to the promotion of this end itself.
However - as will soon become evident - there is no way in which the Organization can promote this
end except by means of international co-operation. The interesting difference between the two articles
is that Article 55, unlike the other one, contains a statement which connects (A) the promotion of

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respect for human rights, with (B) the creation of conditions of stability and well-being, and that with
(C) the establishment of peaceful and friendly relations among nations. Indeed, there is a strong
suggestion that the justification of (A) is that it conduces to (B), and that of (B) is that it conduces to
(C). The statement reflects the theory, which many people in the United States and other Western
countries accepted during and after the Second World War, that violations of human rights (such as
those that had been practiced by the Fascists, the Nazis and their partners) lead to misery and
instability, which in turn may endanger the peace of the world.

These two articles may now be compared with Article 76, which states "the basic objectives of the
trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1."
These objectives include:

(a) to further international peace and security;

(b) .....
(c) to encourage respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion...
(d) .....

Objective (c) concerns the encouragement of a certain end which is identical with the end referred to in
Article 1(3), and also is essentially identical with that in Article 55(c). By Article 76(c) the United
Nations, under whose authority the trusteeship system functions, is obliged to encourage the realization
of this end. The practical effect of 76(c) is simply to emphasize that the general obligation which the
Organization assumes under the two other human rights provisions, applies in relation to trust
territories too. Respect for human rights is (at least according to the theory implicit in Article 55)
conducive to international peace, which is the first objective of the trusteeship system, as indeed of the
United Nations itself.

Granted that the United Nations is obliged by its own Charter to pursue the purpose or objective of
promoting and encouraging respect for human rights, what obligation does this fact impose on the
Member States? A general kind of understanding of the matter may be achieved by considering certain
provisions in Article 2 of the Charter. The article begins with the words: "The Organization and its
Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following

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Principles" - and proceeds to specify seven principles. In the present connection, the most significant of
the principles are the following:

(1) All Members, in order to ensure to all of them the rights and benefits resulting from
membership,    shall fulfil in good faith the obligations assumed by them in accordance with the
present Charter.
(2) All Members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter...
(3) Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state...

It may be argued that paragraph (2) merely affirms the Members' general obligation to fulfil their
various obligations under the Charter - which is tautological and superfluous. 8 However, it is important
to point out that the principle expressed in the paragraph is linked to, and must be read in conjunction
with, the introductory words which refer to the purposes of the United Nations. The underlying idea is
that the United Nations' purposes, or rather the requirement and duty of the Organization to pursue
them, imply for all the Members certain relevant obligations. What obligations? A general sort of
answer is suggested by paragraph (5), namely: obligations in the form of giving assistance to whatever
the Organization does in pursuit of its purposes. This must be taken to mean that Member States ought
not only to refrain from obstructing the efforts of the Organization, but also to participate actively in
these efforts. If Member States merely refrained from being obstructive, but they never did anything
positive in connection with the purposes of the Organization, nothing much would ever be achieved. It
follows, then, that the obligation of the United Nations to make efforts to develop international co-
operation for the purpose of promoting respect for human rights implies that all Member States have an
obligation to participate actively in these efforts.

Nothing more specific can be established from a study of Article 2 about the Member States' human
rights obligations, except a negative point contained in paragraph (7). According to this paragraph, the
United Nations has no authority to undertake any action which constitutes an intervention in the
domestic affairs of any state. In other words, the Organization is not permitted by its Charter - and
therefore it is not obligated - to impose on any state, or compel it to accept, any arrangements in its
internal administration or its relations to its own inhabitants, for whatever purpose. It was clearly

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understood by the authors of the Charter that whereas the United Nations and its Members should
assume obligations for the promotion of respect for human rights, the actual observance of human
rights was primarily the concern of each state.9

The above conclusion receives confirmation from one specific provision of the Charter which imposes
directly of Member States a number of obligations relating to United Nations purposes. This is Article
56, which lays down that:

All Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55.

The meaning of this article, in so far as it relates to Article 55(c), is clear: it amounts to the proposition
that each Member State is under the obligation to take (a) action together with one or more Member
States, and (b) separate action, always in co-operation with the United Nations, for the purpose to
promoting human rights.10

3. The Fulfilment of Human Rights Obligations by the United Nations and its Members

The question now arises: What specific kinds of action are the United Nations and the Member States
required to take in fulfilment of their human rights obligations under the Charter? To answer this
question it is necessary to understand what the Organization and its Members can do in this regard; in
other words, what relevant powers and means they have at their disposal. It would be quite
unreasonable to suppose that the United Nations may be charged by its Charter with obligations which
come into conflict with Article 2(7), or which are beyond the powers and means granted to it by the
same instrument.

The United Nations organs which are most closely associated with the promotion of respect for human
rights are the General Assembly and the Economic and Social Council (ECOSOC). The relevant
powers of these organs are mentioned explicitly in three articles. According to Article 13(1)(b):

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 The General Assembly shall initiate studies and make recommendations for the purpose
of...assisting in the realization of human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.

Article 62(2) provides that the Economic and Social Council

...may make recommendations for the purpose of promoting respect for, and observance of,
human rights and fundamental freedoms for all.

Again, Article 68 states that:

The Economic and Social Council shall set up commissions in economic and social fields and
for the promotion of human rights...

Besides these articles, there is also Article 10 which empowers the General Assembly to "discuss any
questions or any matters within the scope of the present Charter" - and these must be taken to include
questions and matters relating to human rights. Further, according to Article 62(3) and (4), ECOSOC
may prepare draft conventions for submission to the General Assembly and call international
conferences on matters falling within its competence - which cover human rights issues. Finally, under
Article 88 the Trusteeship Council has some limited powers to inquire into political, economic, social
and educational conditions in trust territories, and these conditions clearly bear in various ways on the
human rights of their inhabitants.

From the above review it appears that the powers which the various United Nations organs have for the
promotion of respect for human rights are of three basic and interconnected types.    They are:

(A) powers to study - which include, most importantly, powers to investigate and collect
information;
(B) powers to prepare reports, recommendations and draft conventions; and
(C) powers to debate.

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These are the only relevant powers of the Organization, and they determine the range of action it can
take to fulfil its obligations under Articles 1(3), 55(c) and 76(c) to promote respect for human rights. So
the best the Organization can do is to exercise these powers as effectively as possible to initiate the
kinds of studies, reports, debates etc which are most likely to lead to the establishment of respect for
human rights everywhere.

It is important to be clear as to exactly what is involved here. It goes without saying that in the last
analysis only human beings can make studies, write reports and hold debates. When one refers to the
United Nations and its organs as the initiators of studies, reports, debates etc, one refers obliquely to
representatives of Member States coming together and, with the authority and on the instructions of
their governments, co-operating through the various organs in making studies, writing reports, and
holding debates. A minimal co-operation among representatives is necessary to bring life to these
organs, to make them (as they are intended to be) instruments of United Nations action. And if these
organs are to function effectively, and carry out satisfactorily such tasks as debating human rights
violations in particular countries and recommending relevant remedies, or undertaking studies,
collecting information and publishing reports on various human rights problems, or again drafting
conventions for the protection of groups of human rights (to mention examples of the types of work
which the United Nations has actually been carrying out for decades), then a high level of co-operation
is necessary.

Such co-operation requires that the representatives of Member States, with the assistance of the
Organization's Secretariat, contribute information, ideas and arguments to the discussion of human
rights questions; try to understand and approach each other's point of view and to increase areas of
agreement; and generally strive in good faith to reach, if possible, a common position which will
command the support of many governments and peoples all over the world. Thus under Articles 1(3),
55(c) taken in conjunction with 56, and 76(c), Member States must be taken to have an obligation
(among others too) to appoint to the United Nations able and knowledgeable representatives, and to
instruct them to work with others constructively and effectively in ways provided for by the Charter,
with a view to promoting respect for human rights everywhere.

What is to promote respect for human rights everywhere? Basically it is to work to bring about a
certain state of affairs in which respect for human rights is established or secured in every part of the

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world by means of suitable and effective legislative and administrative measures. In other words,
wherever there are human beings - in independent countries, or in colonial, trust or other dependent
territories - their human rights are to be protected by law and administrative policies, with the support
of an appropriate machinery of courts, police and penal institutions, as well as a system of health, social
and educational services. As was already indicated, the United Nations cannot normally force states to
adopt the measures necessary for securing respect for human rights, or to accept its recommendations
for remedying human rights violations, or to ratify and implement human rights conventions prepared
and adopted by it. What is open to the United Nations is to try to persuade or induce states to do these
things, by using good arguments and exercising its moral authority. The term 'moral authority' refers to
the highly regarded status of the United Nations as a universal organization whose resolutions - as
expressions of world opinion - even when they are not legally binding on Member States carry
considerable moral weight. States generally like to present themselves as respecters of the United
Nations and its resolutions, and no state will ignore them lightly.

An example may illustrate how the moral authority of the United Nations works. Let it be supposed
that that the General Assembly passes by a two-thirds majority a resolution which declares that certain
sorts of practices constitute racial discrimination and calls for their eradication    wherever they exist.
Let it also be supposed that the minority of states which voted against the resolution have these
discriminatory practices and have no wish to eradicate them. What can the United Nations do to
achieve general compliance with its recommendation - for that is the character of General Assembly
resolutions - despite the inclination of the minority of states to disobey? It must be appreciated that the
fact that the resolution has been passed and has the authority of the world body carries weight with the
minority of states, and this acts against their inclination to disobey. The Organization can increase this
weight by publicizing widely the resolution; asking Member States to provide information as to what, if
anything, they have done about eradicating the discriminatory practices; publishing this information;
holding conferences and debates; preparing and disseminating material to highlight the obnoxious
nature and social effects of these practices and drawing attention to the fact that a number of states still
permit them; and undertaking other kinds of activities too to mobilize international public opinion.

All these measures make it to a greater or lesser extent difficult for the minority of states to defy the General Assembly
resolution, and allow themselves to fall out of step with the civilized world, which is by and large willing to abide by it.
Such measures are unlikely to generate sufficient pressure to bring about desired changes in states which are steadfastly

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determined to defy the resolution; but they may have a decisive influence on the less determined states - particularly if
considerable sections of their populations are against the discriminatory practices.
4. Concluding Remarks

In summary it may be said that the Charter imposes on the United Nations the obligation to initiate
international co-operation, and on the Member States the obligation to participate actively and in good
faith in such co-operation, for the purpose of promoting respect for human rights and fundamental
freedoms for all, by bringing about the adoption of suitable legislative and administrative measures in
all independent states and dependent territories. Indeed, the whole United Nations system may be seen
as a framework of organs, agencies and other formal institutions, operating under international law, for
the achievement of international co-operation in pursuit of the various purposes of the Organization.
Co-operation for the promotion of human rights, carried out through the appropriate organs - basically
the General Assembly and ECOSOC together with its Commission on Human Rights - may take a
variety of forms, which must always be consistent with the principle of non-intervention in the
domestic affairs of any state. Among permissible forms of co-operation are:

(A) conducting studies and investigations, writing reports, holding debates etc on human rights
problems, and in due course preparing recommendations and draft conventions embodying measures
for the protection of human rights; and
(B) exercising as effectively as possible the moral authority of the Organization with a view to
persuading or inducing all states to accept the recommendations and ratify the conventions.

It has been noted by several commentators that the Charter is unsatisfactory as regards its human rights
provisions, because it nowhere specifies these rights.11 The point itself is correct, but there is a danger
that its significance may be exaggerated. For the representatives of the fifty governments who met in
San Francisco in 1945 to write and sign the Charter, like the parliamentarians in the signatory states
who ratified it - indeed, like most people in civilized countries - did share a common understanding of
what were the most basic human rights, broadly defined. A tradition of liberal thought going back to the
17th century - finding expression in the English Bill of Rights of 1689, the American Declaration of
Independence of 1776 and the Constitution of 1789 together with the Bill of Rights of 1791, the French
Declaration of the Rights of Man and the Citizen of 1789, and a host of Constitutions adopted by
European and Latin American countries in the 19th and 20th centuries - was the common political
heritage of the nations which fought the Fascists, the Nazis and their partners during the Second World
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War. So nobody could say in good faith in San Francisco or in the United Nations that, as the Charter
did not specify any human rights, he did not really know whether the Organization and its Members
had an obligation to promote universal respect for, and observance of, the right to life, liberty and
security of person. It was precisely because of this common political heritage that the Commission on
Human Rights was able to prepare, and the General Assembly on December 10, 1948 adopted without
a dissenting voice, one of the most remarkable and influential political documents of all times, the
Universal Declaration of Human Rights. This document has come to be regarded, quite properly, as an
authoritative interpretation of the human rights provisions of the United Nations Charter.

NOTES

1. Kurt Waldheim, In the Eye of the Storm (London: Weidenfeld and Nicolson, 1985), p. 134.

2. Ibid.

3. Hans Kelsen, The Law of the United Nations (London: Stevens & Sons Ltd., 1951), p. 29.

4. Georg Schwarzenberger, Power Politics, 3rd Ed. (London: Stevens & Sons, 1964), p. 462.

5. Hersch Lauterpacht, International Law and Human Rights (London: Stevens & Sons, 1950), p. 147.

6. Quoted in L.M. Goodrich, E. Hambro and A.P. Simons, Charter of the United Nations: Commentary
and Documents, 2nd Edition (New York and London: Columbia University Press, 1969), p. 25.

7. There is no doubt that the ends to be promoted by the United Nations according to Articles 1(3) and
55(c) are identical. Differences in their wording are unimportant and are attributable to the fact that
their final formulations were based on different texts, prepared by different delegations and amended
by different sub-committees. See Ruth B. Russell, A History of the United Nations Charter
(Washington, D.C.: Brookings Institution, 1958), p. 783.

8. Kelsen, op. cit., p. 88.

9. However, it was also understood that if a state practices violations against the human rights of its
own inhabitants so as to create conditions which threaten peace, then the matter ceases to be its sole
concern. Under such circumstances the Security Council may consider that it has the authority to
take action against that state. See Kelsen, op. cit.., pp. 29 f.

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10. The authors of the Charter quite deliberately excluded from the scope of this obligation
'national' action, that is action taken by a single state independently of the Organization. Their
express intention was to confine the obligations of Member States to the sphere of international,
United Nations-initiated action. The very interesting legislative history of Article 56 is recounted in
Russell, op. cit., pp.786-8.

11. See e.g. Kelsen, op. cit., pp. 29 f.

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