INTERNATIONAL LAW
To Remember and Hope

By Jerome J. Shestack

On December 10, 2008, we celebrated the 60th anniversary of the Universal Declaration of Human Rights (Univer-sal Declaration), a seminal document in the struggle for human dignity and freedom. For the first time, it brought human rights into the domain of international law as part of a just rule of law. The Universal Declaration sets forth two categories of human rights. Articles 2-21 deal with civil and political rights. Articles 22-28 deal with social, economic, and cultural rights.

The real impetus for international protection of human rights arose from the tragedy of the Nazi experience and the Holocaust. The prevailing jurisprudential theories prior to World War II left the individual completely subject to the sovereign state, with no protection in international law. But even before the war ended, the vision of a world view encompassing human rights was expressed by President Franklin Delano Roosevelt in his 1941 State of the Union address declaring the Four Freedoms. The first is freedom of speech and expression. The second is freedom of every person to worship God in one’s own way. The third is freedom from want. The fourth is freedom from fear. Roosevelt was not alone in his vision. Prior to the seminal San Francisco conference on April 25, 1945, initiating the United Nations (UN) Charter, a number of organizations had advanced proposals for a new world approach that in-cluded human rights. These initiatives advocated a renaissance of human rights philosophy based on the Kantian concept of natural necessity (i.e., prescribing a minimum standard of what it meant to be human in society).

The UN Charter.

Strikingly, the UN Charter did not include the particulars later found in the Universal Declara-tion. But the charter did pave the way. Thus Article 1(3) of the charter states that one of the purposes of the UN was "promoting and encouraging respect for human rights and for fundamental freedom for all without discrimination as to race, sex, language or religion." Articles 55 and 56 call for "universal respect for and observance of human rights and fundamental freedom for all" and require states "to take joint and separate action" in cooperation with the or-ganization to accomplish human rights observance.

Despite the paucity of these provisions, they had important consequences. First, the UN Charter internationalized human rights. Second, the obligation of member states to promote human rights provided the authority for the codi-fication of rights. Third, it clarified the member states’ obligation to promote human rights.

As a result of these articles, the new United Nations established a Commission on Human Rights whose first task was to draft what became the Universal Declaration.

The UN Commission on Human Rights.

The newly formed commission worked on the task of writing the Uni-versal Declaration of Human Rights for two years. There were disputes over every article. For example, it was pro-posed that the very first article read, "All men are created equal." But the Soviet delegate objected because that lan-guage implied that there is a divine Creator. The French delegate proposed, "All men are brothers." But, an Asian delegate said, "You tell us that ‘men’ includes men and women, but our government will say it means just men. . . ." The words were finally changed to "All human beings are born free and equal in dignity and rights." This was ac-cepted by all.

Covenant or declaration?

From the start, a key issue before the commission was whether the document was to be a covenant or a declaration. A covenant is a treaty requiring adoption by the member states. It is binding in law and contains measures for implementation. A declaration is a manifesto of principles and does not include imple-mentation. It is much easier for a nation to disregard a declaration than a ratified covenant.

Many delegations felt that a covenant was called for. Eleanor Roosevelt, appointed to the U.S. delegation by President Harry Truman, was aware of congressional opposition to any covenant, particularly from the powerful Southern states; many Southern whites believed that the UN might help African Americans in their fight against segregation. She concluded that a covenant would not win Senate approval and instead proposed that the declaration be separate from a covenant that would deal with implementation. Two drafts, one a declaration, the other a cove-nant, were then circulated to the members.

By June 1948, the commission had completed its deliberations. The commission’s draft was then sent to the Third Committee of the UN, which held more than 80 meetings before finally adopting the declaration.

December 10, 1948.

The final stage was in the Plenary Session of the General Assembly. About midnight on December 10, 1948, the declaration was adopted by a vote of 48 to 0, with eight abstentions. The abstentions were by the communist nations, as well as Saudi Arabia (the latter owing to provisions on equal marriage rights and the right to change one’s religious belief). Never before had so many nations agreed to vest so many rights in so many people. Eleanor Roosevelt received a standing ovation and many kudos. She told the assembly that she hoped the declaration would be "the Magna Carta of all mankind." Charles Malik, the representative from Lebanon, said of her that "I do not see how we could have accomplished what we actually did without her presence."

Impact of the declaration.

Over the years, the declaration has been relied on by governments and by inter-governmental and non- governmental organizations so often as to qualify for the status of international customary law. Additionally, the declaration has been enormously influential in building the edifice of modern international law.

The International Covenant on Civil and Political Rights fleshed out the first 21 Articles of the Universal Declaration, known as the "negative" rights of the declaration. The International Covenant on Economic, Social and Cultural Rights fleshed out the second category of rights in the declaration, often referred to as the "positive" rights. To be sure, it took 18 arduous years before these covenants were finally adopted by the UN. Nevertheless, they were adopted.

Other human rights covenants also developed based on articles in the declaration. These include the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Discrimination Against Women; and the Convention Against Torture. And human rights treaties on virtually every subject of human rights are still developing. Thus, it can be fairly said that the Universal Declaration is the father and mother of the modern law of international human rights.

On this 60th anniversary we should hail the substantive law of international human rights created by the Universal Declaration. We can also hail the progress that has been made in many nations to observe the declaration, or at least parts of it. These are not trivial achievements. But one must bewail the slow pace of the declaration’s implementation. History has given us the law, but implementation is still too much deferred, too much in the realm of hope. As we celebrate this anniversary, let us aspire to the time when history and hope can converge.
FOR MORE INFORMATION ABOUT THE SECTION OF INTERNATIONAL LAW
- This article is an abridged and edited version of one that originally appeared on page 1 of International Law News, Winter 2009 (38:1).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to www.ababooks.org.
- Website: www.abanet.org/intlaw.
- Periodicals: The International Lawyer, quarterly journal; International Law News, quarterly newsletter.
- Books and Other Recent Publications: Careers in International Law, 3d ed.; Labor and Employment Law in the New EU Member and Candidate States; China Law Deskbook, 2d ed.; The Foreign Corrupt Practices Act and the New International Norms; Negotiating and Structuring International Commercial Transactions, 2d ed.; ABA Guide to International Business Negotiations, 2d ed.; Joint Ventures in the International Arena; ABA Guide to Foreign Law Firms, 4th ed.; International Lawyer’s Deskbook, 2d ed.; International Trademarks and Copyrights: Enforcement and Management, International Practitioner’s Deskbook Series.

Jerome J. Shestack serves as co-chair of the ABA Center for Human Rights. He may be reached at jshestack@schnader.com.

Copyright 2009

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