Evangelia Linaki, LL.M. Student at Leiden University
The existence of the notion of human rights can be traced back to the Magna Carta Libertatum of the 13th century, which referred to individual liberties and rights ((Spickard, James, The Origins of the Universal Declaration of Human Rights, at 9 (1999), available at http://newton.uor.edu/FacultyFolder/Spickard/OnlinePubs/OriginUDHR.pdf (accessed 7/7/2013).)). Despite its early roots, International Human Rights Law would have to undergo many changes and experience devastating historical circumstances on its way to gain its today form. Within the many milestone moments of this evolutionary journey, one could easily discern that of the adoption of the Universal Declaration of Human Rights by the General Assembly on 10 December 1948. What would be interesting, and will be treated in the next lines, is to catch a glimpse of the way in which this document emerged and was drafted.
As a first step, one should go back to the drafting of the Charter of the United Nations (UN), which was ultimately signed on 26 June 1945 in San Francisco. Before that date, nevertheless, several meetings were held among the leaders of major States, especially those of the United States, the United Kingdom and the USSR, in order to determine the foundations upon which the new organization of United Stations would stand. It should be highlighted that the Great Powers were not intending to make human rights one of the core issues for discussion ((Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, at 9-10 (2001).)). That is proved by the fact that only the American leader, Franklin Roosevelt was insisting on the promotion of human rights, whereas specific national interests were to be served by the other Great Powers, such as the Soviet objective of maintenance of its frontier status quo and the British desire for dissolution of the Soviet influence in Europe ((See id., at 4-10.)).
However, smaller nations together with non-governmental organisations would highly contribute to underlining the importance of human rights ((For more details see id., at 11-18 and Korey, William, NGOs and the Universal Declaration of Human Rights, at 29-50 (1998).)). It is to be noted that even a draft of a bill of human rights was submitted by Panama, Chile and Cuba, with the aim of it being incorporated in the Charter ((Morsink, Johannes, The Universal Declaration of Human Rights: Origins, Drafting and Intent, at 2 (1999).)). Apart from the abovementioned pressure, the Nuremberg Tribunal, which would try war criminals, was agreed to be established, thus, giving the struggle for the promotion of human rights a new impetus ((Glendon, supra note 2, at 16-17.)). However, the turning point is to be found in the dropping of the objection to the naming of specific commissions in the Charter on the part of the United States, a fact which ultimately leaded to this State’s working towards the inclusion of human rights and their respect as one of the purposes of the new organization ((Johnson, M. Glen, The Contributions of Eleanor and Franklin Roosevelt to the Development of International Protection for Human Rights, 9 Human Rights Quarterly 19, at 26 (1987).)). In this way, Article 68 of the UN Charter was created, in which the establishment of a HRC by the Economic and Social Council (ECOSOC) is envisaged and such commission is the only one to have been specifically defined as such ((1948-1949 Yearbook of United Nations, at 525.)).
Consequently, the ECOSOC went on to establish a preparatory committee of the Human Rights Commission (HRC) on 15 February 1946 ((1946-1947 Yearbook of United Nations, at 523.)), which consisted of nine members in their personal capacity ((Glendon, supra note 2, at 30.))and whose mandate was to provide the ECOSOC with recommendations on the form the Commission should take ((United Nations, The Universal Declaration of Human Rights: An Historical Record of the Drafting Process, Nuclear Commission available at http://www.un.org/Depts/dhl/udhr/meetings_1946_nuclear.shtml (accessed 7/7/2013).)). This “Nuclear Commission” met from 29 April to 20 May 1946 ((1948-1949 Yearbook of United Nations, at 525.))and the outcome of such session consisted of three basic recommendations: the work of the Commission should be devoted to the drafting of an international bill of human rights ((UN Doc. E/38/rev.l (1946), at 3-4.)); the Commission should be composed of members not representing the member States ((See id., at 8.)); and the Secretariat should be instructed to compile all relevant and possible information ((See id., at 6.)). These recommendations were followed by the ECOSOC almost in their entirety with the exception of the second one. In response to the third recommendation, the Division of Human Rights was createdin the Secretariat ((1948-1949 Yearbook of United Nations, at 525.)), which would play an important role in the drafting of the Declaration.
Thus, the HRC was established on 26 June 1946 ((UN Doc. E/RES/9(II) (1946).))and was composed of representatives of eighteen member states ((The delegates of the first Commission were those of Australia, Belgium, Byelorussia, Chile, China, Egypt, France, India, Iran, Lebanon, Panama, Philippines, Ukraine, USSR, United Kingdom, United States, Uruguay and Yugoslavia. (Glendon, supra note 1, at 32.).)). During its first session from 27 January to 10 February 1947, the US representative, Eleanor Roosevelt, was unanimously elected chairman, whereas the posts of the vice chairman and rapporteur were occupied by the Chinese Peng-chun Chang and the Lebanese Charles Malik respectively ((Glendon, supra note 2, at 33.)). However, the work of the Commission was to be confronted right from scratch with great divergence among its members, since the rivalries of the Cold War were present, different opinions existed on philosophical and practical matters as well as to whether only a declaration or binding measures of implementation should be considered ((See id., at 35-45.)). Consequently, it was unanimously decided that a smaller drafting committee should be set up, in order to prepare a preliminary draft of an international bill of human rights ((UN Doc. E/CN.4/SR.12 (1947), at 5.)).
The Drafting Committee, originally composed of the chairman, the vice chairman, the rapporteur and the head of the Division for Human Rights, John Humphrey, appointed to John Humphrey the task to prepare a draft International Bill of Human Rights ((United Nations, The Universal Declaration of Human Rights: An Historical Record of the Drafting Process, Drafting Committee on an International Bill of Human Rights, 1st session,available at http://www.un.org/Depts/dhl/udhr/meetings_1947_1st_draftcom.shtml (accessed 7/7/2013).)). The newly enlarged Drafting Committee ((The new members of the Committee were representatives of Australia, Chile, France, USSR and the United Kingdom. (See id.)))would hold its first session on 9 June 1947 at the backdrop of the tense Soviet-American relations regarding the situation in China, the British decision to forfeit the Palestinian mandate and the Truman and Marshall Doctrines on the provision of financial support to European States, which met with the opposition of Eleanor Roosevelt ((Glendon, supra note 2, at 53-55.)). During this session, the Drafting Committee considered the draft submitted by John Humphrey, which included the most fundamental and widely recognized human rights ((See id., at 55-58 and UN Doc. E/CN.4/AC.1/3 (1947).)).
This draft brought up several comments, such as the Australian criticism on the lack of order among the articles and the British one on the draft’s comprehensiveness ((Glendon, supra note 2, at 58-59.)). After the proposal of the Russian delegate to establish a small group was accepted, a four-member group composed of the French delegate, René Cassin, the British one, Geoffrey Wilson, Charles Malik and Eleanor Roosevelt started working on the logical arrangement of the articles enclosed in the Humphrey’s draft and suggestions as to which articles should be included in the Declaration and the Covenant ((See id., at 60.)). It should be pointed out that it was René Cassin who was entrusted with the rearrangement of the articles ((Johannes, supra note 5, at 8.)). During the consideration of the newly arranged draft, the issue of choosing between a Declaration and a binding Covenant arose, a choice which was made in reality by the concentration on the review of the draft Declaration ((Glendon, supra note 2, at 69.)). Although multiple issues were left unresolved, such as the issues of social and economic rights ((See id., at 70.)), the Drafting Committee submitted to the HRC a draft of an International Declaration of Human Rights, draft articles to be included in a binding Covenant and a Memorandum on Implementation ((UN Doc. E/CN.4/21 (1947).)).
During the second session of the HRC, which took place between 2 and 17 December 1947 ((1948-1949 Yearbook of United Nations, at 526.)), the issue that immediately heated up the discussion was that of implementation measures ((Glendon, supra note 2, at 84.)). However, the US and USSR seemingly in agreement did not push for a binding instrument, since it would not be certain whether at that time it would be accepted by their governments ((See id., at 84-86.)). Due to the divergence on which document should be given priority, the Commission decided to set up three working groups, which would simultaneously work on the Declaration, the Covenant and the implementation measures ((UN Doc.E/CN.4/SR.29 (1947), at 12-15.)).
The working group on the Declaration managed to have a draft prepared by the time the Commission convened in full formation and great debate took place on Article 1 of the draft, enclosing the general statement with regard to human beings ((Glendon, supra note 2, at 89-91.)). At this point, there was a divergence as to whether men and women should be mentioned explicitly or not and whether reference should be made to God, whereas the Eastern communist bloc was insisting on including a provision which would deprive individuals acting contrary to the purposes of the UN from the right to asylum and nationality ((See id., at 89-92.)). The draft was finally adopted with no votes against but with the abstention of the communist bloc and it was also decided to distributeit to the governments of the UN members for further commenting ((UN Doc. E/600 (1947), para. 13.)).
The second session of the Drafting Committee took place between 3 and 21 May 1948, at a time when the US-Soviet relations were deteriorating, the American effort to achieve ceasefire of the civil war raging in China failed and the conflict in Middle East arose ((Glendon, supra note 2, at 99-107.)). The issue that took most of the Committee’s time was relevant to the delimitation between the traditional civil and political rights and the modern social and economic ones ((See id., at 115.)). The overall aim of the Committee was to take into account the comments made by governments and other UN bodies, butalso to render the Declaration clear and simple to understand by every individual, which was ultimately realised and enabled the Committee to submit a new draft of the Declaration to the next session of the HRC ((UN Doc. E/CN.4/95 (1948).)).
Between 24 May and 18 June 1948, the HRC devoted the entire session to examining each and every article of the Declaration, a process which boiled down to a re-drafted Declaration accepted without opposition ((UN Doc. E/CN.4/SR.81 (1948).)). The Declaration, therefore, reached the ECOSOC, which due to a big load of work decided to refer the draft to the plenary session of the organ with the aim of every member having the chance to comment and share their opinions ((1948-1949 Yearbook of United Nations, at 526.)). It was on 25 and 26 August 1948 that the Declaration was discussed by all members within the ECOSOC, a procedure which produced Resolution 151(VIII) and the reference of the draft Declaration to the UN’s plenary organ, General Assembly ((United Nations, The Universal Declaration of Human Rights: An Historical Record of the Drafting Process, Economic and Social Council, 7th session, available at http://www.un.org/Depts/dhl/udhr/meetings_1948_7th_esc.shtml (accessed 7/7/2013) and UN Doc. E/RES/151(VII) 1948.)).
On 24 September 1948, the UN General Assembly decided to refer the draft Declaration to its Third Committee on Social, Cultural and Humanitarian Affairs, which in turn dedicated 81 meetings discussing the document generally and in preciso with 168 formal drafts having been submitted during those meetings ((1948-1949 Yearbook of United Nations, at 526.)). It was acknowledged that this document would be just one of the many steps to be taken towards the promotion and elaboration of human rights ((UN Doc. A/C.3/SR.89 (1948), at 32.))and the importance put into it can be proved by the fact that a sub-committee with the aim of ensuring consistency of language and style was also established ((UN Doc. A/C.3/400/Rev.1 (1948).)). The draft was finally adopted on 9 December 1948 with no votes against and passed on to the plenary session of the General Assembly for the final adoption ((1948-1949 Yearbook of United Nations, at 529.)). The General Assembly dedicated the sessions of 9 and 10 December 1948 to the discussion of the Declaration, during which days several amendments were proposed and points of view were expressed ((See id., at 530.)). At a first stage, vote was taken for each article separately whereas the Universal Declaration of Human Rights was voted as a whole and adopted by 48 States in favor, no opposition and eight abstentions coming from the communist bloc, Saudi Arabia and the Union of South Africa ((See id., at 534-535.)).
As for the abstention of USSR, the main reason why it did not vote in favor of the Declaration was that it did not specify who is responsible for implementing human rights and especially the absence of a reference to the State as the main guarantor of human rights ((Johannes, supra note 5, at 21-23.)). As for the rest of the communist States, namely the Byelorussian and Ukrainian SSR, Czechoslovakia, Poland and Yugoslavia, they decided to abstain since their main aim – that of including a provision condemning Fascism and Nazism – was not achieved ((See id., at 23-24.)). Saudi Arabia, on the other hand, abstained due to the existence of provisions on equal marriage rights andone’s freedom to change their religion or belief, elements which by their nature are contrary to Muslims’ religion ((See id.,at 25-27.)). Lastly, the Union of South Africa claimed that the document encompasses too many human rights which were not originally envisaged by the UN Charter ((See id., 27-29.)). However, at that time practices of apartheid were common in South Africa and in no way would this State vote for a document which could be easily used to condemn such practice ((See id.)).
It is quite admirable that such an important document was produced at a time when the world was divided and several parts of the world experienced upheaval, elements which could not but affect the representatives taking part in the drafting process. Instead, the Universal Declaration of Human Rights, though not binding, still remains the most important document on human rights.