N deemed under international law to be matters within the domestic jurisdiction of The UN Charter does not contain a definition or a list of "human rights and Among the UN instruments to which one must look to determine what specific rights are today deemed to be "human rights and fundamental freedoms" within the meaning of the UN Charter are the Universal Declaration of Human Rights and the two International Covenants on Human Rights. These are the very instruments that the UNESCO Recommendation mentions expressly in its definition of human rights. There are also numerous other international human rights instruments that have their source in the UN Charter. Most important among these for our purposes are the Genocide Convention, the International Convention on the Elimination of All Forms of Racial Discrimination, the UNESCO Convention against Discrimination in Education, the UN Declaration on the Elimination of Discrimination against Women, and the UN Declaration of the Rights of the Child. (A list of major international human rights instruments is reproduced in the Appendix.) B The Universal Declaration The Universal Declaration of Human Rights was adopted unanimously by the UN General Assembly on December 10, 1948. As a statement of principle and human aspirations, the Universal Declaration has much in common with the Magna Carta, the French Declaration of the Rights of Man, the American Declaration of Independence, and the U.S. Bill of Rights. The Universal Declaration must be ranked with these great historic documents, if only because it is the first comprehensive codification of internationally recognized human rights. Its debt to these milestones in the quest for freedom is unmistakable. "All human beings are born free and equal in dignity and rights," proclaims Article 1 of the Universal Declaration, and Article 28 adds that "everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized." B The Declaration's list of civil and political rights includes the "right to life, liberty and security of person;" the prohibition of slavery, of torture and "cruel, inhuman or degrading treatment;"' the right not to be subjected to arbitrary arrest, detention or exile; the right to a fair trial in both civil and criminal matters, the presumption of innocence and the prohibition against the application of ex post facto laws and penalties. The Declaration recognizes the right to privacy and the right to own property. It proclaims freedom of speech, religion, and assembly. The Declaration acknowledges the right to freedom of movement and provides in Article 13 that "everyone has the right to leave any country, including his own, and to return to his country." This provision is supplemented by the right "to seek and to enjoy in other countries asylum from persecution" and the right to a nationality. Among the stipulations relating to family life is Article 16, which declares that "men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family." It also provides that "marriage shall be entered into only with the free and full consent of the intending spouses." Important political rights are proclaimed in Article 21 of the Declaration. Among these is the individual's right "to take part in the government of his country, directly or through freely chosen representatives." This provision also declares that the "will of the people shall be the basis of the authority of government." To this end, it requires "periodic and genuine elections" by universal suffrage. Economic, Social and Cultural Rights The economic, social and cultural rights proclaimed in the Declaration have their starting point in the proposition expressed in Article 22: Everyone, as a member of society . . . is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensible for his dignity and the free development of his personality. In accordance with this proposition the Declaration proclaims the individual's right to social security, to work, and to "protection against unemployment," to "equal pay for equal work," and to "just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection." The right "to rest and leisure, including reasonable limitations of working hours and periodic holidays with pay" is recognized in Article 24. Article 25 of the Declaration proclaims that everyone has the right "to a standard of living adequate for the health and well-being of himself and of his family." It also recognizes the individual's right "to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control." The right to education is dealt with in Article 26 of the Declaration which provides, among other things, that education shall be free "at least in the elementary and fundamental stages." It established a “prior right" of parents "to choose the kind of education that shall be given to their children." Moreover, Article 26 also declares that Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. It is important to note that this objective of education finds expression, in identical language, in the first "Guiding Principle" of the UNESCO Recommendation. 2 Article 27 of the Declaration deals with cultural rights. Among those that are proclaimed is the important principle that every human being has “the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." 3. Limitations on the Exercise of the Rights The Declaration recognizes that the rights it proclaims are not absolute and permits a state to enact laws limiting the exercise of these rights, provided their sole purpose is to secure "due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." (Art. 29(2).) A government's authority to impose such restrictions is further limited by the rule laid down in Article 30 that "nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms proclaimed in the Declaration." A government would be deemed to have violated this provision if, for example, it used its power to impose lawful restrictions and limitations on the exercise of certain human rights solely for the unlawful purpose of denying such rights. 4. The Legal and Political Effect of the Universal Declaration Over the years there has been considerable debate among international lawyers about the legal force of the Universal Declaration. Since it is not a treaty and was adopted in the form of a non-binding resolution of the UN 7 General Assembly, some governments and lawyers have contended that it has no legal force. Others have argued that the Universal Declaration is an authoritative interpretation or definition by the UN Member States of the "human rights and fundamental freedoms" which, under the UN Charter, these states are under a legal obligation to promote. This latter view has over the years gained wide acceptance among international lawyers and, in theory at least, a majority of governments as well. Among the numerous official government statements substantiating this conclusion is the highly authoritative "Proclamation of Teheran," adopted at the UN-convened International Conference of Human Rights, which met in Teheran in 1968 and was attended by representatives of approximately 100 governments. It declares that "the Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community." (Emphasis added) This proposition has been repeatedly reaffirmed in and by the United Nations. 5 4 The repeated assertions by governments, whether for purposes of propaganda or out of genuine conviction, that the rights proclaimed in the Universal Declaration are fundamental and inalienable, have clothed that instrument with great symbolic significance. One of the consequences of this development is that people around the world have increasingly come to believe that governments should respect the human rights proclaimed in the Universal Declaration and that they have an international obligation to do so. Since the political pressure that domestic and world public opinion generate is often the only available remedy to prevent large-scale violations of human rights, the legal character of the Universal Declaration is less important than the strongly-held conviction of millions of individuals in all parts of the world that the Universal Declaration proclaims their rights and that governments have pledged to respect these rights. C. The International Covenants on Human Rights The Covenant on Economic, Social and Cultural Rights and the Covenant on Political and Civil Rights were formally adopted by the UN General Assembly in December 1966, eighteen years after the UN had begun to draft these treaties. Another decade passed before thirty-five states the number required to bring the Covenants into force ratified both Covenants. The Covenant on Economic, Social and Cultural Rights went into effect on January 3, 1976, and the Covenant on Civil and Political Rights on March 23, 1976.* The Covenants were designed to transform the principles proclaimed in the Universal Declaration into binding treaty obligations. This meant that the lofty rhetoric of the Declaration had to be translated into precise statutory language and that exceptions, limitations and restrictions on the exercise of various rights had to be spelled out in detail. The Covenants were also designed to establish an international machinery to supervise and enforce the application of the guaranteed rights. Given the great reluctance of many governments to assume * The U.S. has thus far ratified neither these nor most other human rights treaties. The U.S. positions on this and related issues are discussed in Chapter 5, infra. unambiguous international obligations to safeguard human rights and to accept effective international controls for their enforcement, it is not surprising that the process of drafting the Covenants remained for many years bogged down in endless legalistic squabbles and parliamentary maneuvers. That the Covenants were ultimately adopted and that they have now entered into force is a significant accomplishment, notwithstanding the fact that a strong system of international controls had to be sacrificed to achieve it. 1. Substantive Provisions Common to Both Covenants The Covenants have a number of common substantive provisions. Two of these deal with what might be described as "group" or "collective" rights, to distinguish them from so-called individual rights. Thus Article 1(1) of both Covenants proclaims that "all peoples have the right of self-determination."' Both instruments in Article 1(2) also recognize the right of "all peoples" to freely dispose of their natural resources and that “in no case may a people be deprived of its means of subsistence." These provisions reflect the special concerns of the developing and newly independent countries whose influence was minimal in 1948, when the Universal Declaration was being drafted, but who by 1966 had already gained a significant voice in the UN. Both Covenants also bar discrimination, in the enjoyment of the rights they guarantee, based on race, color, sex, language, religion, political or other opinion, national or social origin, property, or birth. 2. Covenant on Civil and Political Rights The catalog of civil and political rights spelled out in the Covenant on that subject is more precisely formulated and somewhat longer than the list of comparable rights that the Universal Declaration proclaims. An important addition is the provision which bars states from denying members of ethnic, religious or linguistic minorities the right, "in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." (Civil and Political Covenant, Art. 27.) Other rights guaranteed in the Covenant on Civil and Political Rights that are not expressly mentioned in the Universal Declaration, include freedom from imprisonment for debt; the right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person; and the right of every child "to acquire a nationality” and to be accorded "such measures of protection as are required by his status as a minor, on behalf of his family, society and the State." (Art. 24.) Among the rights that the Universal Declaration proclaims, but which the Covenant on Civil and Political Rights does not guarantee, are the right to own property, to seek and enjoy asylum and to have a nationality. The right to own property was not included in the Covenant because the various ideological blocs represented in the UN were unable to reach a consensus on the scope and definition of this right. |