1 The Charter of the United Nations
The end of World War II saw the creation of the United Nations. Its Charter is a global pronouncement that both displays the aspirations of mankind for peace among nations76 and establishes the conditions under which the obligations of justice and international
72 Philadelphia Declaration of 10 May 1944, Declaration Concerning the Aims and Purposes of the International Labour Organization, Annex to the Constitution of the ILO, ILO Constitution 15 UNTS 40:
"The General Conference of the International Labour Organization (...)reaffirms the fundamental principles on which the Organization is based and, in particular, that- (...) (c) poverty anywhere constitutes a danger to prosperity everywhere; (d) the war against want requires to be carried on with unrelenting vigor within each nation, and by continuous and concerted international (...) Believing that experience has fully demonstrated the truth of the statement in the Constitution of the International Labour Organization that lasting peace can be established only if it is based on social justice, the Conference affirms that- (a) all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity; (b) the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy; (c) all national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective;(...) The Conference recognizes the solemn obligation of the International Labour Organization to further among the nations of the world programmes which will achieve: (a) full employment and the raising of standards of living; (b) the employment of workers in the occupations in which they can have the satisfaction of giving the fullest measure of their skill and attainments and make their greatest contribution to the common well-being; (g) adequate protection for the life and health of workers in all occupations; (h) provision for child welfare and maternity protection; (i) the provision of adequate nutrition, housing and facilities for recreation and culture; (j) the assurance of equality of educational and vocational opportunity. " Emphasis added.
73; Nowak above note 1, p. 141.
74 ILO Declaration on Fundamental Principles and Rights at Work, adopted in Geneva 18 June 1998, 37 ILM 1233 (1998).
75 See below Part V, Chapter 1 in labour .
76 See UN Charter Status of ratification in United Nations Treaty Collection, available at:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-1&chapter=1&lang=en last visited 25.April 2012. Status 193 Members -49 original Members, 144 according to Article 4
law are to be observed.77 The Charter constitutes the legal basis of the obligation of its members to protect and promote the fundamental rights of the human being.78 Indeed, it is the first international treaty to base its aims on a universal respect for human rights.79 It is a resolute (united nations) affirmation of faith in human rights, the dignity and worth of the human person, and the equal rights of men, women, and nations, as the true ground on which to base the aspirations of mankind.80 Human rights, understood as a positive expression of the contemporary concerns of international justice, is an idea that runs throughout the United Nations Charter of 1945.81 Although the Charter does not define the human rights that State Members are bound to observe82, it does contain various provisions directly related to human rights. The human rights element finds its principal expression in the relationship between peace, international security, and improvement in social and economic conditions (standard of living) through respect of human rights. This relationship may be observed in the Preamble to Article 1—
particularly Article 1(3)—Article 55, and Article 56. The preamble states that one of the purposes of the UN is "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion".
Article 55(3) is still more explicit when it expresses that, with a view to creating conditions of stability and well-being so as to favour peaceful and friendly relations among nations, the UN shall promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion". Interestingly, Article 55(1) of the UN Charter also establishes that, in order to achieve such objectives, the United Nations shall promote "higher standards of living, full employment, and conditions of economic and social progress and development."83 In addition, the UN Charter serves as the legal basis for the UN Charter monitoring mechanisms, bodies such as the Human Rights Council that replaced the Commission on Human Rights.
77 See Preamble, UN Charter.
78 René Cassin, "La Declaration Universelle et la mise en oeuvre de droits de l'homme" Académie de Droit International, Recueil des Cours/ Collected Papers of the Hague Academy of International Law1951, Vol.79 No.2, p. 245.
79 The United Nations and Human Rights 1945-1995. The United Nations Blue Books Series, 1995 Vol.7 p. 5.
80 See Second recital, Preamble, UN Charter.
81 See Preamble, Arts 1, 13, 55, 56, 60, 62, 73, 76, 87, UN Charter.
82; Lauterpacht, above note 41, p. 17.
83 Cassin, above note 78, p. 248.
2 The Universal Declaration of Human Rights
On 10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights ("UDHR")84 as an expression of the common aspirations of the entire human family. This manifesto proclaimed a common universal standard towards which all humanity (or at least the declaring states) should strive. It is one of the most important pronouncements of the 20th century85 in that it constitutes one of the most relevant sources of inspiration for the respect and protection of the individual at a universal level. The set of rights found in the declaration correspond to a set of values the validity and nature of which is very much discussed in human rights scholarship. Its legal effects have also been widely discussed.86 With the UDHR, human rights are given a formal recognition in international law.87 Although the declaration was not adopted as a binding instrument of international law, as a non-binding instrument it nevertheless exercises great influence upon the formation of international customary law.88 Indeed, the principles and rights contained therein are now largely accepted as authoritative within the international community of states.89 The UDHR has even been cited by the International Court of Justice.90
Which is the importance of the UDHR? In contrast to the UN Charter where the phrase is used vaguely, one of the main achievements of the UDHR is a clear definition of
"human rights" in so far as it develops a catalogue of rights, in a precise legal language, that asserts human dignity as the crowning value and from which all other rights are
84 Universal Declaration of Human Rights adopted by UN's General Assembly in its Resolution 217 A (III) of 10 December 1948, UN Doc. A/810 at 71 (1948).
85 Louis Henkin, "The Universal Declaration at 50 and the challenges of global markets" Brooklyn Journal of International Law 1999 Vol. 25 No. 1, p. 18.
86 Buergenthal, above note 39, p. 33 See also Jochen von Bernstorff "The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law" The European Journal of International Law 2008 Vol. 19 No. 5, p. 924 Suggesting that the UDHR symbolizes" unity in an increasingly fragmented and contentious institutional and political environment".
87 Lauterpacht, above note 22, p. 880 The Belgian representative on the Third Session of the General Assembly. Official Records: "In certain circles, it had been said that the declaration of human rights was a purely academic document. That statement was erroneous, for the declaration had not only an unprecedented moral value, it has also the beginnings of a legal value".
88 Knut Ipsen, "Völkerrecht", 1999, pp. 680-683.
89 Jack Donnelly, "The Universal Declaration of Human Rights: Liberalism and an International Overlapping Consensus" in Theoretical Foundations of Humans Rights. Collected Papers, Second International Conference on Human Rights. 2003 pp. 699-722.
90 United States Diplomatic and Consular Staff in Tehran Case (United States of America v Iran) Judgement 24 May 1980 ICJ Reports 1979, para. 91 "Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights."
derived.91 Regarding its structure and substantive content, it is said that the UDHR resembles the portico of a temple92, the foundations of which are the Preamble and Articles 1 and 2. The Preamble recognizes that "the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". By virtue of Article 1 of the UDHR, "all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood". Besides asserting that human dignity is the source from which all human rights emanate, the UDHR also draws not only on classical civil and political rights inherited from the Enlightenment but also on economic and social rights influenced by the socialist and labour movement, based on the conviction that political, economic and social justice must go together as convictions universally shared among individuals regardless of difference in culture and circumstance. Regarding the structure of the UDHR, it is has been said93 to have four pillars. Its first pillar is constituted by Articles 3 to 11 and corresponds to rights and freedoms of a personal nature. The second pillar is constituted by Articles 12 to 17 and concerns the individual and his or her relationship to society.
The third pillar, from Article 18 to Article 22, corresponds to rights relative to the spiritual life of the individual, his public liberties and fundamental political rights. The fourth pillar is formed by economic, social, and cultural rights. Here it may be useful to cite Article 25, which states that:
"Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control."
In addition, Article 28 to 30 establish the general contour of human rights. These last articles refer to the duties of the individual towards society and establish the limits within human rights are to be realized. Here we appreciate the place given to another meaning of morality within the context of human rights. Article 29(2) provides that:
91 Henkin, above note 85, p. 19 See also Thomas Buergenthal, "Codification and implementation of international human rights in Human Dignity –The Internationalization of Human Rights- A H Henkin (ed.) 1979, p. 16.
92, Cassin, above note 78, p. 227.
93 Ibid., p. 278.
"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing 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."
An important characteristic of the UDHR is that it does not constitute a minimum standard or lowest common denominator but rather promulgates a common standard of achievement94, a "robust conception of the good".95
3 The International Bill of Rights, the two Covenants
The UDHR and the International Covenant on Civil and Political Rights96, with its two Optional Protocols, and the International Covenant on Economic, Social, and Cultural Rights97, together form the Bill of Rights. The Bill of Rights is the most substantial human rights compendium boosting universal application. Although the legal nature of the UDHR may be controversial, the two Covenants are without question international treaties of a binding nature. They are a corpus of positive, substantive rights, to which most states of the world are now signatories.
The International Covenant on Civil and Political Rights98 recognizes in its preamble that its rights derive from the inherent dignity of the human person. As in the UN Charter and the UDHR, it acknowledges in its Preamble that "the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world". It further recognizes that freedom from fear and want can only be achieved if the conditions for the enjoyment of civil, political, economic, cultural and social rights are created. On the one hand, Article 1 establishes the right to self-determination, which allows states freely to determine their political and economic development, States Parties to the ICCPR also undertake, on the other, to respect and to ensure to all individuals the civil and political rights established therein
94 United Nations, above note 79, p. 26.
95 Joy Gordon, "The concept of Human Rights: The history and meaning of its politization" Brooklyn Journal of International Law 1998 Vol. 23 No. 3, p. 705.
96 The International Covenant on Civil and Political Rights was adopted by the United Nation's General Assembly resolution 2200A (XXI) of 16 December 1966 entering into force 23 March 1976 Text at 999 UNTS 171 and 1057 UNTS 407.
97 The International Covenant on Economic, Social and Cultural Rights was adopted by the United Nation's General Assembly resolution 2200A (XXI) of 16 December 1966 entering into force 3 January 1976 Text at 993 UNTS 3.
98 Status of ratification of the ICCPR in United Nations Treaty Collection, available at:
http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en Last visited 25.April.2012; 167 State Parties, 74 Signatories -therefrom 7 have not ratified yet-.
without discrimination as to their status (prohibition of discrimination). The ICCPR is composed of a set of rights that seek to guarantee the political ideals, civil liberties, and freedoms, of a democratic society that is deeply rooted in modern western history. Some rights established therein may nevertheless be limited in order, inter alia, to protect public morals. This is the case in Article 12 (freedom of movement), Article 18 (freedom of thought, conscience, and religion), Article 19 (freedom of expression), Article 21 (right of peaceful assembly), and Article 22 (freedom of association). The Covenant has a monitoring body, the Human Rights Committee.
The International Covenant on Economic, Social and Cultural Rights99 shows an almost identical preamble to that of the ICCPR. The rights established therein are grounded in the inherent dignity of the human being. As in the ICCPR, it acknowledges a fundamental interaction between all types of rights; that is, between economic, social, cultural, civil, and political rights, in order to achieve freedom from fear and want. The heart of the ICESCR is at Part III. The right to work (Article 6), the right to join and form trade unions (Article 8), the right to social security (Article 9), the right to an adequate standard of living (Article 11), all deserve to be given special attention. Also significant is Article 10 on family rights. Article 10(3) provides that: "Their (children and young people) employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law". Note also the right to health (Article 12), the right to education (Article 13), and the right to culture (Article 15). The Committee on Economic, Social and Cultural Rights monitors the implementation of the ICESCR. States parties are obliged to submit regular reports to the Committee in order for implementation to be monitored. As in other monitoring bodies, the Committee publishes in its general comments its views about the content of the specific rights.