Formal Statements of Human Rights (HSC SSCE Legal Studies): Revision Notes

Formal Statements of Human Rights

Introduction to formal statements

The recognition of human rights in formal international documents is a relatively recent development. For centuries, various rights existed in different forms across different societies, but it was only after the catastrophic events of the First and Second World Wars that the international community came together to formally recognise and protect these rights.

The catalyst for this formal recognition was the shared sense of purpose among nations following these devastating conflicts. This led to the establishment of the United Nations (UN) in $1945$, which created a crucial forum for international discussion and agreement. The UN General Assembly became the platform where formal statements of human rights would be developed, negotiated, and adopted.

The journey from scattered historical rights to formal international recognition represents one of the most significant developments in international law. These formal statements would eventually provide a framework for protecting human dignity worldwide, though their effectiveness would depend on international cooperation and enforcement mechanisms.

Universal Declaration of Human Rights (UDHR)

Background and development

The Second World War served as the immediate trigger for international action on human rights. In $1941$, US President Franklin Roosevelt articulated what became known as the Four Freedoms, calling for the protection of:

• Freedom of speech
• Freedom of conscience
• Freedom from fear
• Freedom from want

These four freedoms became foundational principles that influenced later human rights documents. When the United Nations was established in $1945$, human rights were placed at the centre of its mission. The UN Charter identified as its second purpose (after maintaining peace) the commitment 'to reaffirm faith in fundamental human rights, in the dignity and worth of the human person'. Article $2(2)$ of the Charter created an obligation to promote 'universal respect for, and observance of, human rights and fundamental freedoms for all'.

The UN Commission on Human Rights was established and given the task of drafting this groundbreaking document.

The Commission was chaired by Eleanor Roosevelt, the former First Lady of the United States and a delegate to the UN General Assembly. The drafting committee included representatives from diverse nations including Australia, Chile, Egypt, France, India, Iran, the Soviet Union, Uruguay, the United Kingdom, and the United States. This broad representation ensured the document reflected various political, philosophical, and religious perspectives from around the world.

The Commission drew upon historical documents containing rights declarations and examined worldwide political, philosophical, and religious movements. This comprehensive approach helped create a document that could gain acceptance across different cultures and legal traditions.

Adoption and content

The Universal Declaration of Human Rights (UDHR) was adopted on 10 December 1948. Originally, $48$ of the $58$ states that existed at that time signed the Declaration. This document became the culminating achievement in the quest for international recognition of human rights.

The UDHR contains $30$ articles covering a comprehensive range of rights:

Civil and political rights:

• Right to life, liberty, and security
• Freedom of thought, religion, and expression
• Right to a fair trial
• Right to asylum
• Freedom from slavery and torture
• Right to equality before the law

Economic and social rights:

• Right to education
• Right to work
• Right to join trade unions
• Right to an adequate standard of living
• Right to participate fully in cultural life

Other fundamental rights:

• Freedom of movement
• Right to marry and have a family
• Right to own property

Legal status: soft law versus hard law

A crucial decision in the development of the UDHR concerned its legal status. The Declaration was adopted as a declaration rather than a fully binding treaty. This distinction relates to the concepts of soft law and hard law:

The decision to make the UDHR soft law rather than hard law was strategic. It meant that the maximum number of countries were willing to sign the document. If the UDHR had been drafted as a binding treaty, many nations might have refused to adopt it, significantly limiting its reach and influence.

Impact and influence

Despite being soft law, the UDHR has had an enormous impact on international human rights. Eleanor Roosevelt predicted that the Declaration would create a 'curious grapevine [that] may seep in even when governments are not anxious for it'. She was referring, in part, to non-government organisations (NGOs) – independent, non-profit groups that play a crucial role in advocating, analysing, and reporting on human rights worldwide.

The UDHR has become an enduring statement that has inspired more than $200$ international treaties, conventions, declarations, and bills of rights over the past $50$ years. It is arguably the most important of all human rights documents and has stood the test of time.

Although not a formal treaty, the UDHR has arguably become part of international customary law – actions and concepts that have developed over time to the extent that they are accepted by the international community and have become law. This transformation demonstrates the Declaration's profound influence on international legal norms.

The UDHR has also become the foundation for eight core human rights treaties and various treaty bodies that continue to monitor and report on the state of human rights around the world. Despite ongoing abuses by some countries, the Declaration has gained wide acceptance by the international community.

International Bill of Rights

Overview and development

When the UDHR was originally conceived, it was intended to include three components:

1. The declaration itself
2. An international treaty relating to it
3. Measures of implementation

However, once the UDHR was approved by the General Assembly, many years passed before any binding covenants relating to these rights were established. The formation of a binding treaty would oblige nation-states to guarantee human rights in their domestic legislation – a much stronger commitment than the soft law of the Declaration.

The UN Commission on Human Rights was given the task of drafting this binding treaty. However, Cold War tensions in the $1960$s created a significant obstacle. A dispute arose over what rights should be covered:

Together, the UDHR and these two covenants are collectively known as the International Bill of Rights.

International Covenant on Civil and Political Rights (ICCPR)

Development and ratification:

Both the ICCPR and ICESCR were drafted and approved in $1966$, but neither came into force until $1976$ when they were finally ratified (formally approved by countries, making them legally binding) by the requisite number of countries: $35$. Unfortunately, neither covenant received much support from the superpowers at the time – the United States and the Soviet Union.

Content:

The ICCPR creates binding obligations on state parties to respect the civil and political rights of individuals. Key rights include:

Equality and non-discrimination:

• Equality between men and women (Articles $2$ and $3$)
• Equal protection under the law (Article $26$)

Fundamental freedoms:

• Right to life (Article $6$)
• Freedom of movement
• Freedom of thought, conscience, speech, religion, and assembly (Articles $18$–$19$, $27$, $22$)

Justice rights:

• Right to a fair trial
• Right to be presumed innocent until proven guilty (Articles $9$ and $14$)

Protection from abuse:

• Prohibition of torture and slavery (Articles $7$ and $8$)
• Requirement that prisoners be treated with respect

Personal and family rights:

• Right to marry whoever one wishes
• Right to have a family
• Special protection for all children under the law (Articles $23$–$24$)

Cultural rights:

• Right for ethnic minorities to enjoy their own cultures

Democratic rights:

• Right to vote

Monitoring and compliance:

Ratification status:

By the beginning of $2010$, the ICCPR had been widely ratified, with $165$ state parties. However, notable exceptions exist:

• China, Pakistan, and Cuba signed but have not ratified the treaty
• The United States ratified the ICCPR in $1992$ but added many reservations that significantly reduced its domestic effect
• Burma, Malaysia, Saudi Arabia, and Singapore have neither signed nor ratified the ICCPR

International Covenant on Economic, Social and Cultural Rights (ICESCR)

Development:

Like the ICCPR, the ICESCR was approved in $1966$ and came into force in $1976$. It creates an obligation on state parties to work towards granting economic, social, and cultural rights to individuals.

Content:

The ICESCR covers a different category of rights from the ICCPR:

Labour rights:

• Right to just conditions at work
• Right to fair wages
• Right to join trade unions

Standard of living rights:

• Right to an adequate standard of living
• Right to adequate food
• Right to adequate clothing
• Right to adequate housing
• Right to healthcare

Education rights:

• Right to education
• Primary education should be compulsory and free for all

Monitoring:

The ICESCR is monitored by the UN Committee on Economic, Social and Cultural Rights.

Ratification status:

By the beginning of $2010$, the ICESCR had been widely ratified, with $160$ state parties. Notable exceptions include:

• The United States signed the ICESCR in $1979$ but has never ratified it
• South Africa signed but never ratified the covenant
• Burma, Malaysia, and Saudi Arabia have neither signed nor ratified the ICESCR