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The paradox of the formation of the United Nations is that the original 48 nations and the 152 countries who have joined them since 1945 voted for the erosion of their own national sovereignty. It is indeed astonishing that the United Nations, which entered into force on October 24, 1945, was the beginning of the decline of a view taken of the state since the days of Grotius. The major presumption of the nations that signed and ratified the Charter of the United Nations was the conviction that world wars would continue unless nations pledged to transfer the power to make war to the Security Council of the United Nations.
The theory that war could be controlled by the United Nations — the very essence of the U.N. charter — was coupled with the co-equal idea that the United Nations would have to declare, implement, and oversee the observance of human rights on which there was world agreement.
The dream and vision of the United Nations were made real and concrete to the signatories because each of them learned in Article I (3) that by being a member of the United Nations that country agreed to become a partner in the task of achieving "international cooperation in solving international problems of an economic, social, cultural or humanitarian character." That objective was paired with the goal of "prompting and encouraging respect for human rights and for fundamental freedom for all without distinction as to race, sex, language orreligion."
That sweeping language is still breathtaking. The obligations of the nations which joined the United Nations was made clear to them in Article II (2), which requires all member-nations to "fulfill in good faith obligations assumed by them in accordance with the present charter." The term "good faith" is a well-known concept in law which makes clear that nations must be willing and ready to comply with the duties they have agreed to perform.
The new vision of the United Nations and the solemn duty of nations to fulfill their obligations as members of the United Nations are even clearer in Article 55. This article asserts that the United Nations desires to create "conditions of civility and well being which are essential for peaceful and friendly relations among nations." This is an amazing goal and commitment; it is based, the charter reads, on the "principle of equal rights and self-determination of peoples."
It seems impossible to overstate the revolutionary, nature of Article 55. It is in essence a pledge by the rich nations to create an economic system which would bring "conditions of civility and well being" to all countries. The drafters who wrote those noble words probably had little real understanding that in the next few years well over 100 nations would declare independence from the colonial powers that had conquered them and that consequently these new nations would ask for economic "conditions of stability."
It is clear, however, that the authors of Article 55 knew what they were demanding of countries joining the United Nations. These nations would be partners in an enterprise that would "promote higher standards of living, full employment and conditions of economic and social progress and development," If this part of Article 55 sounded like a utopian fantasy the nations, both rich and poor, which joined the United Nations did not protest. Article 55 promised even more: the new world organization would promote "solutions of international economic, social, health and related problems." In addition, it would advance "international cultural and educational cooperation."
All this is combined with the promotion of "universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion."
It is clear that the allied powers in the depths of World War II had a blueprint for the post-war period which can only be described as extensive, unlimited, and comprehensive. It is notable that the concept of human rights was not really mentioned in the charter of the League of Nations. Somehow that idea was born before and during World War II and became one of the seminal concepts in the U.N. charter.
The architects of the U.N. charter wanted signatories to fully comprehend their new obligations. Article 56 requires the countries to pledge "to take joint and separate action in cooperation with the United Nations for the achievement of the purposes set forth in Article 55." Each nation consequently agreed and indeed solemnly pledged as an oath or vow to act individually as a country but also in joint action with other nations and with the United Nations itself.
It is very difficult to come to some judgment as to the world's level of compliance with the solemn pledges they made pursuant to Articles 55 and 56 of the U.N. charter. In one sense the burdens of complying with Articles 55 and 56 are not very stringent. But if a nation took its obligations as a member of the United Nations seriously it would change its attitudes and actions in almost drastic ways. After all, a nation upon becoming a member of the United Nations agrees to participate individually and collectively in the remaking of the world because that is precisely what the United Nations set out to achieve. The charter affirms that for the first time in the history of the world all nations are equal and that all will pledge and promise to share their resources so that basic economic rights can be obtained by all the citizens of all countries.
The U.N. charter has been compared to the Articles of Confederation adopted by the thirteen American colonies. The states promised confederation, but it turned out that the federal government which they established was too weak to unite them. The Constitutional Convention in 1787 consequently did that by writing a Constitution with a strong federal government capable of compelling the states to subject their sovereignty to national standards.
The present U.N. charter shares the weaknesses in the Articles of Confederation. It seems unlikely that those weaknesses can be corrected in the immediate future. But even without such a strengthening, the members of the United Nations have still pledged to work on their own and, through the United Nations, to promote basic economic and political equality among all the countries in the world.
The attitudes and actions of the United States toward the fulfillment of the objectives of the United Nations have always been central to the future of that organization. After all, it was the United States which was the principal architect of the United Nations. President Roosevelt undertook the principal initiative. President Truman signed the U.N. charter in San Francisco in the presence of representatives of forty-eight other nations. In addition, the United States agreed and even insisted that the United Nations be located in the United States.
This prime sponsorship of the United Nations by the United States has been a blessing and a curse for that organization. It has been a blessing that the United Nations has the prestige which it might not have had if it had been located in Geneva or The Hague. But it has been a curse because the United Nations can be victimized by the vicissitudes of American politics. The power of the United Nations indeed has been sharply curtailed in carrying out its basic responsibilities by the intensity of the decades-long east-west struggles between the United States and the U.S.S.R. Many of the United Nations' aspirations have been overshadowed by the Kremlin-White House tensions.
One of the basic ways in which the fundamental purposes of the United Nations has been frustrated is the separation of economic rights from political rights. The right to economic equality was basic to the U.N. charter and to the Universal Declaration of Human Rights. It was not separated from political rights. All the world's nations agreed to this. But when it came to implementing economic and political rights, the United States and the U.S.S.R. divided. The U.S.S.R. declined to sign on to guaranteeing freedom of speech or the right to demand elections, while the United States was reluctant to guarantee economic rights, which arguably were to some extent inconsistent with the principles of capitalism.
This struggle between the superpowers in the early 1950s is, unfortunately, underdocumented. It was and still is an invisible but enormously important struggle, resulting in 1966 in the creation of two separate covenants — one for political rights and the other for economic and social rights. These two covenants were agreed to by the requisite number of countries and hence entered into force in 1976.
If this split had not occurred, the enforcement of human rights might well have developed in essentially different ways. The U.S.S.R. and the Communist bloc would have been under the pressure of international law to allow elections, grant freedom to the press, and release captive nations from their colonial status. Americans and other capitalistic nations would have been under pressure to give health insurance and economic equality to millions of workers.
That was a part of the original dream of the U.N. charter and the Universal Declaration of Human Rights. It was made inoperative in part by the division between east and west and by the obduracy of the divided nations.
The United States finally ratified the Covenant on Civil and Political Rights in 1994. But, as mentioned above, the United States has never ratified the International Covenant on Economic, Social, and Cultural Rights, although President Carter signed it in 1978. In 1999, 141 nations had become parties to the Covenant on Civil and Political Rights and 144 parties to the International Covenant on Economic, Social, and Cultural Rights.
It is significant that the Vienna declaration made no distinction between political and economic rights. The "schism" between the east and the west was over in 1993. But the harm had been done: the split between economic and Political rights had entered into the world's psyche. For the west — or at least for the United States — the lasting impression had been given that although world law guaranteed political rights like religious liberty and freedom of the press, economic rights such as entitlement to a living wage and health insurance were in a second tier.
It is not entirely clear how important this division is. But it needs to be stressed that there is no historic, legal, or international reason for any distinction between Political and economic rights. It should, however, also be noted that the economic demands made by the International Covenant on Economic, Social, and Cultural Rights need not be guaranteed by any nation immediately but only as resources become available. But this concession does not mean that economic rights are less important or urgent than are political rights.
The vast explosion in the past fifty years in judicial rulings and academic literature concerning human rights inevitably raises questions about the ultimate definition of what is a human right. The question has been around since the Biblical question "Am I my brother's keeper?" The plea for human rights is as old as the demand made by Moses of Pharaoh, "Let my people go."
The remarkable and unprecedented consensus on the definition of human rights came together in the words of the U.N. charter and the very specific guarantees of the Universal Declaration of Human Rights. Although those documents make no direct reference to a supreme being as the ultimate origin of the inalienable rights of every human being, the language of both documents reflects a deep agreement on fundamental values.
The preamble of the U.N. charter speaks of the "dignity and worth of the human person." It insists that all nations must practice "tolerance" and "live together in peace with one another as good neighbors."
These values are very familiar to all Americans and to some extent to the peoples who live in democracies. But in 1945 and even more today these values are universally accepted. They are totally consistent with the values spelled out in the U.N. charter. They are the philosophical basis for the rights set forth in Article 55 describing "higher standards of living, full employment and conditions of economic and social progress and development."
One has to wonder whether the success of the United Nations as an organization would have been assured if the moral and spiritual values underlying the charter had been spelled out more clearly. One also must ponder on a continuous basis whether the assertion of human moral values has in fact influenced individuals and nations. The assumption must be made that the violent civil wars have had some impact, because the adoption of the U.N. charter addresses the question concerning what ideals should be followed on a global basis.
The Universal Declaration of Human Rights also reflects a broader agreement on some of the fundamental questions about the nature and origin of human rights. This document repeats the basic concept that "all human beings are born free and equal in dignity and rights" proclaiming boldly that all peoples should "act toward one another in a spirit of brotherhood," and that all human beings "are endowed with reason and conscience."
Nations have not protested over the past fifty years the inclusion of that profoundly meaningful word "conscience?' It seems clear that the Universal Declaration of Human Rights has been the most important legal document in the history of the world. Scores of constitutions and thousands of laws at the national level have been modeled after pronouncements of the Universal Declaration.
In 1992 the Scandinavian University Press issued a volume entitled The Universal Declaration of Human Rights: A Commentary. It was edited by Asbjorn Elde and Theresa Swinehart, academics in Scandinavia. The volume, which includes thirty essays on each of the articles in the Universal Declaration, reminds us of the immense range of rights in the declaration and their potential impact.
A reader of the book from Scandinavia as well as anyone who peruses the ocean of literature on the Universal Declaration has to wonder how a document of such moral strength with such compelling consensus underlying it could have been so neglected by so many nations over the past fifty years. Undeniably, the very existence of all these moral standards and proposed rights has had a salutary effect on the enjoyment of human rights throughout the world. Indeed, the moral decrees of the Universal Declaration have become to an astonishing extent the law of almost all the nations that have become independent countries after their decades as colonies of the capitalistic world.
It undoubtedly would be worthwhile to explore further the premises and presuppositions of the authors of the U.N. charter and the Universal Declaration of Human Rights. But the nations present at the Vienna conference in 1993, after an initial raising of the question of the universality of human rights, have seemed satisfied to accept the suppositions of the writers of these two documents.
While a discussion or a debate about the moral or metaphysical assumptions of the Charter of the United Nations and the Declaration of Human Rights might be useful, there appears to be a relatively settled feeling that the broad acceptance of the idea of human rights as universal is adequate to continue to make human rights enforceable. But some academics and observers, dismayed at the appalling failure of many nations to guarantee human rights, feel that a clarification of the morally compelling reasons for compliance might be a useful task in encouraging countries to comply. These advocates of human rights, however, bump up against the imponderable — and perhaps almost the insolvable — question of why some rulers shamelessly violate human rights and defy international law. Can laws, penalties, or threats deter rulers who are prone to such conduct?
Because answers to these questions are so difficult, it follows that we need more exploration of the psychological, moral, and historical reasons tyrants resist law. Often these tyrants are supported by the military under their command. The U.N. charter is strong on promoting and protecting human rights. But it is also emphatic in promoting new worldwide checks on military power. It is therefore a mistake to separate the human rights aspect of the charter from its demands for a new international order based not on military force but on the rule of law.
The United Nations, to be sure, has sought to control arms and curb military dictators. Again, the United States has an imperfect record. During the Cold War, for example, it formed its own military alliances, often supporting anti-Soviet dictators with bad records on human rights. Even after the plain need for such alliances ceased with the collapse of the U.S.S.R., the United States has continued to sell arms to countries without an adequate evaluation of their record on human rights. Indeed, the United States in the period following the Cold War has become the world's top supplier of weapons of war. To point out that these weapons do or can lead to a denial of human rights is to state the obvious.
The dream and the drive for international human rights for everyone sometimes seems impossible to implement. There are too many impediments. It almost seems that the underdeveloped capacity for democracy in former colonial nations has to be reversed before the idea of human rights can be said to be succeeding. It also appears at times that multinational corporations are imposing such heavy debts on Latin America and in Africa that goals such as universal education and the right to health care cannot be achieved in the foreseeable future.
All these problems were known to the groups at the World Conference on Human Rights in Vienna in 1993. Some individuals within these groups appeared in ways to be dreamers and idealists who tended to overlook the harsh realities of living in poor or recently liberated countries. But if that charge can be made by the enthusiasts for human rights in Vienna it can also be leveled at the forty-eight nations who were the original sponsors of the United Nations in San Francisco in 1948 and the countries that signed the U.N. Declaration of Human Rights in Paris on December 10, 1948.
It is probably true that all these persons were dreamers of a higher order than were the authors of the Magna Carta, the Declaration of Independence, or other proclamations created for the citizens of any nation. The authors of the U.N. charter and the Universal Declaration of Human Rights wrote for a whole world — a universe never before linked by an international law binding on all countries.
If there is discouragement at the results after fifty-five years of the existence of the United Nations, it could be countered that the progress and advancement in the area of human rights since 1945 has actually been more spectacular than might have been expected or even imagined.
Those achievements could have been more substantial, however, if the United States had not expressed a disinterest in economic rights. This disinterest is clear from the fact that it has never even attempted to ratify the Covenant on Economic Rights. If the United States had not distinguished between political and economic rights, the principal areas of contention in the world today might well have been the rights of poor people to food, shelter, and medical care.
The third world nations made constant appeals to these rights in repeated calls for the right to development. For forty years, underdeveloped nations had little official support in this area from the United States. The dismal statistics today on poverty, hunger, and illiteracy in sub-Saharan Africa and Asia might be radically different if the attitudes of the United States had been different.
It is apparent that the global struggle for human rights for the whole world that began in 1945, as world movements go, is very young. In addition, the population of the earth has practically doubled since 1945. Much of this increased population resides in newly liberated, desperately poor countries. Their number increases by almost 100 million persons each year. Even in more stable situations it would be difficult to bring them the economic and political rights proclaimed by world law that ought to be their heritage and their legacy.
But world law proudly and openly proclaims that the majestic rights declared to be the valid claims of every human being cannot be compromised away or denied or overlooked. The assertion of those rights is emphasized again and again by diplomats, jurists, human rights activists, and politicians.
Will those assertions be agreed to and implemented in the twenty-first century? That probably is the central question facing the human family. But its answer does not depend alone on the enforcement of the international law on human rights. Even if the enforcement were vigorous, law cannot prevail unless there is an acceptance of it at a deep level. The passions and violence that could arise in the twenty-first century are almost totally beyond prediction. Terrorists, new nations, millions of refugees, and violent hordes seizing land and property are all possible. These frightening prospects emphasize once again the need to reassure the poor and dispossessed of the truth that their internationally recognized human rights to economic equality are in the process of being fulfilled. If the 2 billion poor people of the world have no reasonable assurance that they will have a decent life for their families, they will do what desperate groups have often done in human history.
The virtual certainty of mass uprisings if the world does not move toward some type of economic justice for all is one more reason the economic rights promised by world law have such primordial importance.
The chapters that follow chronicle how the world in the past fifty years has moved to carry out the solemn promises made in 1945 and 1948, and in dozens of covenants on human rights made by the United Nations and its affiliated agencies. But the fulfillment of these rights will not bring stability and justice to the human family unless the startling disparity between the economic status of rich and poor nations is diminished.
Copyright © 1997 Arnon Grunberg.
Translation copyright © 2000 Sam Garrett. All rights reserved.
|Pt. I||The United Nations and Human Rights|
|1||The U.N. Charter: A Blow to National Sovereignty||3|
|2||The U.N. Commission on Human Rights||13|
|3||Economic Equality for All||19|
|4||The United Nations and Political and Civil Rights||24|
|5||Women's Worldwide Plea for Equality||35|
|6||A Global Revolution for Children||45|
|7||Performance of the United Nations on Human Rights||51|
|Pt. II||The United States and Human Rights|
|8||The United States Intervenes on Behalf of International Human Rights||59|
|9||The United States Walks Out on the International Criminal Court||76|
|10||Grading the State Department's Report on Human Rights||84|
|11||The United States Puts the World's Torturers on Trial||95|
|Pt. III||Human Rights Transform the World|
|12||Regional Tribunals for Human Rights||107|
|13||The Right to Food||122|
|14||Does the Death Penalty Violate Customary International Law?||130|
|15||The Human Rights of Prisoners||140|
|16||Human Rights Depend on an Independent Judiciary||148|
|17||Is Freedom of Religion the Most Fundamental of All Human Rights?||154|
|18||Do Amnesty and Reconciliation Bring Justice?||170|
|19||Contemporary Developments in Human Rights||182|
|20||The Future of International Human Rights||190|
|App||Vienna Declaration and Programme of Action Adopted at the World Conference on Human Rights, 25 June 1993||195|
|Sources of Information on International Human Rights||233|