- The Universal Declaration of Human Rights: 60 years of revolution and evolution

by O. L. Ameerajwad

1. Universal Declaration of Human Rights (UDHR) – a brief history

Today the world celebrates the 60^th Anniversary of the adoption of the Universal Declaration of Human Rights. The Universal Declaration of Human Rights (UDHR) has come to be regarded as possibly the single most important document created in the twentieth century and as such, the accepted world standard for human rights. The UDHR draws life-preserving messages from the past and is seen as an essential foundation for building a world in which all human beings can, in the centuries to come, look forward to living in dignity and peace.

In late 1945, leaders of the world's nations met in San Francisco to form the United Nations. They included, in the preamble to the Charter of the UN, an important reference to human rights. The relevant part of the preamble said: "We the peoples of the United Nations [are] determined - … to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small".

This reference to human rights was followed up by six references throughout the UN Charter's operative provisions to human rights and fundamental freedoms. In addition, largely as a result of pressure brought to bear on the political leaders by some 42 United States non-governmental organisations, Article 68, which provides that ‘The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions’, was included. It required the Economic and Social Council to set up commissions in the human rights and economic and social fields. The outcome was the establishment of a Commission on Human Rights. Thus the Commission is one of the very few bodies to draw its authority directly from the Charter of the United Nations.

The creation of the Commission on Human Rights

In April 1946, Mrs. Eleanor Roosevelt, widow of President Franklin Roosevelt of the United States was appointed to chair an interim group of 9 members. By June, the interim body had suggested that the new Commission should make its first task the development, as soon as possible, of an international bill of human rights.

Later in the year, the new Commission of Human Rights of 18 members, again chaired by Mrs. Eleanor Roosevelt, was appointed, and included China's P. C. Chang, Frenchman Rene Cassin and Dr Charles Malik of Lebanon. The Commission met for the first time in January 1947 and considered several critical issues. Its decisions have greatly influenced the human rights development since then, including action at national level. The Commission concluded that it should work to develop first a declaration rather than a treaty. (An international declaration is a statement of importance which has high moral and often political significance. It is more than a recommendation, but is less than a treaty, which is binding in international law.) Perhaps most important of all, it decided that the declaration should contain both civil and political and also economic and social rights.

The Commission's view was that the declaration should be the foundation and central document for the remainder of an international bill of human rights. It thus avoided the more difficult problems that had to be addressed when the binding treaty came up for consideration - just what role the state should have in enforcing the rights in its territory, and whether the mode of enforcing civil and political rights should be different from that for economic and social rights.

The Commission then turned to formulating the declaration. It decided to name it the Universal Declaration of Human Rights (UDHR). The very name emphasises the UDHR was to set a standard of rights for all people everywhere - whether male or female, black or white, communist or capitalist, victor or vanquished, rich or poor, members of a majority or a minority in a given community. In the words of the first preamble to the UDHR, it was to reflect "recognition of the inherent dignity and … equal and inalienable rights of all members of the human family "... and through that recognition, provide "the foundation of freedom, justice and peace in the world".

When the Commission finally took its vote on 18 June 1948, twelve of its fifteen members voted in favour and others abstained.

The draft then went to the Economic and Social Council, which did not change the text but arranged for it to go to the Third Committee of the UN General Assembly, where it encountered difficulties. After no less than 81 long meetings, at which at least 168 amending resolutions were considered, the Committee, on 6 December 1948, at last reached agreement - just in time to be taken by the General Assembly before it concluded its meeting for the year.

Adoption of the UDHR:

On the evening of 10 December 1948, the General Assembly endorsed the text of the UDHR, the day now observed world wide as the International Human Rights Day.

Notwithstanding the initial difficulties and resistance, the Declaration has achieved a stature in the world that even the most optimistic of its founders in 1948 would not have expected. The UDHR has now become an increasingly powerful instrument for the achievement of human dignity and peace for all.

The influence of the UDHR has been substantial. Its principles have been incorporated into the constitutions of most of the nations in the UN. Although a declaration is not a legally binding document, the Universal Declaration has achieved the status of customary international law because people regard it "as a common standard of achievement for all people and all nations."

The Human Rights Covenants

With the goal of establishing mechanisms for enforcing the UDHR, the UN Commission on Human Rights proceeded to draft two treaties: the International Covenant on Civil and Political Rights (ICCPR) and its optional Protocol and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Although the declaration was endorsed in December 1948, the above two covenants that emerged to define the obligations of each state were not ready for ratification (formal approval by the governments of the world) until 1966, some 18 years later. The UN Human Rights Council adopted an optional Protocol to the International Covenant on Economic, Social and Cultural Rights in June 2008 and recommended that the General Assembly, in accordance with paragraph 5 (c) of its resolution 60/251 adopt this optional protocol and open it for signature at a signing ceremony in Geneva in March 2009.

Together with the Universal Declaration, the two International Covenants of human rights and their optional protocols are commonly referred to as the International Bill of Human Rights. The ICCPR focuses on such issues as the right to life, freedom of speech, religion, and voting. The ICESCR focuses on such issues as food, education, health, and shelter. Both covenants trumpet the extension of rights to all persons and prohibit discrimination.

As of 2008, over 130 nations have ratified these covenants.

Subsequent Human Rights Documents

Treaties:

In addition to the covenants in the International Bill of Human Rights, the United Nations has adopted, as of 2008, the following treaties further elaborating human rights:

· Convention on the Prevention and Punishment of the Crime of Genocide (New York, 9 December 1948)

· International Convention on the Elimination of All Forms of Racial Discrimination (New York 7 March 1966)*

· International Covenant on Economic, Social and Cultural Rights (New York, 16 December 1966)*

· International Covenant on Civil and Political Rights (New York, 16 December 1966)*

· Optional Protocol to the International Covenant on Civil and Political Rights (New York,16 December 1966)*

· Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (New York, 15 December 1989)*

· Convention on the Elimination of All Forms of Discrimination against Women (New York, 18 December 1979)*

· Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (New York, 6 October 1999)*

· Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984)*

· Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 18 December 2002)*

· Convention on the Rights of the Child (New York, 20 November 1989)*

· Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (New York, 25 May 2000)*

· Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (New York, 25 May 2000)*

· International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (New York, 18 December 1990)*

· Convention on the Rights of Persons with Disabilities (New York, 13 December 2006)*

· Optional Protocol to the Convention on the Rights of Persons with Disabilities (New York, 13 December 2006)*

· International Convention for the Protection of All Persons from Enforced Disappearance (New York, 20 December 2006)*

* The treaties appearing with an asterisk (*) are still open for signature

Source: (UN Web site: http://untreaty.un.org/English/treaty.asp)

The Universal Declaration and other United Nations instruments have inspired several regional agreements, such as the European Convention on Human Rights, the American Convention on Human Rights and the African Charter of Human and Peoples rights.

Declarations:

Additionally, the UN has adopted many other standards and rules on the protection of human rights. These ‘declarations’, “codes of conduct”, “principles”, etc. are not treaties which states become party to, but have nevertheless a profound influence, not least because they are carefully drafted by states and adopted by consensus. Among the most important of these:

The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief (1981)
The Declaration on the Right to Development (1986)
The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992)
The Declaration on Human Rights Defenders (1998)
United Nations Declaration on the Rights of Indigenous Peoples (13 September 2007)

Treaty bodies:

The implementation of the core international human rights treaties that have entered into force is monitored by human rights treaty bodies. One of the treaty bodies’ key tasks is to conduct systematic in-depth review of the State Parties’ obligations under a particular treaty. They also publish their interpretation of the content of human rights provisions, known as general comments on thematic issues or methods of work.

Vienna Declaration and Programme of Action (VDPA)

At the 1993 World Conference on Human Rights in Vienna, the 171 participating states once again re-affirmed their commitment to the Universal Declaration of Human Rights and proclaimed in the Vienna Declaration and Programme of Action, that human rights have become the “legitimate concern of the international community, and that “all human rights are universal, indivisible, interdependent and interrelated”. The Declaration reaffirms the right to development as a universal right and the inextricable relationship between human rights and development, adding that “democracy, development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing.”

2. Human Rights Machinery:

Commission on Human Rights

As mentioned above, the Economic and Social Council (ECOSOC) established the United Nations Commission on Human Rights in 1946 according to the Article 68 of the UN Charter.

The Commission on Human Rights was established to weave the international legal fabric that protects fundamental rights and freedoms. The Commission provided policy guidance, developed and codified new international norms and monitored the observance of human rights around the world. Composed of 53 member states elected for three year terms, the Commission met in Geneva for six weeks each year. It also acted as a forum where countries large and small, non-governmental groups and human rights defenders from around the world voiced their concerns. The Commission adopted about a hundred resolutions, decisions and Chairperson's statements on matters of relevance to individuals in all regions and circumstances.

The Sub-commission

In 1947, the Commission on Human Rights established the Sub-commission on the Promotion and Protection of Human Rights. Originally dedicated to the issues of discrimination and minority protection, the Sub-commission had, over the years, expanded its scope to cover a broad range of human rights issues and made recommendations to the Commission. Meeting annually, it consisted of 26 experts who serve in their personal capacity. The Sub- commission initiated many studies, particularly on the development of legal rules.

Creation of UN Human Rights Council – a turning point in the history

The Commission on Human Rights had served as the main political body which addressed human rights issues in the United Nations system. Despite its many achievements, the Commission’s capacity to perform its tasks has been undermined by politicization, selectivity and double standard. This was affirmed in a report of the UN Secretary–Genera’s High Level Panel on Threats, Challenges and Change (A/59/565 of 2 December 2004, p. 74) and by the Secretary-General himself in his report, In Larger Freedom: development, security and human rights for all. (A/59/2005 of 21 March 2005, p.45).

The proposal of the Secretary-General on the establishment of a Human Rights Council reads as follows:

“If the United Nations is to meet the expectations of men and women everywhere — and indeed, if the Organization is to take the cause of human rights as seriously as those of security and development, then Member States should agree to replace the Commission on Human Rights with a smaller standing Human Rights Council. Member States would need to decide if they want the Human Rights Council to be a principal organ of the United Nations or a subsidiary body of the General Assembly, but in either case its members would be elected directly by the General Assembly by a two-thirds majority of members present and voting. The creation of the Council would accord human rights a more authoritative position, corresponding to the primacy of human rights in the Charter of the United Nations.” (A/59/2005, para.182).

The hot debate in Geneva in early 2005 was on the new proposal with regard to the creation of a ‘Council’ for human rights in order to replace the ‘Commission’. A number of ideas, proposals and suggestions were discussed with a view to articulate on the shape and the mandate of the newly proposed Council.

In September 2005 World leader at the World Summit decided to create a new Human Rights Council based on the proposal made by the then UN Secretary-General in his above-mentioned report. After five months of protracted negotiations, the Resolution No. 60/251 establishing the Human Rights Council was adopted by the General Assembly on 15 March 2006 by a majority vote.

The new elements of the resolution 60/251 which established the Human Rights Council are as follows:

Replaced the Commission with a Council, elevating its institutional standing to a subsidiary body of the General Assembly;
Increased frequency of meetings throughout the year (minimum three sessions a year and not less than ten weeks), as well as established a mechanism to convene special sessions. Special sessions, when necessary, could be convened through a request by a Member of the Council with the support of one-third of the membership of the Council;
Introduced the Universal Periodic Review (UPR) as a mechanism whereby each State’s fulfillment of its human rights obligations would be assessed. Such a mechanism would ensure equal treatment with respect to all Member States and would prevent double-standards and selectivity;
Incorporated within the Council’s mandate the mainstreaming of human rights in the UN system and the prevention of human rights violations;
Distributed seats in accordance with equitable geographical representation;
Make Council members ineligible for immediate re-election after two consecutive terms, thereby ensuring rotation. The Council is made of 47 member States (13 from the African Group; 13 from the Asian Group; 6 from the Eastern European Group; 8 from the Latin American and Caribbean Group; and 7 from the Western European and Other States Group);
Members of the Council would be elected by the majority of the members of the General Assembly, in other words by an absolute majority. Each candidate would be voted on individually and directly and would have to obtain at least ninety-six votes of support in a secret ballot;
Member States - when electing members to the Council - would take into account the candidates’ contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto prior to the election;
The General Assembly, by a two-thirds majority of members present and voting, could suspend the rights of membership of a Council member who commits gross and systematic violations of human rights;
Members of the Council would be expected to uphold the highest standards in the promotion and protection of human rights fully co-operate with the Council and be reviewed under the universal periodic review mechanism during their term of membership.

The Human Rights Council:

The election of the first members of the Human Rights Council took place on 9 May 2006 and the first meeting of the Council was convened on 19 June 2006. Sri Lanka was elected as one of the founding members of the Council. Sri Lanka also served as vice –President of the Human Rights Council from June 2007- June 2008.

Institution building process:

Operative paragraphs 5 (e) and 6 of the UNGA resolution 60/251 mandated the Council to develop the modalities and necessary time allocation for the universal periodic review mechanism as well as to assume, review and, where necessary, improve and rationalize all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights in order to maintain a system of special procedures, expert advice and a complaint procedure within one year after the holding of its first session.

Accordingly, the Human Rights Council decided to establish three open-ended inter-sessional Working Groups in order to implement the above provisions of the UNGA resolution. They were the Working Group to develop the modalities of the universal periodic review mechanism, Working Group on review of mechanisms and mandates which was tasked with reviewing the special procedures, the Sub-commission and complaint procedure and a Working Group to formulate recommendations for the Council’s future agenda, programme of work, methods of work, and rules of procedure.

Six facilitators were appointed in order to kick start the so called ‘Institution Building’ process of the Human Rights Council. The Working Groups chaired by the facilitators had a number of informal and formal meetings and the delegations engaged in intense negotiations. Sri Lanka coordinated the Asian Group positions during this process.

On the basis of the proposals made at the above Working Group meetings, the facilitators prepared their papers and completed their work by the end of April 2007. At this stage, the first President of the Human Rights Council, Ambassador Luis Alfonso de Alba of Mexico took control of the process and, after holding a number of consultations, put forward a President’s text in early June to assist negotiations.

Adoption of the package:

The President’s text which was commonly known as ‘institution-building package’, after some amendments, was finally adopted by the Council at midnight on 18 June 2007. The General Assembly, the parent body of the Council, then endorsed the above package on 22 December 2007 by its Resolution 62/434.

As I served in the Permanent Mission of Sri Lanka to the United Nations in Geneva during this crucial period in the history of Human Rights and participated throughout the institution building process of the new Human Rights Council I hope that it will be useful to give an overview of the structure and the mechanisms of the newly established Human Rights Council.

The “Institution-building package” (A/RC/RES/5/1 of 18 June 2007) is providing elements to guide the Human Rights Council in its future work. Among the elements is the new Universal Periodic Review mechanism which will assess the human rights situations in all 192 UN Member States. Other features include a new Advisory Committee which serves as the Council’s “think tank” providing it with expertise and advice on thematic human rights issues and the revised Complaints Procedure mechanism which allows individuals and organizations to bring complaints about human rights violations to the attention of the Council. The Human Rights Council also continues to work closely with the UN Special Procedures, established by the former Commission on Human Rights and assumed by the Council.

The Council has also various other mechanisms such as open-ended Working Group on the Right to Development, the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action and other mechanisms related to Durban Declaration on racism, Racism Discrimination, Xenophobia and Related Intolerance, the Expert Mechanism on the Rights of Indigenous Peoples, the Forum of Minority Issues and the Social Forum.

(i) Universal Periodic Review (UPR)

The Universal Periodic Review (UPR) is a new feature of the Council that is designed to review the fulfillment by a UN Member State of its human rights obligations over a four-year cycle and to ensure equal treatment for every country when their human rights situations are assessed. The review of States is conducted in a Working Group of the Council through an interactive dialogue with the concerned State. The Working Group meets in three two-week sessions each year. A total of 48 States are reviewed annually.

By reviewing the performance of all States, the Council will attempt to nullify the main criticism leveled against the former Commission; its selectivity and double standards in reviewing and responding to the human rights situation within countries.

The review will be based on the following three documents:

1. Information prepared by the State under review which may take the form of a national report

2. A compilation of UN information on the State under review (including the reports of the human rights treaty bodies, Special Procedures, and other relevant official UN documentation) prepared by the OHCHR

3. A summary of stakeholders’ submissions, prepared by the OHCHR. These stake holders include national human rights institutions, regional organizations and civil society representatives

The Working Group conducts a three-hour interactive dialogue with each State under review, during which the State under review is given an opportunity to present the information that it has prepared toward its review. It also responds to questions and recommendations presented by the Human Rights Council Member and Observer States on its human rights practices, as well as on the human rights situation in the country. Although other stake holders may attend Working Group sessions, they do not participate in the interactive dialogue.

The review of each Member State is facilitated by three rapporteurs, known as the ‘troika’, selected from the different UN regional groups. The Working Group, with the help of troika members, will prepare a report which will be forwarded for adoption as an outcome to a plenary session of the Council. The report will identify recommendations that enjoy the support of the State under review but also include that do not.

Outcome of UPR:

The outcome of UPR will include, inter alia, an assessment undertaken in an objective and transparent manner of the human rights situation in the country under review, including positive developments and the challenges faced by the country; sharing of best practices; an emphasis on enhancing cooperation for the promotion and protection of human rights; the provision of technical assistance and capacity-building in consultation with, and with the consent of, the country concerned and voluntary commitments and pledges made by the country under review.

Adoption of the outcome of UPR:

The outcome of the UPR will be adopted by the plenary of the Council. This report shall comprise, as an integral section, the following parts:

1. Summary of the views expressed by the State under review in the plenary session of the Council before the adoption of the outcome, its replies to questions and issues not sufficiently addressed during the interactive dialogue, its views on conclusions and recommendations, its voluntary commitments and its concluding remarks;
2. Summary of the views expressed on the outcome by Member and observer States of the Council;
3. Summary of general comments made by other relevant stakeholders

Follow up of UPR:

The package affirms that the outcome of the universal periodic review, as a cooperative mechanism, should be implemented primarily by the State concerned and, as appropriate, by other relevant stakeholders. The subsequent review will focus, inter alia, on the implementation of the preceding outcome and the international community will assist in implementing the recommendations and conclusions regarding capacity-building and technical assistance, in consultation with, and with the consent of, the country concerned. In considering the outcome of the universal periodic review, the Council will decide if and when any specific follow‑up is necessary. After exhausting all efforts to encourage a State to cooperate with the universal periodic review mechanism, the Council will address, as appropriate, cases of persistent non-cooperation with the mechanism.

Two sessions of the UPR, reviewing 32 countries including Sri Lanka, have already been completed and the third session is presently ongoing.

(ii) Special Procedures

"Special procedures" are the mechanisms established by the Commission on Human Rights and assumed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world.

Special procedures' mandates usually call on mandate holders to examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on major phenomena of human rights violations worldwide, known as thematic mandates. Various activities can be undertaken by special procedures, including responding to individual complaints, conducting studies, providing advice on technical cooperation at the country level, and engaging in general promotional activities.

In June 2007, the Council also adopted a Resolution A/HRC/RES/5/2, containing a Code of Conduct for special procedures mandate holders.

A Consultative Group composed of five members from each five regions, was established by the Council to propose to the President, at least one month before the beginning of the session in which the Council would consider the selection of mandate‑holders, a list of candidates who possess the highest qualifications for the mandates in question and meet the general criteria and particular requirements. Presently Sri Lanka represents Asian Group in the Consultative Group.

(iii) Human Rights Council Advisory Committee

The Human Rights Council Advisory Committee replaced the former Sub-Commission on the Promotion and Protection of Human Rights. Composed of 18 experts, it serves as a think-tank for the Council and work at its direction.

The function of the Advisory Committee is to provide expertise to the Council in the manner and form requested by the Council, focusing mainly on studies and research-based advice.

(iv) Complain Procedure

The institution building package reiterates that the new Complaint Procedure of the Human Rights Council will have the same scope as the 1503 procedure and will ‘address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms’. Unlike the 1503 procedure which focused on such violations in any country in the world, the new complaint procedure states that it will do so in ‘any part of the world and under any circumstances’. Under the new Complaint Procedure, the complainant will now be provided information on the progress of the complaint at the two screening stages and the final outcome.

Two distinct working groups - the Working Group on Communications and the Working Group on Situations - have been retained with the mandate to examine the communications and to bring to the attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms.

Office of the High Commissioner for Human Rights (OHCHR)

The High Commissioner for Human Rights is the principal human rights official of the United Nations. The High Commissioner heads OHCHR and spearheads the United Nations' human rights efforts.

The Office of the High Commissioner for Human Rights (OHCHR) is mandated to promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and in international human rights laws and treaties. OHCHR is guided in its work by the mandate provided by the General Assembly in resolution 48/141, the Charter of the United Nations, the Universal Declaration of Human Rights and subsequent human rights instruments, the Vienna Declaration and Programme of Action, the 1993 World Conference on Human Rights and the 2005 World Summit Outcome Document.

OHCHR supports the work of the United Nations human rights mechanisms, such as the Human Rights Council and the core treaty bodies, promotes the right to development, coordinates United Nations human rights education and public information activities and strengthens human rights across the United Nations system. They work to ensure the enforcement of universally recognized human rights norms, including through promoting both the universal ratification and implementation of the major human rights treaties and respect for the rule of law.

The history witnesses the revolution that was created by the UDHR and the great contribution that has been made by the UDHR to the evolution of the international human rights law as well as the international human rights mechanisms. Shared responsibility and commitment to the sentiments contained in the Universal Declaration of Human Rights is as important today, as it was 60 years ago, in order to achieve ‘Dignity and Justice for all of us’.

[O. L. Ameerajwad (SLFS), B.A, LLB and Attorney-at-law, is presently Counsellor for Human Rights at the Permanent Mission of Sri Lanka to the United Nations in Geneva, Switzerland]