|Preamble section 5:|
|Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,|
Concepts and Ideas
Founding of the Charter
Exactly two months after opening their historic conference, on June 26, 1945, the delegates of the nations of the world reached agreement on the terms of the Charter that would create the United Nations.
The Charter builds on the precedents referred to in the Nuremberg Judgement and states the UN's basic purpose as the securing and maintenance of peace. It does so by providing in Article 2(4) that members "shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state," a rule qualified only by Article 51, which provides that nothing in the Charter shall impair the "inherent right of individual or collective self-defense if an armed attack occurs" against a member state.
In many respects the Charter resembled the Dumbarton Oaks proposals. It established a powerful Security Council assisted by a Military Staff Committee with primary responsibility for the maintenance of international peace and security dominated by the Great Powers through their permanent membership and veto. It created a General Assembly ("GA") where all nations could have equal votes and address matters of common concern to them all. The Charter instituted an Economic and Social Council ("ECOSOC") to encourage cooperation among nations in a variety of areas and an International Court of Justice ("ICJ"). In addition, it established a Secretariat for the entire organization to be administered by a secretary-general and staff. In some other respects, the Charter marked a notable departure from the Dumbarton Oaks proposals submitted by the Great Powers. This was particularly evident in the area of international human rights. (Lauren, 194)
The UN Charter and Human Rights
The Charter's references to human rights are scattered, terse, even cryptic. The term "human rights" appears infrequently, although in vital contexts. It appears in the following provisions: the second paragraph of the Preamble, Article 1(3), Article 13(1)(b), Articles 55 and 56, Article 62(2), and Article 68.
Prima facie, these provisions have a promotional or programmatic character (rather than constituting binding legal obligations) for they refer principally to the purposes or goals of the UN or to the competencies of different UN organs in "encouraging respect for human rights," "assisting in the realization of human rights," or promoting "universal respect for, and observance of, human rights." Even Article 56, which refers to the obligations of Member States only requires states to "pledge themselves" to action for the achievement of several purposes including the promotion of observance of human rights. Only one substantive human right is directly mentioned in the Charter: equal protection.
Compromise between Human Rights and Sovereignty
Many observers accurately predicted that the principle of sovereignty, which had plagued so many efforts on behalf of human rights in the past, would resurface with a vengeance once negotiations began for a United Nations. The basic difficulty and ultimate paradox stemmed from the fact that those very governments most guilty of violating the human rights of their own people were being asked to consent to and participate in active and determined protection against themselves. For this reason, the overwhelming majority of states remained unwilling to sacrifice elements of their sovereignty for the sake of human rights by authorizing the international community to intervene in their internal affairs. The international protection of human rights was acceptable if extended to the domestic jurisdiction of other nations--but not to their own.
For precisely these reasons, a number of representatives insisted on features that would guarantee the interests and sovereign prerogatives of their states. Although the language of the preamble spoke of "We the Peoples," the text of the Charter was in fact agreed to by governments and not by peoples. Moreover, and of particular importance, several governments insisted on a provision to counteract the possibility that human rights obligations would expose states to too great a threat to their national sovereignty and interference in their internal affairs. Thus, Article 2(7) states as follows:
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the jurisdiction of any state or shall require Members to submit such matters to settlement.
By including this provision, some delegates hoped that they could thus defend the sovereignty of their own nations and prevent the international organization from interfering with their particular domestic problems. (Lauren, 198-9)
The United Nation and the Universal Declaration
Despite proposals to the contrary, the Charter stopped shy of incorporating a bill of rights. Instead, there were proposals for developing such an instrument through the work of a special commission that would give separate attention to the issue. That commission was contemplated in Article 68, which provides that ECOSOC "shall set up commissions in economic and social fields and for the promotion of human rights." In 1946, ECOSOC established the Commission of Human Rights, which has evolved over the decades to become the world's single most important human rights organ.
See also Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent at 1-35.
For more on the implications of human rights in the Charter, see Henry J. Steiner and Philip Alston, Eds., International Human Rights in Context: Law, Politics, Morals at 138-40.
Peter Danchin, Columbia University