Discussion

Human Rights Obligations of Members of the United Nations

Almost all states are parties to the UN Charter and are thus bound by its human rights provisions. By adhering to the UN Charter, states expressly "pledge themselves to take joint and separate action in cooperation with" the United Nations organization to promote "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion" (Articles 55 and 56).

There is much uncertainty, however, concerning the scope and meaning of Articles 55 and 56 as a matter of international law. In his book, the Age of Rights, Louis Henkin analyzes this issue as follows:

That states "pledge themselves" may suggest some form of legal obligation; but there has been no agreement among governments, or indeed among commentators, on the exact import and content of that obligation. While some governments and commentators have considered it only a general requirement of cooperation that has no normative content, others have argued that important infringements of generally-agreed human rights are violations of Articles 55 and 56. Some have further suggested that while the undertakings in the UN Charter were inchoate and general, they were realized and particularized in the Universal Declaration of Human Rights, so that all parties to the UN Charter are legally obligated to abide by the provisions in the Universal Declaration. Yet another view has it that the UN Charter, the Universal Declaration, the various international conventions, resolutions of UN organs and other multilateral bodies, and the practices of states have combined to create customary, or a blend of customary and conventional legal obligations binding upon all states to respect at least some human rights norms.

There has been no resolution of these divergent views and no authoritative definition of the human rights obligations of states under the UN Charter and under developments since the UN Charter. UN practice since 1945, including numerous resolutions, one or more of which was supported by almost every state, clearly reflects a prevailing view that the UN Charter has at least some normative import and content. Repeated resolutions have declared that apartheid in South Africa is contrary to the UN Charter. In its advisory opinion on Namibia, the International Court of Justice declared the extension and continuation of apartheid in Namibia to be "a flagrant violation of the purposes and principles of the Charter." In 1967, by an overwhelming vote, ECOSOC extended the interpretation of the UN Charter to reach beyond racial discrimination, authorizing the Commission on Human Rights to study "situations which reveal a consistent pattern of violations of human rights, as exemplified by the policy of apartheid."

In 1970, ECOSOC approved a procedure for considering private communications "which appear to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms." Even states that opposed this procedure and the interpretation of the UN Charter it implied later joined in action by the Commission of Human Rights, approved by the General Assembly, to investigate alleged violations of human rights in Chile. In its opinion in the Barcelona Traction Case, the International Court of Justice said that there are universal obligations (obligations "erga omnes") deriving in contemporary international law from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. In the commentary to its draft articles on state responsibility, the International Law Commission concluded that international law now in force includes obligations of "essential importance for safeguarding the human being, such as those prohibiting slavery, genocide and apartheid."

It is difficult to avoid the conclusion that some violations of human rights (e.g., apartheid and other forms of racial discrimination, genocide, slavery, or torture), in addition to being violations of particular conventions if committed by parties to such conventions, are violations of the UN Charter for any United Nations member, if not of customary law binding on all states. The generality of states have supported the view that "a consistent pattern of gross violations of human rights" is now a violation of international law and obligation if practiced by any party to the UN Charter and even, perhaps, by nonmembers.

Such violations surely are not a matter of domestic jurisdiction. Whether an alleged infringement is such a violation is a question of international law, not one for an accused state to determine finally.

Reference

See further Louis Henkin, The Age of Rights (1990) at 55-6 ff.