UDHR Introduction - Preamble Clauses 1-5
In assessing the role of the Universal Declaration in international law, relations and affairs, the eight recitals in the document's Preamble offer a useful starting point. Each of the recitals contains themes and concepts that either antecede, underlie or underpin the Declaration. Using this site, you are able to explore the relevant concepts involved and read a discussion about how they are implicated in the influence and history of the Declaration. The following is a brief outline of the ideas and concepts raised in each recital.
The first recital involves three closely related concepts the idea of "inherent dignity"; the idea of "equal and inalienable rights"; and the instrumental link suggested between these two ideas with the notion of freedom, justice and peace in the world. The discussion contains a background on historical debates over the sources of rights and concludes by noting how these controversies and philosophical explorations were avoided in the drafting of the Universal Declaration. As Henkin notes, international human rights are not the work of philosophers, but of politicians and citizens, and philsophers have only begun to try and build conceptual foundations for them.
The second recital considers the two major events that had an indelible effect in shaping the Declaration and opening the space for its creation. First, the horror of the Second World War and, in particular, the realization of what had happened in the concentration camps during the war. These events led to the Nuremburg trials that looked to deal with the past and the drafting of the Genocide Convention and Universal Declaration that looked to deal with the future. These responses set in motion an area of international law that today has led to the creation by the Security Council of two ad hoc criminal tribunals for Rwanda and the former Yugoslavia and seems likely to result in the creation of a permanent international criminal court. Second, the famous "four essential human freedoms" decared by FDR in his January 1941 State of the Union address as the war aims of the Allies. These later became part of the blue-print for the post war world. Central to President Roosevelt?s vision was the conviction that economic and social rights are as integral as foundations for peace and democracy as civil and political rights. This idea is clearly reflected in the Declaration although this fact is all too often overlooked today.
The third recital considers the attempt by the drafters to deal with the vexed question of whether "rebellion against tyranny" should be included as a human right. By effectively avoiding the question, the third recital asserts that the eventuality of rebellion can be diminished if human rights are protected by the "rule of law," words included at the request of the UK representative. It was the Cuban delegate, Cisneros, who was the most passionate defender of the right to rebel and wanted it to be included in a separate article. But it was Eleanor Roosevelt who was the most reluctant of the drafters to do so arguing that:
recognition in the Declaration of the right to resist acts of tyranny and oppression would be tantamount to encouraging sedition, for such a provision could be interpreted as conferring a legal character on uprisings against a government which was in no way tyrannical [and that] it would be better to not enter upon the dangerous subject of particular doctrines which could easily be abused.
The fourth recital deals with the concept of what it means to promote "friendly relations" between nations and situates the Declaration in the heart of the long historical battle between two disciplines with different views on what governs, and what should govern, the relations between nations: law or power. Today, this tension is often seen as straddling the two disciplines of international law and international relations. The discussion in this section looks at these two schools of thought and their modern roots and asks what the significance of the Declaration has been to this relationship. It also asks, more specifically, what the influence of the Declaration as a non-binding instrument has been in the friendly relations between nations. This involves questions concerning how human rights have become part of the inter-state system, and of international law, and how and why or perhaps whether states obey international human rights norms. In other words, to paraphrase Professor Henkin's famous assertion, whether it is really true that: "Almost all nations observe almost all principles of international law and almost all their obligations almost all of the time."
The fifth recital links the Declaration to the different objects and purposes of the United Nations, and mentions the importance of promoting not only human rights but also social progress. The United Nations Charter, at the pinnacle of the human rights system, has relatively little to say about the subject of human rights. But what it does say has been accorded great significance. Through interpretation and extrapolation, as well as frequent invocation, the sparse text in relation to human rights in the Charter soon became the point of departure for the nascent international human rights movement at the end of the Second World War. The Universal Declaration is itself best regarded as an authoritative elaboration and interpretation of the brief references to human rights in the Charter. Thus, this section explores some of the historical and philosophical connections between the Universal Declaration and the founding of the United Nations. It looks at how the difficult issue of "sovereignty" was dealt with in the Charter and its relationship to international human rights. It also describes what happened at the founding of the UN at the Dumbarton Oaks and San Francisco conferences between 1944 and 1945 and who was involved. Interestingly for students of Columbia University, it was Virginia Gildersleeve, the former Dean of Barnard College and the only woman on the American delegation, who has been credited with the inclusion of the words "universal respect for and observance of human rights" as one of the purposes of the United Nations.
Peter Danchin, Columbia University