Title: The historical significance of the Universal Declaration.
Subject(s): UNIVERSAL Declaration of Human Rights, 1948; WORLD history
Source: International Social Science Journal, Dec98, Vol. 50 Issue 3,
p475, 23p, 2bw
Author(s): Eide, Asbjorn
Abstract: Comments on the impact of the 1948 Universal Declaration of
Human Rights on global history in the 20th century. Effect of the
declaration as a moral platform requiring respect for the freedom and
dignity of individuals; Properties of the Declaration restored and
consolidated from a process of normative development which had emerged
during the 17th and 18th centuries.
AN: 1422539
ISSN: 0020-8701



By adopting the Universal Declaration, the member states of the United
Nations in 1948 appeared to make a break with traditional Realpolitik,
which had been the more normal stuff of inter-governmental relations
since the treaty of Westphalia in 1648. There was a risk that the
high-sounding phrases of the Universal Declaration might have become
yet another case of empty rhetoric, afterwards to be shelved and
forgotten in the everyday life of games of power and influence, as has
been so with thousands of other United Nations resolutions. That did
not happen, however. Resolution 217A(III), by which the General
Assembly proclaimed the Declaration, can in hindsight be held to have
been the most important resolution ever adopted by the United Nations,
or by any inter-governmental organization at all.

In the aftermath of the devastating World War II and the brutalization
of many societies which had taken place in the years leading up to
that war, the Charter and the Universal Declaration sought to
establish a new framework for world order by adopting standards for
both international relations and domestic policies.

The significance of the Declaration must be seen in the wider context
of the world order as envisaged by the United Nations Charter, and
must be interpreted in that context. The purposes to be pursued in the
development of a New World order are set out in article I of the
United Nations Charter, and are essentially threefold:

--the maintenance of international peace, which includes the
protection of the territorial integrity of states against external
aggression and intervention;

--the development of friendly relations among nations, taking into
account the principles of sovereign equality and self-determination of
peoples. The latter has led to a comprehensive process of
decolonization which has fundamentally changed the architecture of the
international system, by vastly increasing the number of sovereign
states and bringing to an end empires of all kinds.

--the achievement of international co-operation in solving
international problems of an economic, social, cultural or
humanitarian character, including respect for human rights and
fundamental freedoms without distinction as to race, sex, language or

The Universal Declaration is directly related to this third purpose.
It clarifies the content of human rights, which were only vaguely
referred to in the Charter itself. While the overriding goal of the
United Nations is the maintenance and development of world peace, the
Declaration has made it clear that peace can only be built on the
respect for human rights. In the Preamble it says, 'recognition of the
inherent dignity and of the equal and unalterable rights of all
members of the human family is the foundation of freedom, justice and
peace in the world'.

It was the first time that representatives of the world community came
together to agree and articulate the rights and freedoms of all
members of the human family. Participants in the process which led up
to the adoption of the Declaration -- a process which lasted at least
from 1942 to 1948 -- included representatives of cultures throughout
the world who all had contributions to make to the common framework
for human dignity in freedom and equality that the Declaration

Until 1948, notions of 'natural rights' or 'civil rights' were mainly
found in constitutions and sometimes legislation of a limited number
of states, predominantly in the West, with only limited contents
compared to that of the Declaration, and often extensively violated in
practice. Large parts of the world were still under colonial control,
and the means used by metropolitan countries to maintain that control
were sometimes in clear violation of the ideals of human dignity
professed by those countries at home.

Following the adoption of the Declaration in 1948, the conception of
human rights was considerably broadened and entered into the
constitutional and legal systems of a great number of additional
states. Most states that obtained their independence or revised their
constitutions after 1948 included human rights in their constitutional
system -- without, however, always taking the necessary measures to
ensure that these promises were applied and respected in practice.

The human rights contained in the Declaration were to be indivisible:
economic, social and cultural rights were to be given recognition
along with civil and political rights. Another new feature was that
the rights contained in the Declaration were to be applicable to every
person, everywhere in the world.

In terms of the evolution of human rights, the Declaration is
therefore significant in at least the following five respects: (i) it
restored and consolidated a process of normative development which had
emerged in some societies during the 17th and 18th century but which
had since increasingly been confronted by illiberal collectivist
ideologies; (ii) it broadened and gave more substance to the twin
concepts of freedom and equality, and their interrelationship; (iii)
it significantly expanded the content of human rights compared to
traditional notions, and thereby overcame some of the criticisms,
which in the past had been made to notions of 'civil' and 'natural'
rights; (iv) it declared that these rights were to be made universal
in geographical scope, to be enjoyed by everyone everywhere in the
world; and finally, (v) it made compliance with human rights a
legitimate concern of international law and relations.

The Declaration has had tremendous impact on moral, political and
legal spheres. It is at the same time a moral platform requiring
respect for the freedom and dignity of everyone, and a future oriented
project requiring continuous efforts at all levels to make human
rights universally enjoyed in reality. It did not stop at proclaiming
the rights but called also for a transformation of the social and
international order in such a way that the rights established could be
enjoyed in practice.

The Declaration is presented as a standard of achievement 'to the end
that every individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education
to promote respect for these rights and freedoms and by progressive
measures, national and international, to secure their universal and
effective recognition and observance...' (from the preamble). The
progressive measures should lead to the formation of a 'social and
international order in which these rights can be fully realized'
(Declaration Article 28).

1. Initiative for the Declaration and its elaboration

The first initiative to make human rights universal was taken by the
then President of the United States, Franklin Delano Roosevelt, in his
Message to the US Congress in January 1941. His initiative was
remarkable both for the broad content he gave to human freedoms, and
the insistence that they should be enjoyed everywhere in the world.

In the future days, which we seek to make secure, we look forward to a
world founded upon four essential human freedoms. The first is freedom
of speech and expression -- everywhere in the world. The second is
freedom of every person to worship God in his own way -- everywhere in
the world. The third is freedom of want -- which, translated into
world terms, means economic understandings which will secure to every
nation a healthy peace-time life for its inhabitants -- everywhere in
the world. The fourth is freedom from fear, which translated into
world terms means a world-wide reduction of armaments to such a point
and in such a thorough fashion that no nation would be able to commit
an act of physical aggression against any neighbour -- anywhere in the

This, he said 'is no vision of a distant millennium. It is a definite
basis for a world attainable in our own time and generation.'

The Atlantic Declaration, made by President Roosevelt and Prime
Minister Winston Churchill in August 1941, reiterated the same
commitments. A few months later on 1 January 1942, representatives of
governments from many countries, east and west, met in Washington to
adopt the Declaration of the United Nations. Allies in World War II,
their purpose was to define the aims for which they were fighting. The
governments represented declared themselves convinced that the aims of
the victory over their enemies should be to defend life, liberty,
independence, and religious freedom, and to preserve human rights and
justice in their own as well as in other lands.

An international group of scholars and diplomats was convened in 1942
by the American Law Institute, a private institution in the United
States specializing in issues related to the codification of law, to
draft a text for a possible Declaration or Bill of International Human
Rights. Cultures represented in that group included American, Arabic,
British, Canadian, Chinese, French, non-Nazi German, Italian, Indian,
Latin American, Polish, Russian and Spanish. The group completed a
draft Bill of Human Rights in 1944, but did not pursue it further at
that time. It was to become the main inspiration in 1947 when the
Human Rights Division of the United Nations under the leadership of
its Director, Professor John Humphrey of Canada prepared the first
draft of the Universal Declaration.

Several other drafting initiatives were on their way at the end of
World War II, one of them initiated by the Latin American countries as
a follow-up of the Inter-American Conference on War and Peace Problems
held at Chapultepec, Mexico, early 1945.

When the founding conference for the United Nations was convened in
May 1945 in San Francisco, several states from Latin America pushed
for the inclusion in the Charter of the United Nations itself a Bill
of Human Rights. One of these was the draft prepared by the group
assembled by the American Law Institute, and introduced by the
representative of Panama. It was then decided to include in the
Charter a provision for the establishment of the Human Rights
Commission, and to give it the task to draft international standards
in the field of human rights.

Article 55 (c) of the Charter provides that the United Nations shall
promote 'universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language, or religion.' In article 56, all members pledged themselves
to take joint and separate action in co-operation with the United
Nations for the achievement of the purposes set forth in article 55.

The Charter of the United Nations is an international convention
binding on all member states. It is therefore a duty of all states
members of the United Nations under international law to promote
respect for and observance of human rights and fundamental freedoms
without discrimination.

The Commission on Human Rights started its work in 1947. The drafting
committee was representative of the different parts of the world,
composed of the delegations of Australia, Chile, China, France,
Lebanon, the Soviet Union, the United Kingdom and the United States of
America. The initial draft prepared by John Humphrey, Director of the
UN Division for Human Rights, was based to a large extent on the work
that had gone on since 1942 by representatives of different cultures.
The final version was based on a revised draft edited by Rene Cassin
of France. It was presented in the summer of 1948 to the United
Nations General Assembly that with minor modification adopted it on
December 10, 1948.

The Declaration contains a broad range of human rights: rights to
integrity (right to life, freedom from torture and maltreatment,
freedom from slavery and from arbitrary deprivation of liberty),
rights to due process and fair trial, freedom of action in respect of
profession and practice of any religion and faith, of expression and
information, freedom of movement, freedom of association, political
rights, and economic, social, and cultural rights. It was the broadest
range of human rights ever adopted in any instrument, national or

2. Restoring and consolidating a broken faith

The Charter of the United Nations states that '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...' The same words are reiterated in the
preamble of the Universal Declaration.

While it is true that the Declaration restored notions of rights that
had once been held in parts of the world, it went much further. It
broadened the range of rights beyond what had been recognised in even
the most democratic of societies, and it lent them a universal
validity beyond the geographical area where they had, in the past,
formed part of the political culture.

The trigger of this revolutionary move was the revulsion against the
brutality shown before and during World War II. The disregard and
contempt for human rights in that period had, to quote the words of
the Preamble of the Declaration, led to barbarous acts which had
outraged the conscience of mankind. The representatives of the world
community now wanted not only to restore a lost faith, but also to go
beyond it, as stated in the preamble, with a reference to the Four
Freedoms speech made by Roosevelt: 'The advent of a world in which
human beings shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of the
common people'.

The Declaration is therefore intended to consolidate the best of what
had previously emerged and to build a more comprehensive and inclusive
order on that basis.

The developments leading to the first codification of rights can be
traced back to the 17th and 18th century. It is often stated that
notions about the dignity of the human being are much older and
reflected in the great religions. Such notions did not, however,
include conceptions of equality of the human being in secular matters,
nor had past notions implied assumptions that the human being had
inalienable rights that could be asserted against public authority.

In tracing the origin to the 17th century, it should be borne in mind
that when used by the drafters in 1947-1948, the notion of 'human
rights' itself was of recent vintage. It had been preceded by earlier,
more narrow terms: 'natural rights', 'the rights of man' (droits de
l'homme) or 'civil rights'.

The origins can be traced to the transformation of world views during
the Renaissance, which opened to a rational discourse increasingly
liberated from the mysticism of the preceding centuries, ushering in
an explosion of scientific and intellectual creativity. In political
theory, much of the debate came to be centred on the notion of social
contract. The Dutch Calvinist Johannes Althusius introduced in 1603
the theory of consent as a requirement in political associations; a
position that was to be much further developed by others, particularly
by John Locke more than 80 years later. In the ensuing years, the
traditional theory of natural law was thoroughly changed by
introducing the notion of natural rights. Thomas Hobbes in Leviathan,
or The Matter, Form, and Power of a Commonwealth, Ecclesiastical and
Civil (1651) intended to prepare a recipe for constructing an ideal
state where peace and security could be ensured. It was in this
connection that he introduced the notion of natural right, contrasted
with natural law. He had a very pessimistic view about the behaviour
of human beings in 'the state of nature', that is before they entered
into the social contract. His postulate was that men had entered into
a social contract with each other because their reason told them that
they could best ensure their self-preservation by giving all power to
a sovereign. Every man has a natural right to self-preservation. No
person is obliged to act in accordance with the law of nature if he
thinks that this would be inimical to his own security. Since on the
other hand, peace cannot be safeguarded unless the law of nature is
respected, the solution had therefore been that every individual
promised every other individual to carry out whatever commands a
sovereign (whether an individual or an assembly) would consider
necessary for the peace and defence of all. The sovereign envisaged by
Hobbes was to hold absolute power. This would be the only guarantee by
which human beings would be protected from each other.

The rest of the story is well known and need not be repeated here
except in a few reminders. The major break-through came with John
Locke and his Two Treatises of Government affecting the first Bill of
Rights in 1688. He emphasized the need for consent as the basis of
government: Human beings are equal and therefore nothing can put
anyone under the authority of anybody else except through his consent.
He departed significantly from Hobbesian pessimism by assuming, in
contrast to Hobbes, that in the state of nature human beings had been
free and equal, most of them observing natural law. Natural law
therefore constituted and protected rights of life, liberty and
property. It also required men to keep their promises and also to do
what they could to secure the welfare of others.

There had been certain inconveniences, however, since not all
respected the rights of others. In particular, property was vulnerable
in the state of nature. In Locke's theory of the social contract, men
have agreed unanimously to come together as a community, and jointly
act so that they could uphold each other's rights. Secondly, they have
agreed by majority vote to set up legislative and other institutions.
Thirdly, owners of property have agreed to provide the taxes necessary
to ensure the common welfare of society, provided that these taxes are
imposed by the property-owners themselves through their
representatives in the sovereign assembly.

The slogan 'No taxation without representation', so effectively used
in the 'Boston tea party' can thus be traced back to the thinking of
John Locke. The link between taxation and representation also explains
the limited concept of democracy held by Locke and many of those who
followed him: Only those who had property that could be taxed were
considered entitled to select the members of the sovereign assembly.
This was before the industrial revolution and the emergence of large
groups of salaried and taxable workers.

Modern constitutionalism is in debt to John Locke, the 'Glorious
Revolution' and the Bill of Rights that established limitations on
government for the protection of individuals. About half a century
later, Charles-Louis de Montesquieu in The Spirit of Laws (1750)
elaborated the notions of a division of political authority into the
legislative, executive and judicial powers and asserted that in order
to promote liberty, these three powers should be held by different
individuals or bodies, acting independently from each other. He
considered that this model already existed in Britain. In doing so, he
probably over-idealized the rather muddled constitutional system that
then existed in that country. By simplifying the model, however, he
gave clarity to constitutional principles that had not existed before.
His work was to have major political impact, in particular on the
evolution in the American colonies when they joined together to become
the United States.

A few years later Jean-Jacques Rousseau published his own version of
the social contract: Du Contrat Social (1762). If states could be
based on a genuine social contract, entered into by persons who give
up the complete freedom that they enjoyed in the state of nature, they
would receive in exchange a better kind of freedom, namely true
political republican liberty. This liberty would be sustained by
obedience to law that was adopted by the people themselves.

His notion of the 'general will', to which everybody must submit as a
consequence of having entered into the social contract, has given rise
to much discussion. It is possible to argue that the differences
between the conceptions of Locke and Rousseau have given rise to
somewhat conflicting conceptions of human rights. One draws
inspiration from Locke. It is more prevalent in the Anglo-American
world and sees human rights essentially as freedom from the state.
Another draws on Rousseau. It is more common on the European continent
and in Latin America, and sees human rights in not only freedom from
the state but also claims on the state. It thus has a more positive
attitude towards the state as an instrument of common welfare.

In the founding years, the interplay between politicians, philosophers
and social movements in Britain, the American colonies and France was
very close, based on common inspirations derived from notions of
natural rights and the necessity of government by consent. This can be
illustrated by the Englishman Thomas Paine, who played an influential
role in political mobilization for the American revolution and who
after the French revolution became a member of the French Assembly;
Thomas Jefferson, who was inspired by Montesquieu and Locke when
writing the American Declaration of Independence; and the Frenchman
Marquis de Lafayette, who in 1777 joined the American revolution, was
appointed a major general and played a major role in the revolutionary
army against the British in the years of 1777-81. Back in France in
1782, he was elected to the States General that convened in May 1789,
was one of the authors of the first draft of the Declaration of The
Rights of Man and the Citizen, undoubtedly inspired by the American
Declaration of Independence as well as by Rousseau's writings.

In 1791, the United States adopted the Bill of Rights, which was
attached to the previously adopted Constitution of 1787. A part of the
Bill was intended to ensure the protection of the interests of the
states in relation to the federal authorities. Article I, however,
contains the classical human rights: Freedom of religion, freedom of
speech and the press, freedom of assembly, and the right to petition
the government for redress of grievances. Article IV deals with the
right to privacy and freedom from arbitrary arrest, while articles V
and VI deal with issues related to due process and fair trial. Several
of these rights were found already in the British Bill of Rights, but
the American Bill goes further. It does not go quite as far as the
French Declaration of 1789, which has a more comprehensive catalogue
of rights. In distinction to the French Declaration, however, the
American Bill of Rights formed part of a constitutional document and
was therefore immediately legally binding, while the French
Declaration did not find a stable place in the French constitutional
system for nearly a hundred and fifty years. It was inserted as a
preamble to the French constitution of 1791, but that constitution
disappeared with the new one of 1792 abolishing the monarchy. The
French Declaration found no clear place in positive French
constitutional law until the new constitution adopted in 1946.

In hindsight it can be argued that it was Thomas Paine who elaborated
the most comprehensive vision of human rights, in reaction to the
deficiencies he observed in the Europe of his time. In his Rights of
Man, published in 1791 in response to Edmund Burke's criticism of
natural rights, he went beyond the rhetoric of rights to analyze the
causes of discontent in European society, beset by arbitrary
government, widespread poverty, and frequent and violent wars. He
argued in favour of democratic republicanism, combined with measures
for welfare, relief of the poor, pensions for old people and general
education for everyone. He maintained that this should be achieved
through progressive taxation. He was therefore arguing in favour of
rights which went far beyond what was contemplated during those years,
and which were achieved only a hundred and fifty years later with the
adoption of the Universal Declaration of Human Rights.

More than a hundred and fifty years were to pass from the first
codifications of what were claimed to be natural rights at the end of
the 18th century to the adoption of the United Nations Charter in 1945
and the Universal Declaration of Human Rights in 1948. In the
intervening years, the notion of natural rights came under attack from
many quarters, beginning already during the closing years of the 18th
century. For a long time it was a debate taking place essentially
within the Western world. Elsewhere, freedom of expression had not yet
reached a stage where it was possible to pursue the debate except in
rather narrow circles.

In the Western world, the notion of inalienable rights was rejected by
many. Others sought to restrict them to only a minimum set that they
called civil rights. The reasons were several. Conservative reaction,
strengthened by the excesses of the French revolution, brought many to
oppose the very idea of the equality of man. Social reformers found
the limited concepts of civil rights too restrictive. At the radical
end, the notion of natural or civil rights was seen as an instrument
used by the bourgeoisie in its conflict with the workers' movement.

In continental Europe, the Austrian Chancellor Prince Metternich
coordinated the efforts to ensure authoritarian and dynastic
repression of democratic and national movements. From 1815 to 1848, he
managed to erect and maintain an anti-democratic chain of
international alliances throughout Europe. His argumentation bears
some striking similarities to the cultural relativist arguments
against human rights heard in the 1990s. He considered the efforts at
democratic political change in the 1820s and 1830s in Italy, Spain,
and Germany to be unhistorical and unrealistic. He claimed that those
on the liberal side were trying to transplant from England notions of
freedom and equality that had no historic mots on the Continent. He
argued in favour of tradition and hierarchy, not equality. Orderly
organic development was required. He argued that 'a people who can
neither read nor write' could not develop proper constitutions.

It is possible to see the period from 1800 to 1945 as a long process
of struggle between those who sought to preserve superior power and
privileges against others who opposed it. In Britain, challenges to
natural rights emerged from various quarters. Edmund Burke had reacted
to the developments in revolutionary France, challenging the very
notion of 'the rights of man' and popular sovereignty. In his
Reflections on the Revolution in France (first published in 1790) and
in subsequent works, he portrayed in dark terms the dangers he saw in
democracy when the 'masses' are allowed to rule, 'unrestrained and
unguided by the responsible leadership of a hereditary aristocracy'.
He argued that rationalist thinking and speculative schemes of
political reconstruction were causing the destruction of the painfully
acquired material and spiritual resources of society. In contrast, he
glorified what he considered to be the virtues of the English
constitution with its continuity and unorganized growth, with specific
rights based on status rather than abstract and equal rights. The
British acceptance of a hierarchy of rank was to him a positive, not a
negative feature.

Within jurisprudence, or the theory of law, the 19th century saw a
strong emphasis on positivism. It was initiated by Jeremy Bentham, the
founder of utilitarianism in Britain, and further developed by John
Austin, who in his The Province of Jurisprudence Determined (1832)
sought to clarify the distinction between law and morality, which he
considered to be blurred by doctrines of natural rights. He elaborated
his definition of law as a species of command from a sovereign
accompanied by a threat of punishment (the 'sanction') for
disobedience. This conception was completely at odds with theories of
natural law or natural rights.

In general, there was throughout the 19th century little support for
general ideas about eternal and fundamental rights. Some basic
principles of constitutionalism were nevertheless accepted by
countries that managed to consolidate some kind of democratic rule,
however limited the franchise. They were consolidated in the United
States, Britain (even without a written constitution), Belgium and the
Netherlands, the Nordic countries, and with more turbulence also in
France and Latin American states.

The scope of democracy, however, was limited. While consent by the
governed had been regarded as a major concern already by John Locke,
he had the owners of property in mind, not the 'masses'. The
proletariat --those without property -- were becoming increasingly
numerous as the industrial revolution moved on. Land enclosures, which
pushed tenants off the land, expanding coal mining that relied in part
on child labour to draw the carriages in narrow pits, and entirely
unregulated industrial developments, all generated an impoverished
mass of illiterate people. In the 1820s and 1830s an increasingly
vocal demand emerged for broader participation in government with a
view to use the state for social reform. Among those who still
supported notions of fundamental freedoms and natural rights two
different strands emerged, one arguing in favour of freedom with
autonomy, and the other for freedom with participation.

Autonomy from the state was to be achieved by mechanisms which
controlled and limited it: division of power between the legislative,
the executive and the judiciary, more or less along the lines proposed
by Montesquieu; due process; basic guarantees for individual freedom;
the principle of non-retroactivity in criminal matters; freedom from
torture; protection of property; and within some limits also freedom
of speech.

Freedom by way of autonomy from the state was fine for those who were
rich and powerful in the economic system. Those who had nothing except
their labour to offer and often unable to find a job, with little or
no education and hardly a proper place to stay did not benefit much
from these freedoms. Their hope was linked to demands for political
participation by which reform could be achieved, and for trade union
rights that would make it possible to obtain a more decent income and
more humane labour conditions.

The questions of the extension of franchise, the right to be elected
and the right to the formation and use of trade unions became the
hottest issues within those few societies that had a modicum of
democratic structure. In England, the Chartist movement emerging out
of the working class mobilized considerable support in the 1830s and
1840s for an extension of voting rights. It was repressed, as were
many of the other attempts at democratic revolution in Europe during
the optimistic but ultimately tragic years of 1848-1852. This
contributed to the growing challenge by parts of the workers' movement
against the prevailing concept of civil rights, a challenge which gave
rise to the line of thought first clearly articulated by Karl Marx and
later expressed in the Communist Manifesto. This must be seen against
the profound misery, squalor and poverty that had emerged in the wake
of the industrial revolution.

In the United States, the major human rights problem for nearly a
century after the American Revolution was the continued widespread
existence of slavery. The American Declaration of Independence had
proclaimed the 'self-evident truth' that all men were created equal,
and yet the harsh reality of black slavery persisted for nearly a
century. The U.S. Supreme Court seriously blemished itself in the
notorious Dred Scott decision of March 6, 1857, when Chief Justice
Roger B. Taney declared that a Negro had 'no rights which any white
man was bound to respect'. Slaves were property, and masters were
guaranteed their property rights under the Fifth Amendment, he argued.

This extreme cynicism was forcefully challenged by Abraham Lincoln in
his quest for presidency, and revulsion against the attitudes
underlying it contributed to the outbreak of the American Civil War in
1861, the abolition of slavery by the Thirteenth Amendment of the US
Constitution in 1865 and the adoption of the Fourteenth Amendment in
1886, which inter alia introduced the notion of equal protection by
the law. Nevertheless, nearly another century had to pass until Civil
Rights legislation in the 1960s took effective steps to promote
equality by way of law, not only by outlawing discrimination on
grounds of race or colour, but also by promoting equality in fact
through affirmative action.

The growth of nationalism in Central and Eastern Europe, more or less
simultaneous with increased competition among European powers for
colonial possessions in Africa and Asia, balance of power politics and
an intensifying arms race, all contributed to a downhill slide of
human rights, and ultimately resulted in the First World War.

The United States was in 1917 reluctantly drawn into what was
essentially a European war. At its end, at the inspiration of the U.S.
President Woodrow Wilson, efforts were made to modify the traditional
realist balance of power politics by the establishment of the League
of Nations and the introduction of some changes, however modest, in
the structure of international law. In January 1918 the US President
Woodrow Wilson outlined his suggestions for a peaceful settlement in
14 points, the final one being a call for the establishment of 'a
general association of nations ... under specific covenants for the
purpose of affording mutual guarantees of political independence and
territorial integrity to great and small states alike'.

On that basis the League of Nations was formed by the victorious
powers, though the United States never became a member. The main
purpose of the League was to organise a form of collective security.
Some efforts were made to introduce general provisions for the
prevention of racial discrimination and for the protection of
religious freedom. None of these succeeded. In at least three areas,
however, the League introduced important innovations into
international relations: The mandate system, the minority system, and
a system for elaboration, promotion and protection of labour

Neither the mandate system nor the minority regime was made generally
applicable, however. The mandate system was applied to the territories
taken from Germany or from the Ottoman Empire during the war. Its main
interest as a precursor for human rights was that the well being and
the development of the native peoples should form a sacred trust of
civilization and should guide the administering power. The League set
up a Mandates Commission to supervise the administration of the
mandated territories.

Under its Covenant, article 23, the League should also promote fair
conditions of labour for men, women and children. For this purpose a
separate agency was set up, the International Labour Office, which was
given a legislative, promotional and supervisory role in the field of
labour standards.

Another precursor of modern human rights was the establishment of the
minorities system under the League. It was not a generalised system
but consisted of some specific minority agreements and unilateral
undertakings made by new states or states whose borders had been
withdrawn, mainly in Central and Eastern Europe, as part of the peace
settlement after World War I. The minority arrangements were imposed
on the states concerned as conditions for recognition by the
victorious powers.

The first treaty concerning minorities was between Poland and Germany,
and it became a model for the others. It consisted of two main
undertakings. Members of the minorities should not be subjected to
discrimination, and they should be granted certain rights to maintain
ethnic identity. These included the use of language, and the right to
run their own social and educational institutions.

The most significant innovation was the mechanism established by the
League to receive and handle petitions by members of minorities who
alleged that their rights under the treaties or undertakings had been
violated. This was radical; nothing like it had existed before at the
international level.

The minority systems of the League had a salutary impact on group
accommodation during the first ten to fifteen years of the League's
existence. By the middle of the 1930s, however, it ran into trouble,
and gradually faded away even before the League itself collapsed. The
breakdown was due to a number of factors. One was that it was not a
generalised system, but had been imposed on a few states who therefore
argued that their sovereign equality as states was not respected. They
further argued that the system encouraged separatism by the
minorities, negatively affecting their stability as states.

Towards the end of the 1920s and throughout the 1930s, severe
political deterioration took place in Europe and East Asia,
particularly Japan. Extreme nationalism and fascism in Central and
Southern Europe, Stalinism in the Soviet Union and militarism in Japan
initiated a period of authoritarian and totalitarian regimes,
collectivist and intolerant in nature. In large parts of the world,
the faith in fundamental human rights, and the dignity and worth of
the human person, appeared to be lost. It ended with the cataclysm
that was World War II.

It was against this sombre background that another president of the
United States, Franklin Delano Roosevelt, outlined his vision of the
future world order when the struggle would have ended at a time when
it was becoming clear that his country would be drawn into the Second
World War. This vision turned out to become the inspiration both for
the creation of the United Nations and the Universal Declaration of
Human Rights: 'In the future days, which we seek to make secure, we
look forward to a world founded upon four essential human freedoms...'
He passed away before the war had ended and it fell to his widow,
Eleanor Roosevelt, to chair the United Nations Human Rights Commission
in drafting the Universal Declaration and to reiterate during the
debates what her husband once had said: 'A man in need is not a free

3. 'Born free and equal in dignity and rights': the foundation of the

3.1 Freedom and equality in the Declaration

Article 1 of the Universal Declaration starts with the assertion that
'all human beings are born free and equal in dignity and rights...'.
Adherents and opponents of this principle had fought out violent
conflicts during the preceding century and a half. In the United
States it had resulted in a civil war with a frightful number of
casualties before the dignity of persons belonging to different races
had been accepted, however grudgingly by some. In Europe, a grotesque
form of racism with anti-Semitism as its main element had culminated
with the Holocaust. Colonial empires had deemed indigenous populations
unfit to rule themselves and had used harsh measures to repress the
emerging national liberation movements. When, therefore, in 1948 the
Universal Declaration proclaimed that freedom and equality of all
human beings should be applied in all cultures and in all political
systems, between men and women as well as between members of different
races, nationalities and creeds and any other group of people, this
was a historical event with no precedents in the evolution of

To translate this into legal, political and cultural reality, however,
has been a long and complicated process filled with conflicts. Great
advances have been made since the Universal Declaration was adopted.
In the 1960s major steps forward were made in the elimination of
racial discrimination, and the 1970s and 1980s moved the realization
of equality between the sexes many steps forward, both in law and in

3.2 Understanding freedom and equality

In the texts of the Declaration, 'equality' is coupled with the word
'freedom'. Their relationship, as explored in philosophy and politics,
deserves some words as a background to the place of these concepts in
the law of human rights.

We can take three of the many meanings of freedom: one is to have a
wide range of significant options (or opportunities) open, the second
is to be independent of others in deciding on the use of the options,
the third is to be free so as to set one's own values and priorities
and to live by them.

Equality could be understood in the same vein: to have an equally wide
range of significant opportunities available as do others; to be
equally independent of others, or to be equally free to determine
one's own values and priorities.

Freedom is provisionally here understood in its individualistic sense,
as understood in Western liberal thinking of 19th century origin. The
content of equality was highly controversial and the subject of deep
political cleavages contributing to the ideological schism and the
division of Europe which started with the Russian revolution in 1917
and extended during the Cold War. At the ideological level, these took
the form of a confrontation between various strands of liberalism on
the one hand and Marxism on the other, which ended only around 1990.
Its end was due, in no little part, to the human rights in the
Universal Declaration and in particular to its wide content, which
made the ideological division absurd. To understand this, some words
on the background may be required.

Karl Marx was one of the strongest critics of the natural rights
theory and its apparent but fictitious concern with equality, as it
stood in the middle of the 19th century. In his article from 1843, 'On
the Jewish question', he developed his criticism on two levels.
Firstly, he argued that the natural rights theory served mainly as a
facade for the interests of the bourgeoisie, for those who owned and
controlled the means of production. For the proletariat, the rights
were 'empty' or formal, since without property, without access to
education, and entirely dependent on those who control the resources,
the proletariat had no possibility of making use of them. This
challenge focussed on the inequality in access to opportunities, and
is therefore of relevance here.

Secondly, he claimed that the whole theory of rights was based on
assumptions of self-serving individuals. 'The egotistic individual in
civil society may in his non-sensuous imagination inflate himself to
an atom, i.e. to an unrelated, self-sufficient, wantless, absolutely
full, blessed being'. But this 'natural individual' was a fantasy;
'Man is in the most literal sense a zoon politicon, not only a social
animal, but an animal which can develop into an individual only in
society'. The essence of this criticism is a challenge to the notion
of freedom as autonomy of the individual, independent of and
non-responsible to anyone else in society. To Marx, human
self-realization could be achieved only through a collective effort
and a dedication to a common concern.

The combination of these two criticisms contributed to the emergence
of an alternative conception of property and sovereignty that was to
have wide-ranging consequences. Instead of private property there was
to be collective property; instead of the primacy of the individual
and her or his autonomy, there was to be primacy of society and its
sovereignty. This was, according to Marxist theory, to be achieved
after the revolution that would be carried out by the working class
when capitalist society reached its crisis point. Involved in this is
a special conception of development, which gave rise to what in the
final years of the Soviet system was called 'the command economy.'

By this theory, Marx paved the ground for a totalitarian conception of
sovereignty. The autonomy of the individual was invalidated, both in
regard to control over property but also in his very basis of
existence. This led to the destruction of freedom in all three of the
above meanings: no freedom of choice between different options, no
independence of the individual from the all-embracing state, and no
freedom to set one's own priorities and live by them.

What needs to be underlined, however, is that a development took place
in the non-Marxist world, within what in broad terms is called liberal
thinking and practice, moving away from very limited 'natural' or
'civil' rights to a more comprehensive and inclusive conception of
freedom and equality. It developed within the circles of socially
conscious liberals, who gained some ground in the first part of the
century. A statement made by the then president of the United States,
Franklin D. Roosevelt, can exemplify the development. In his 1944
State of the Union Address, Roosevelt advocated the adoption of an
'Economic Bill of Rights', saying: 'We have come to the clear
realization of the fact that true individual freedom cannot exist
without economic security and independence. Necessitous men are not
free men. People who are hungry and out of job are the stuff of which
dictatorships are made'.

This process culminated with the adoption of the Universal Declaration
of Human Rights. It gives substance to the principle of equality,
which was originally conceived in a much more formal sense. This was
achieved partly by adding economic and social rights to civil and
political ones. It also avoided the endorsement of atomistic
individualism by emphasizing in Article 29 that the full and free
development of any person's personality is possible only when he or
she forms part of a community and observes her or his duties to it.
Although it does not make the enjoyment of human rights dependent on
the observance of those duties, it makes clear that the full
development of the human being --and of a humane society -- is
possible only when they are observed.

The entirely negative understanding of freedom which had been held by
adherents of extreme liberalism -- maximum autonomy from the community
and the state -- is alien to the Universal Declaration. Under modern
human rights law, the state as agent of the national community has
positive roles to perform. Responsibility under international law for
the realization of human rights rests with the state. To achieve it
the state must shoulder three sets of obligations that are sometimes
difficult to harmonize: to respect the freedom of the individual, to
protect that freedom and other human rights against third parties, and
where required to provide access to welfare for basic needs such as
food, shelter, education and health.

The terms 'equality before the law', 'equal protection of the laws',
and 'non-discrimination by way of law' express related but distinct
ideas. However, they seem to have developed in that order at different
stages during the 18th, 19th and 20th centuries. All of them are
enshrined in the International Bill of Human Rights, in particular the
Universal Declaration (art. 7) and the Civil and Political Covenant,
CCPR, (art. 26). Some notes on these three concepts and the stages
through which they have gone may be useful.

As the range of human rights expanded from the 18th century notion of
'natural rights' to the international systems of the 20th century, the
concern with equality in relation to the law expanded correspondingly.
The scope of state legislation was rather narrow in the 18th century.
Equality before the courts, which interpreted and applied customary
law, was the initial priority, combined with a concern to avoid
arbitrariness in the use of power by the king, prince or whoever
constituted the executive branch of government; hence the concern with
legality. Interference by the state with the freedom of the individual
should be made by general law which should be equally applicable to
all, hence 'equality before the law'.

During the period of economic liberalism in the early and middle part
of the 19th century, the state was not expected to interfere much in
the private sphere, roughly coinciding with the domain regulated by
private law. Social or material inequality was not held to be
something in which the state should meddle. The private sphere was
extensive, including most economic activities, where inequality became
rampant. As evidenced by the Dred Scott decision, the US Supreme Court
as late as 1857 had even held that slavery was within the private
sphere since it was a form of property. This, however, was very
difficult to reconcile with the notion that everyone was born and
should remain free. In the course of the 19th century, slavery was
prohibited. To give effect to this prohibition, however, states had to
extend protection to persons who might otherwise have been treated
like slaves. From this and related concerns emerged the notion that
everyone should have the right to 'equal protection of the laws'. The
laws should not only respect, but also actively give equal protection
to all human beings.

To implement this concern, there was also a felt need to ensure the
impartiality of the judicial system. That turned out to be a long and
difficult process, however. The social recruitment of judges and
jurors was -- and to some extent still is -- drawn from a narrow
section of society; the racial composition of the judiciary in mixed
societies has until very recently been overwhelmingly biased towards
the dominant group, and until the last two decades the judiciary in
most societies have been almost exclusively male.

Equal protection by the laws turned out not to be sufficient, however,
to ensure equality in fact. Industrialization and accelerating
urbanization made social relations more complex, and the scope of
legislation extended greatly. Protection had to be provided against
disability resulting from industrial accidents, against deprivation of
income caused by illness, by old age, or by unemployment. Equal
protection by law thus got a more extended meaning, encompassing also
economic and social rights, culminating with the broad list in the
Universal Declaration: the rights to work, education, health, and to
participate in the cultural life of the society.

The centrepiece of it all is found in article 25: 'Everyone has the
right to a standard of living adequate for the health and well-being
of himself and of his family, including food, clothing, housing and
medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age
or other lack of livelihood in circumstances beyond his control.'

If states are to conform to the requirements of the Universal
Declaration and corresponding conventions, they have to take steps
including legislation to deal with social, economic and cultural
rights. In so far as they do the protection provided by law must be
made without discrimination. Such legislation affects not only
activities operated by the state, but also private activities. Most
employment opportunities exist in the private sphere; giving effect to
the right to work requires the state, among other things, to prohibit
policies of discrimination by private employers. Other examples could
be added.

Nevertheless, the scope of the principle of equality and
non-discrimination -- and the corresponding obligations by states --
in regard to the private sphere remains controversial. It was the
subject of considerable dispute at the beginning of the 1960s in the
United Nations, the Council of Europe, and national systems including
the United States. Two factors influenced the outcome. At the United
Nations, a great number of African and Asian states became members in
the years 1960 and 1961, emphasizing their priorities which led to the
Convention on the Elimination of Racial Discrimination (1965). Another
important factor was the civil rights struggle in the United States,
which scored major successes in the 1960s, culminating with the Civil
Rights Act (1964). The victories gained in the elimination of racism
also affected the drafting of the Convention on the Elimination of All
Forms of Discrimination against Women, adopted in 1979.

Common to these is that they take a new step, beyond the two already
taken in the past -equality before the law, and equal protection by
the law. The two new conventions require elimination of
discrimination, and open up for affirmative action, which amounts to a
call for the creation of equality by way of law. To fulfil its
obligations under these two conventions, the state is required to be
rather active, and possibly more so than some find politically

4. Broadening the content: the package of rights contained in the
Universal Declaration

4.1 Interrelated rights

The Universal Declaration was adopted in 1948 as a package of
interrelated and interdependent rights which includes and further
strengthens all elements of three hundred years of development and
adds more. In 1950, T.H. Marshall focused on the historical
development in the West of those attributes that were vital to
effective 'citizenship'. He distinguished three stages in this
evolution, tracing the formative period in the life of each of these
types of rights to a different century, and he related it to an
evolving concept of citizenship. Civil rights had been the great
achievement of the eighteenth century, laying the foundation of the
notion of equality of all members of society before the law. Political
rights were the principal achievement of the nineteenth century by
allowing for increasingly broader participation in the exercise of
sovereign power. Social rights were the contribution of the twentieth
century, making it possible for all members of society to enjoy
satisfactory conditions of life.

These three components were to form building blocks for the more
comprehensive system of rights contained in the Declaration. To these
were added further elements. All of these were made into a package of
rights in the sense that the different rights are interdependent and
therefore indivisible. The United Nations has repeatedly made this
point, most recently at the World Conference on Human Rights held in
Vienna under United Nations auspices in 1993.

4.2 Civil rights

The Declaration starts with the classical civil rights: integrity
rights, freedom of action, and rights relating to fair trial or due

The integrity rights include the right to life, liberty and security
of person. Torture and maltreatment is prohibited; so is slavery and
forced labour, arbitrary arrest, detention or exile.

Freedom of action includes the right to free movement and choice of
residence inside the country, the right to leave any country and the
right to return to one's own country. It further includes rights to
practice one's own religion, freedom of expression and information,
freedom of assembly and association.

Most of the integrity rights are absolute in the sense that no
derogation can be made from them. Freedoms of action, however, can and
to some extent must be constrained in order to protect the rights of
others. For instance, freedom of expression must be constrained in
order to prevent hate speech.

While these categories of rights had gradually found acceptance in
some societies during the 18th and 19th centuries, the reality was
often different: even in some Western countries, freedom to practise
one's own religion was not fully recognized until after the
Declaration was adopted. Religious persecution by Christians against
other Christian groups, adherents of other religions -- particularly
Judaism -- and against non-believers had been the norm rather than the
exception in the Middle Ages and remained so far into modern times.
The struggle for human rights had to a large extent been a struggle
for freedom of religion, and later also for freedom of expression and

There cannot be unlimited freedom of action in any society. Indeed,
one of the purposes why states are formed is to maintain law and
order, to ensure that persons do not act towards others in ways which
destroy the integrity and freedom of the latter, or block the measures
taken to ensure welfare in society.

The state is therefore bound to set some restrictions and impose some
duties, which is done through law, including penal law, and through
administrative acts based on law. In order to ensure, however, that
penal prosecution and the law on which it is based are compatible with
human rights requirements, the right to fair trial or due process is
important. The right to a fair trial is an essential, if not
imperative, part of any legal system purporting to be based on the
rule of law, and is also found in the Universal Declaration.

Due process requires, inter alia, that there are judges competent to
interpret the laws and apply them to individual cases, and these
judges must be independent of any outside interference as well as
impartial with regard to parties concerned. In the course of drafting
the Universal Declaration, there was no disagreement on the inclusion
of the basic principle of fair trial by independent and impartial
tribunals, in both criminal and other cases, although various views
were taken as to the scope and wording of what finally became Article

4.3 Political rights

The Declaration states in Article 21 that 'the will of the people
shall be the basis of authority of the government'. This goes beyond
the conceptions held in the 18th century by most adherents of the
social contract, which required only that the government had the
consent of the governed. Only a select few were held to be suited to
participate in the exercise of authority.

Article 21 implies a right for all to participate in the exercise of
government, directly or through freely chosen representatives, and
also implies equal rights for all of access to public service. It
consolidates, therefore, the notion of freedom through participation.

For the exercise of authority to be based on the will of the people,
much more is required than periodic elections, however free they may
be. To ensure that acts of authority are based on the will of the
people, every such act must be based on a law that has been adopted by
the legislative assembly elected by the people. The Preamble of the
Declaration also underscores the close relationship between human
rights and government, by pointing out that 'it is essential, if man
is not to be compelled to have recourse, as a last resort, to
rebellion against tyranny, that human rights should be protected by
the rule of law'.

The emphasis on law and democracy is prominent in the Declaration. In
Article 29, the Declaration provides that in the exercise of his or
her rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and of meeting the just requirements of morality, public order
and the general welfare in a democratic society. Democracy and good
governance require a constitutional framework with a division of power
between the legislative, the executive and the judicial system. It is
not enough to have a constitution, it must also be applied in
practice, and there must be mechanisms to control the
constitutionality of acts taken by the highest political bodies.
Governmental and non-governmental institutions and processes must be
tailored to the optimal functioning of inclusive democracy. Public
management must comply with principles of accountability,
transparency, people's participation, decentralization, legislative
capacity and the independence of the judiciary.

4.4 Economic, social and cultural rights

Probably the greatest innovation made by the Universal Declaration is
the inclusion of economic, social and cultural rights. They constitute
three interrelated components of a more comprehensive package. These
components also have close links to civil and political rights.

Article 22 refers to the economic, social and cultural rights
indispensable for dignity and free development of personality and to
the right to social security, which entitles everyone to access to
welfare state provisions. It precedes the five subsequent articles
which declare the rights to work (article 23), to rest and leisure
(article 24), to an adequate standard of living (article 25), to
education (article 26), and the right to participate freely in the
cultural life of the community (article 27).

At the core of social rights is the right to an adequate standard of
living (Article 25). The enjoyment of this right requires, at a
minimum, that everyone shall enjoy the necessary subsistence rights --
adequate food and nutrition rights, clothing, housing and the
necessary conditions of care and health services. Closely related to
this right is the right of families to assistance, briefly mentioned
in Article 25 and elaborated in greater detail in subsequent
provisions such as the International Covenant on Economic, Social and
Cultural Rights Article 10 and in the International Convention on the
Rights of the Child, Article 27.

In order to enjoy these social rights, there is also a need to enjoy
certain economic rights. These are the right to property (UDHR,
Article 17), the right to work and work-related rights (UDHR Articles
23 and 24) and the right to social security (UDHR, Articles 22 and

The economic rights have a dual function, most clearly demonstrated in
regard to the right to property. On the one hand, this right serves as
a basis for entitlements which can ensure an adequate standard of
living, while on the other hand it is a basis of independence and
therefore of freedom. The initial concern with the right to property,
articulated by John Locke and others, was directed against the feudal
order where control over land and other resources was based on a
hierarchical system constituting profound inequality and dependencies.
It is therefore understandable that the right to property became a
crucial element in the early quest for freedom and equality. This
aspect of economic and social rights was therefore not new with the
adoption of the Universal Declaration.

The Declaration states in its Article 17 that everyone has the right
to own property alone as well as in association with others, and that
no one shall be arbitrarily deprived of his property. Property
relations can therefore be individual or collective. The right is not
absolute: owners can in some cases be deprived of their property, but
this shall not be done arbitrarily. Unreasonable interference in
private property by the state, or deprivation without compensation,
would in most cases constitute violations of human rights.

The International Covenant on Economic, Social and Cultural Rights
does not include a provision on the right to property. The omission
was not due to a denial of the importance of the right to property,
but to the difficulty obtaining consensus on the modalities of its
legitimate acquisition and use. In the transition from feudalism to
private property, profound inequalities arose. Some obtained title to
vast areas of land whereas many of those who had tilled the land were
dispossessed altogether. A similar problem arose in territories where
immigrants from Europe to the Americas, South and Southern Africa,
Australia and to a lesser extent New Zealand dispossessed the
indigenous populations, in some places giving rise to large properties
(latifundias) for a few individuals, marginalizing and impoverishing

Property on the traditional understanding of the word cannot be
enjoyed on an equal basis by all. The right to property therefore has
to be supplemented by at least two other rights: the right to work
which can provide an income ensuring an adequate standard of living,
and the right to social security which can supplement, and where
necessary fully substitute, insufficient income derived from property
or from work --insufficient, that is, in regard to the enjoyment of an
adequate standard of living.

The right to work is also a basis of independence, provided the work
is freely chosen by the person concerned, that sufficient income is
obtained from it, and provided the workers can protect their interests
through free trade unions.

In its Article 23, the Declaration states that everyone has the right
to work, to free choice of employment, to just and favourable
conditions of work and to protection against unemployment. The right
to work does not mean that the state is obliged to give jobs to
everyone. What it does mean is, firstly, that there shall be no
discrimination in access to employment. Not only must the public
authorities abstain from any such discrimination, but they are also
obliged to ensure that private employers do not discriminate on
grounds such as race, colour, ehnicity, gender, or political opinion.
Secondly, the right to work implies an obligation of states to ensure
the existence of and access to institutions for vocational training
and education required to qualify for jobs, and finally the state is
obliged to pursue economic policies aimed at the highest possible
level of employment, preferably full employment.

The work-related rights also contained in Article 23 consolidate a
development which had started at the beginning of the century and
promoted, in particular, through the International Labour Organization
(ILO), which was formed in 1919. The right to form and join labour
unions ('freedom of association') without interference from the State
was included as a basic principle of the constitution of ILO. It
represented a victory over very restrictive economic liberalism of the
19th century, when legislation had prohibited or made illegal all
agreements between employees for advancing their wages or improving
their working condition.

Of similar importance is the principle included in Article 23 that
everyone shall have equal pay for equal work. Lower pay for women was
a deeply entrenched practice in many societies. By including this
principle, the Declaration provided a basis for action which in most
parts of the world now has led to considerable equalization of the pay
to women and men, though much still remains to be done.

The right to social security is essential, particularly when a person
does not have the necessary property available, or is not able to
secure an adequate standard of living through work, due either to
unemployment, old age or disability (UDHR, Articles 22 and 25).

The right to education contained in Article 26 of the Declaration is
both a social and a cultural right. The right to education obliges
states to develop and maintain a system of schools and other education
institutions in order to provide education to everybody, if possible,
free of charge. The right to education is a means by which the
individual can qualify themselves for meaningful work that can provide
an adequate income, and from this perspective it is clearly a social
right. The right to education shall, as is the case of other rights,
be ensured to everybody without discrimination. The obligations of
States to promote equality of opportunity and treatment in the matter
of education are laid down in greater detail in the 1960 UNESCO
Convention against Discrimination in Education.

Since education enhances the human capital of the society at large, it
is one of the few human rights for which it is universally agreed that
the individual has a corresponding duty to exercise this right. It is,
however, also a cultural right in that it makes it possible for the
individual both to enjoy the arts and share in scientific
advancements, and to qualify her or himself for participation in
cultural innovation and cultural reproduction. For this reason, it is
necessary to take a closer look at the other cultural rights.

The notion of cultural rights is complex. Under Article 27 of the
UDHR, cultural rights contain the following elements: the right to
take part in cultural life, the right to enjoy the benefits of
scientific progress and its applications, the right to benefit from
the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which the beneficiary
is the author, and the freedom indispensable for scientific research
and creative activity. It is closely linked to other rights such as
the right to education (UDHR, Article 26).

One important aspect of cultural rights is the right to preserve the
cultural identity of minority groups, which has implications for civil
and political as well as economic and social rights. This makes it
necessary to distinguish between two approaches to culture the
process-oriented and the system-oriented ones.

The process-oriented conception of culture sees it as the evolving
achievement of artistic and scientific creation. The system-oriented
concept of culture sees it as a coherent self-contained set of values
and symbols that a specific cultural group reproduces over time and
which provides individuals with the required signposts and meanings
for behaviour and social relationships in everyday life. From the
process-oriented perspective the individual is a producer of culture,
from a system-oriented perspective she or he is a product of culture
and reproduces it through her or his own activities.

As cultural products, individuals seek preservation of the culture
that has shaped them. The basic source of identity for human beings is
often found in the cultural traditions into which he or she is born
and brought up. The preservation of that identity can be of crucial
importance to well being and self-respect. From this perspective,
'cultural rights' should give priority to access to, and education of,
one's own culture, as well as the right to participate in the
reproduction and further development of that culture.

The individual as the producer of culture becomes important when the
individual finds existing traditions unacceptable or insufficient,
either when they are compared with cultural practices in other parts
of the world or because new conditions are felt to require significant
changes in cultural traditions. Existing cultural traditions may be
considered repressive by some, legitimising hierarchies, feudal or
clan-like with rampant paternalism, inequality and lack of freedom;
they may give almost a claustrophobic feeling. Some individuals
therefore challenge existing patterns of culture, in favour of
innovation and change. The right to innovate and to challenge is not
only a significant part of individual cultural rights, but also a
cause of tension.

5. Making human rights universal

In hindsight, the evolution of human rights can be analysed on three
dimensions: One is the process from conceptualization to
operationalization of human rights; another is the widening of their
content, the third is the geographical expansion of their recognition
and application.

5.1 From conceptualization to operationalization

The process from conceptualization to operationalization moves through
three stages: Idealization, positivization and realization.

Idealization refers to the evolution of the discourse on human freedom
and good governance, articulated by philosophers and other publicists
with increasing influence on the minds of wider sectors on the
population. This discourse has gone on for centuries and requires, as
one of its first prerequisites, to secure the space for freedom of
religion and belief and for freedom of expression and information.
Building on that basis, other basic issues have been covered which are
now defined as human rights. The necessary freedom of expression and
information came earlier in some of the Western than in other
societies, which is one of the reasons why the first articulations of
human rights took place in a few countries now defined as 'Western'.
As will be evident from the review of the historical process given in
section 2, 'Restoring and consolidating a broken faith', however, the
fact that assertions of natural or civil rights emerged first in some
European countries does not mean that a human rights culture
immediately emerged in those societies. On the contrary, notions of
individual rights were met also there with great suspicion and
opposition. Human rights defenders in Europe were often harassed or
persecuted. In the 1930s the worst violations of rights took place in
Europe, carried out by authoritarian or totalitarian regimes with no
respect for human freedom and diversity.

After idealization follows positivization. It relates primarily to the
legal aspect of human rights and means the transformation of ideas
into standards of law. It moves the concern from morality to law and
from soft law to hard law: in some cases from international to
domestic law. The Universal Declaration, in combination with the
Charter of the United Nations, can be seen as the first step at the
global level on that process, by transforming the ideals into specific
language deriving its legal validity from the obligations states had
undertaken when becoming members of the United Nations. The next step
up the ladder of positivization was the adoption of legally binding
international treaties: The Covenant on Civil and Political Rights,
the Covenant on Economic, Social and Cultural Rights, and the various
other conventions which have since been adopted by the United Nations
and by regional organizations. The third and most important step in
the process of positivization consist of the legislative measures
adopted by states to give international human rights application in
domestic law.

Realization refers to the cultural and social domain and means the
evolution and creation of conditions under which the normative
standards are implemented and respected in practice. It may require a
wide range of measures by the state, including the establishment and
proper functioning of courts, law enforcement agencies, welfare
institutions and others. But it also requires acceptance among the
public: knowledge of their own rights, respect for the rights of the
other members of society, and cooperation in order to contribute to
the common welfare in society. In brief, it is a question of an
evolving human rights culture. It also requires the adoption of
international measures of co-operation and assistance.

In this article I have not sought to examine the degree to which human
rights have been realized over the fifty years since its adoption.
While significant progress has been made in some fields, very great
failures and neglect can be seen in others. The present High
Commissioner of Human Rights, Mary Robinson, has repeatedly drawn our
attention to the fact that the anniversary should not be an occasion
for self-congratulation but a challenge to take more resolute action.
She has seen the vast number of present-day victims of destitution and
persecution, and that there is a yawning gap between aspiration and
genuine achievement.

5.2 Broadening the content

The second dimension has been the process of broadening the content of
human rights. Initially it was a concern with personal integrity
(freedom from arbitrary execution and arrest, from torture and from
slavery), due process and fair trial, and freedom of religion,
expression and information -- already articulated in the 18th century,
together with the protection of property. Later, it expanded to more
wide-ranging rights to association, assembly and political rights,
over which there was major struggle throughout the 19th century, with
major victories won in parts of the world. In other parts it took off
only in the 20th century, making major gains forward in the 1980s and
1990s, but still far from completed everywhere.

In this century came the inclusion of economic. social and cultural
rights. It began modestly in some countries at the end of the 19th
century, making somewhat more headway after World War I but still in a
very precarious way, and really only finding explicit support and wide
acceptance in international standards after World War II. These sets
of rights are still resisted or narrowly circumscribed even by some
Western states. As pointed out by the High Commissioner for Human
Rights, there has been an imbalance in the promotion at the
international level of economic, social and cultural rights and the
right to development. She has argued that extreme poverty, illiteracy,
homelessness and the vulnerability of children to exploitation through
trafficking and prostitution are telling indictments of leadership in
our world.

5.3 Geographical expansion

The third dimension is the geographical expansion of recognizing and
applying human rights. This originated in the triangle Britain/North
American colonies (which became the United States), France in the 17th
and 18th centuries, to wider European and Latin American acceptance in
the 19th and first part of the 20th centuries. However, the
circumstances were tenuous with frequent and severe reversals,
including the fascist regimes in Europe between the two world wars and
military dictatorships in Latin America in the 1960s and 1970s. They
finally became a universal concern after World War II through the
Charter of the United Nations. Since only 59 states were members in
1948, universal acceptance took place only in 1993 at the World
Conference on Human Rights in Vienna, where more than 170 governments
of the world expressed their commitment to universal human rights.

One important aspect of the process of geographical diffusion as a
contribution to the universalization of human rights has been the
emergence of regional mechanisms that build on universal rights but
apply them in their regional context. Regional human rights
instruments with their own mechanisms for implementation have been
adopted so far in Europe, the Americas and in Africa. The contents of
rights are closely modelled on the Universal Declaration, but some of
them also include duties. In the case of Africa, collective and
solidarity rights have also been included.

The Inter-American human rights system. The Latin Americans were the
first to initiate a regional system. In May 1948 the Ninth PanAmerican
Conference adopted the American Declaration on the Rights and Duties
of Man. It came at a time when drafts of the Universal Declaration
already existed, but the American declaration was adopted seven months
before the General Assembly of the UN adopted the Universal
Declaration. It contains not only rights but also duties. In 1959, the
Inter-American Commission on Human Rights was created within the
framework of the OAS. In 1969, the Inter-American Specialized
Conference on Human Rights, meeting in San Jose, Costa Rica, adopted
the American Convention on Human Rights. The existing Inter-American
Commission on Human Rights was made an organ for the Convention's
implementation. Provisions were also made for the establishment of the
Inter-American Court of Human Rights, which sits in San Jose. The
American convention entered into force in 1978.

The Council of Europe The Council of Europe was established in 1949
mainly in order to set up an effective international machinery to
protect human rights at the regional level, in the European region
which had seen such devastating violations of human rights leading up
to World War II. The Congress of Europe convened at the Hague in May
1948, adopted a Message to Europeans, proclaiming that 'We desire a
Charter of human rights guaranteeing liberty of thought, assembly and
expression as well as the right to form a political opposition and we
desire a Court of Justice with adequate sanctions for implementation
of this Charter. ...

The purpose was to preserve the democracies of Europe against a return
to totalitarianism. The European Convention on Human Rights and
Fundamental Freedoms was drafted and adopted in 1950, based on the
Universal Declaration of Human Rights. It provided for a more
efficient machinery of supervision than anything existing under
international law. In subsequent years, further human rights have been
added by adopting several additional protocols to the Convention.
Economic and social rights were for practical reasons not included in
the Convention of 1950, but are found in the other major human rights
instrument of the Council of Europe, the European Social Charter that
was adopted in 1961.

The CSCE and the OSCE In the 1970s, another initiative was underway in
Europe: the so-called Helsinki process. Pioneered by the German
Chancellor Willy Brandt, European countries in the East and the West,
together with the United States and Canada, sought to promote a
dialogue across the ideological divisions. It led to the adoption of
the Helsinki Final Act in 1975, which included as one of its basic
principles the promotion and protection of human rights.

The impact of the Helsinki Final Act over time was substantial. The
participating states, east and west, undertook the obligation to
publish inside their countries the Helsinki Final Act and to provide
information about it, which was duly done. The awareness of this
institution contributed to the beginning of an internal debate in
Eastern Europe and the Soviet Union about human rights issues. A slow
but irreversible process was set in motion, culminating with the
glasnost and perestroika policies of the Gorbachev period in the
Soviet Union, the fall of the Berlin Wall, and finally the dissolution
of the Soviet Union in 1991.

The follow-up of the Helsinki Final Act was carried out in the
framework of the Conference on Security and Co-operation. One of its
legs was the so-called Human Dimension. Several meetings were held
under this thematic umbrella, preparing standards and mechanisms on
pluralist democracy, on the rights of minorities, on the rule of law,
and in other fields, all based on the Universal Declaration of Human

In 1994 at the follow-up conference in Budapest the conference was
transformed into a standing Organization on Security and Cooperation
in Europe (OSCE), including several secretariat institutions, such as
the Office on Democratic Institutions and Human Rights (ODIHR),
located in Warsaw.

OAU and the African Charter on Human and Peoples' Rights In 1981, the
Heads of State and Government of the Organization of African Unity
(OAU), convening in Nairobi, adopted the African Charter on Human and
Peoples' Rights. It entered into force on October 21, 1986. It
provides for the establishment of an African Commission on Human and
Peoples' Rights, with promotional and protective functions and with no
restriction on who may file a complaint with the Commission. Thus
signatory states, individuals, groups of individuals, and
nongovernmental organizations may all file, whether or not they are
themselves victims of the alleged violation.

The African charter does not call for a human rights court. It has
been argued that African customs and traditions emphasize mediation,
conciliation, and consensus rather than the adversarial and
adjudicative procedures that are common to Western legal systems. At
present, however, there is a move towards the establishment of a

The African charter contains not only rights but also duties to the
family, society, state and the international African community. As to
the rights included, it provides for economic, social, and cultural
rights as well as civil and political rights. In contrast to both the
European and American conventions, it also recognizes the rights of
groups. The right of peoples to self-determination is elaborated in
the right to existence, equality and non-domination. Furthermore,
'solidarity' rights are included: the right to economic, social, and
cultural development and the right to national and international peace
and security. An African Commission on Human and Peoples' Rights has
been established and is becoming increasingly active. Plans are now
also discussed for the establishment of an African Court on Human and
Peoples' Rights.

In his address to the United Nations Commission on Human Rights on
March 16, 1998, the Secretary General, Mr. Kofi Annan -- himself an
African --quoted his address to the Organization for African Unity in
Harare in 1997 where he reviewed the evolution regarding human rights
in Africa, with the following words:

In the past five decades, Africa has been through a series of
transformations. First, there was decolonization and the struggle
against apartheid; then, there was a period marked and marred by civil
war and military rule; now, I believe, it is time for Africa's third
wave: a wave of peace rooted in democracy and human rights. The
success of the third wave begins with a simple proposition: the will
of the people. All across the world, the evils of coups are becoming
increasingly recognized. Yet some Africans still view the concern of
human rights as a rich man's luxury for which Africa is not ready; or
even as a conspiracy, imposed by the industrialized West. I find these
thoughts demeaning -- demeaning of the yearning for human dignity that
resides in every African heart.

No regional mechanism in Asia -- so far

The region of Asia has not yet established its own regional system for
human rights. Arguments have been heard about a separate set of Asian
values. The proposition that there is a common set of Asian values,
different from those of universal human rights has, however, not found
wide support. On the contrary: Asian governments endorsed the
Declaration of the World Conference of Human Rights which in its first
paragraph of the operative part reaffirms the universal character of
human rights. This has also been repeated by workshops held in the
region to discuss the possibility of establishing regional mechanisms
for human rights. The most recent of these workshops, composed of
government representatives of the Asian region and addressed by the
United Nations High Commissioner for Human Rights was held in the
beginning of March 1998 in Tehran. The workshop reaffirmed the
universality, indivisibility and interdependence of human rights 'in a
region proud of its rich cultures, religions and diversities' and
established a framework for regional technical co-operation in the
Asia-Pacific. The purpose of the framework is to strengthen national
capacities for the promotion and protection of human rights and to be
a means of facilitating further consideration of regional co-operation
on human rights, including possible regional arrangements. Part of the
framework is to prepare national plans of action for the promotion and
protection of human rights and to strengthen national capacities to
deal with these issues, to promote human rights education, to
establish national institutions or strengthen those that exist for the
promotion and protection of human rights, and finally to draw up
strategies for the realization of the right to development and
economic, social and cultural rights. It is planned in co-operation
with the United Nations Office of the High Commissioner for Human

Problems and prospects of geographical diffusion

While the increasing nominal acceptance of universal human rights is
encouraging, it is also necessary to recognise that the rights will
only slowly and gradually be absorbed in cultures and political
systems where they have, so far, been alien. Regional human rights
institutions in Europe, the Americas, in Africa and possibly in Asia
may help, but it will take time. Sensitivity has to be shown, also, to
local cultures, but not to the extent of tolerating practices which
under the name of culture serve to maintain exploitation, dominance
and discrimination.

6. Paths to the future -- global governance and human rights

The United Nations Charter is based on the system of states, and
international human rights law places the obligations to protect and
ensure human rights on the states. In the process of globalization now
taking place, there is an accelerating transformation of the state
system. We have, therefore, to ask what mechanisms will take care of
human rights in the future.

This is a subject that would require a long article by itself, and
only a few hints can be given here. In the global market-economy,
interconnections are intensifying and world trade and investment
continues to grow. Multinational companies with economic powers far
stronger than those of many states are exercising an unprecedented
power. International financial institutions and the World Trade
Organization may well become more powerful than the UN family
including the human rights bodies. It has been suggested that there is
a relationship between globalization and the forms of internal anarchy
by way of chaotic internal conflicts which has been seen in recent
years. Globalization increases inequality and insecurity, which
contributes to the conflagration of religious and ethnic conflicts. If
it is true that globalization is accompanied by fragmentation, then
the established mechanisms may not be sufficient to handle the

National economic policy is becoming increasingly circumscribed, which
leaves a decreasing scope for states to fulfil their obligations under
human rights instruments. The nation-state appears to be losing some
of its role as the agent to protect and ensure human rights. On the
positive side, networks are developing, including the growth of
non-state institutions and private concerns linking up across
international borders. To an increasing extent these will have to join
in the responsibility for human rights realization. At one end,
'bottom up' approaches are emerging as a response to economic and
environmental policy. At the other, global effects of internal
political activities require international monitoring and control
through increasing collaboration with other states through
international organizations and networks.

Civil society, represented by non-governmental organizations, has
become an important actor in world society. Of particular relevance
are groups concerned with development, human rights, and the
environment. They increasingly influence and even shape international
politics. Since the adoption of the Universal Declaration, the number
of international organizations has multiplied. There are several
thousand intergovernmental organizations and nearly 20 000
non-governmental organizations worldwide. About 2000 of them have been
granted observer status with the United Nations and they regularly
attend international conferences.

While the UN system continues at the central position in this evolving
global architecture, competing national interests continue to weaken
its capacity to act. The awareness is increasing, however, that global
governance can only be assured by strengthening the rule of law
worldwide. Global governance will not mean one single global
organization but a wide network of institutions. Essential to the
function of that network will it be to make rule of law more effective
for the international framework as well, to contain the pretensions of
the powerful -- whether they be states or multinational corporations
--and to bolster the rights of the weak.

An increasing number of problems are to be solved by co-ordinated
activities from the local to the global level. This requires
universally recognized values and principles, and these are to be
found in the international human rights instruments that have been
elaborated on the basis of the Universal Declaration. Human rights
have an integrating role to play in the normative system of the
evolving world society. They can link together the states, the
individuals and the numerous intergovernmental and nongovernmental
organizations into the world community. While uncertainties and
unpredictabilities are numerous, the possibilities are there also --
and to a greater extent than in any earlier time of history. I
consider it justified to claim that the Universal Declaration, by
inspiring and shaping the conceptions of common values, has
contributed more than any other document to open up those

PHOTO (COLOR): Release from Slavery in the United States, anonymous
wood engraving, 1865. AKG Paris

PHOTO (COLOR): Suffragette under arrest in Dundee, Scotland, 1910.


By Asbjorn Eide

Asbjorn Eide is founder, Director (19871997) and senior fellow of the
Norwegian Institute of Human Rights, University of Oslo, Norway,
email: asbjorn.eide@nihr.uio.no. He is a long-standing member and
former Chairman of the United Nations Sub-Commission on Prevention of
Discrimination and Protection of Minorities, where he also chairs the
Working Group on Minorities. He has published extensively, including
co-editing 'Economic, Social and Cultural Rights', 'Human Rights in
Perspective' and 'The Universal Declaration of Human Rights: A