International Bill of Human Rights

Charles Malik

President of the Economic and Social Council, Rapporteur of the Commission on Human Rights and Minister of Lebanon in the United States.

AFTER TWO YEARS of work a complete draft International Declaration of Human Rights has been drawn up by the eighteen-member Commission on Human Rights, which concluded its third session on June 18. The Declaration itself as well as the Commission's report to the Economic and Social Council containing this document were both adopted 12—0, with 4 abstentions (U.S.S.R., Byelorussian S.S.R., Ukrainian S.S.R. and Yugoslavia).

The Charter refers to "human rights and fundamental freedoms" in at least seven places (the preamble and articles 1, 13, 55, 62, 68 and 76). One of the aims of the United Nations is "to achieve international cooperation... in promoting and encouraging respect for human rights and fundamental freedoms." But despite this Charter insistence on human rights, nowhere does the Charter define precisely what these rights are. The present Declaration is in effect a filling out of this gap in the Charter; it is the definitive explication of the pregnant phrase of the preamble, "the dignity and worth of the human person."

Both in its nuclear and in its definitive form the Commission on Human Rights has been under the inspiring chairmanship of Mrs. Franklin D. Roosevelt. Mrs. Roosevelt brings to the Commission dignity, patience, prestige, breadth of understanding, genuine zest for the fundamental freedoms and a revered name that is now historically associated throughout the world with the cause of human rights. Her services to this cause have been truly invaluable.

The Commission has had three regular sessions and its drafting committee has met twice. From the very beginning it became clear that our task was three-fold.

FIRST, we must elaborate a general Declaration of human rights defining in succinct terms the fundamental rights and freedoms of man which, according to article 55 of the Charter, the United Nations must promote. This responsible setting forth of the fundamental rights will exert a potent doctrinal and moral and educational influence on the minds and ways of men. It will serve, in the words of the present Declaration, "as a common standard of achievement for all peoples."

SECOND, there was the insistent need of something more legally binding than a mere Declaration. Such a document can only be a convention, an international treaty, setting forth in precise legal terms the maximum area of agreement to which governments are willing to be legally bound in this domain. What the convention loses by reason of its more restricted subject-matter, it makes up for by the fact that those who sign it are willing to covenant themselves into the strict observance of its terms. Hence we have called it "the Covenant on Human Rights."

FINALLY, it was obvious we needed adequate machinery for making sure that human rights are observed and for dealing with cases of their infraction. We called this machinery "Measures of Implementation." The Covenant itself is in a sense a measure of implementation; for with it we move from the level of mere Assembly resolution to that of an international treaty whose observance or infraction is already regulated by well-established international law. But human rights are more subtle and internal than any formal-external international relations which have hitherto been brought under the dominion of so-called "international law"; the Charter in any event imposes upon the United Nations the obligation of promoting "universal respect for, and observance of, human rights" so that from both points of view it is necessary to pass beyond the limited degree of implementation vouchsafed by the Covenant.

Thus Declaration, Covenant, Implementation: these are three basic themes around which our concern in the Commission has turned and which constitute together "the International Bill of Human Rights."

The Commission devoted almost its entire third session to revising earlier drafts of the Declaration taking into account comments which had been submitted by Member Governments. The task was in itself so formidable that there simply was no time to examine the questions of the Covenant and of Implementation. While some valuable work has already been done on these two aspects of the Bill (e.g. on Implementation in the second session of the Commission, and on the Covenant in the second session of its Drafting Committee), they are still in a relatively primitive state.

THE DECLARATION

The articles of the Declaration dealing with political rights cover such principles as the right to life, liberty and security of person; freedom from slavery and cruel or in-human treatment; the right to recognition as a juridical personality freedom from unreasonable interference with privacy, family, home, correspondence or reputation; liberty of movement and free choice of residence within each state and the right to leave any country including one's own. In the same group might be classified the provisions applying to civil and criminal cases, such as access to independent and impartial tribunals; freedom from arbitrary arrest and from ex post facto laws; the right to a nationality and to participation in Government; the right to asylum; and freedom of information, assembly and association.

The economic and social rights are covered by a number of articles which deal with the right to work and to social security, the right to own property, the right to health and well-being through adequate standards of food, clothing, housing and medical care, the right to education, the right to rest and leisure, the right to found a family, and others.

The affirmation of the freedom of the intellect, the freedom of the will and man's ultimate freedom with respect even to God, is made in article 16.

All of the above articles may be termed constitutive: they define the fundamental rights and freedoms which constitute man's material, economic, social, political, intellectual, moral and spiritual natures. On the other hand there are four articles which may be termed regulative: they regulate the constitutive articles between themselves both as to their applicability and mutual relationships. Articles 2 and 6 are general non-discrimination articles: they are articles of equality. Article 27 is a general-limitation article wherein man's rights are balanced by his duties towards others. Article 26 is the right not only to these rights but also to their actual realization through "a good social and international order." The latter is obviously the right to the United Nations.

There remain only the first and last articles. The first expresses the three fundamental rights from which everything else flows, namely liberty, equality and fraternity, and attempts to ground them in man's rational and moral nature. The last article is the article of inner consistency: it states that nothing should flow from this Declaration that can contradict or nullify its effect. Thus no person aiming at the destruction of the fundamental rights can take cover under any of the freedoms granted by this Declaration and no state abrogating in practice any of these rights and freedoms can take umbrage under the general limitation provisions of article 27.

COVENANT

The Drafting Committee which met early in May devoted most of its labors to the elaboration of a draft Covenant on Human Rights. Because the full Commission had no time to examine this draft, it is now transmitted to the Economic and Social Council without comment as an annex of the Commission's present report. This draft Covenant covers only the more traditional civil and political liberties. The majority of the Committee felt that the so-called economic and social rights, while certainly fit for affirmation in the Declaration, cannot be worked out in the form of a convention as yet; at any rate they should not in their view form part of this first attempt at a Covenant.

IMPLEMENTATION

The question of Implementation is in an even more inchoate state. In a draft for the preamble submitted by the Soviet representative, it was proposed that the Declaration itself contain explicit injunction to the governments concerning Implementation. The Soviet preamble would have the General Assembly recommend to all Member States to use the Declaration "at their discretion in taking the appropriate legislative and other measures in the system of education." Nothing was more striking in Professor Pavlov's participation than his repeated insistence that all these rights and freedoms remain "purely formal" so long as they are not "materialized" by the direct guarantee and action of the State.

The French Delegation also proposed to insert an article which would state explicitly "that it is the duty of every State to establish an efficient judicial and administrative system to prevent, punish and remedy any violation of the principles stated in the Declaration." Professor Cassin suggested also other texts for the Declaration which would have a direct bearing upon Implementation.

But all these proposals failed of adoption by the Commission. Mrs. Roosevelt explained that her delegation feared that the inclusion of articles on Implementation in the Declaration might lead to the abandonment of the project for a Covenant. The Commission finally decided to transmit to the Economic and Social Council without comments the documentation which has so far accumulated on Implementation.

This documentation is referred to in a separate annex to the Commission's present report and includes the report of the Working Group on Implementation at the Commission's second session in Geneva, a proposal by France for the creation of a separate Commission to supervise the observance of human rights, Professor Cassin's statement on this question, a joint United States-China proposal for the appointment of a committee by the States adhering to the Covenant, an Indian amendment to this United States-China proposal and the original Australian proposal for the establishment of an International Court on Human Rights.

During the third session the Commission had no time to examine the draft Convention on the Prevention and Punishment of Genocide which was prepared by an ad hoc committee on that subject. However, the Commission did express the opinion that the draft represented a sufficiently appropriate basis for decisive action by the Council and the General Assembly during their coming sessions.

THREE BASIC ISSUES

In the elaboration of the Bill of Rights, and especially of the Declaration, the most important basic issues, whether explicit or presupposed, were, in my opinion, three. There was first the question as to the extent to which the Declaration should explicitly recognize the rights of the state. Most of the members believed that the Declaration should express in simple terms the fundamental individual freedoms; that it was a declaration of human and not of state rights. The U.S.S.R., Byelorussian, Ukrainian, and Yugoslav representatives, on the other hand, emphasized the duty of man to the state and to the community, and urged that the Declaration contain more explicit safeguards of the sovereign rights of the "democratic state." The discussion of the meaning and possible ambiguity of this last phrase was one of the most important debates in this session of the Commission.

The second basic issue was the degree of emphasis to be given the individual-personal rights on the one hand, and the so-called economic-social rights on the other. Everybody wanted to see both types of right affirmed; the only difference was as to emphasis and subordination. Professor A.V. Pavlov of the Soviet Union, and the Soviet states in general, interpreted the problem of human rights as being essentially that of the economic and social rights of "the broad masses of the people," and of the duty of the state to guarantee these rights to them. The United States and the United Kingdom, on the other hand, laid greater stress on the more traditional individual liberties, and in any case would not have the state alone responsible for "insuring" the economic and social rights to the people. Professor Rene Cassin of France took an intermediate position; while not overlooking the traditional values, "social security" to him was of the essence of human rights, and precisely because it is not traditional and well-established it requires special emphasis.

The third basic issue was not always present to the mind of the Commission. It was nevertheless there, at the base of every debate and every decision. It is the question of the nature and origin of these rights. By what title does man possess them? Are they conferred upon him by the State, or by Society, or by the United Nations? Or do they belong to his nature so that apart from them he simply ceases to be man? Now if they simply originate in the State or Society or the United Nations, it is clear that what the State now grants it might one day withdraw without thereby violating any higher law. But if these rights and freedoms belong to man as man, then the State or the United Nations, far from conferring them upon him, must recognize and respect them, or else it would be violating the higher law of his being. This is the question of whether the State is subject to higher law, the law of nature, or whether it is a sufficient law unto itself. If it is the latter, then nothing judges it: it is the judge of everything. But if there is something above it which it can discover and to which it can conform, then any positive law which contradicts that transcendent norm is by nature null and void. Finally, if my fundamental rights and freedoms belong to me by nature, then they are not a chance assemblage of items: they must constitute an ordered whole. Responsible inquiry must then exhibit their inner articulation. For it may be that some are more ultimate than others. It may be that a spiritually free but economically insecure person is better than the richest millionaire who knows nothing of spiritual freedom.

The deepest formulation of the present crisis in human rights is not that these rights have been brutally violated in the recent war; nor is it that there is not enough clamor demanding their proper establishment and protection; nor certainly is it that the United Nations has done nothing about them. There is more talk today about human rights than ever before, and the United Nations has a full-fledged Commission wholly dedicated to that cause.

The real crisis in human rights does not lie along any of these lines. It consists rather in the fact that people today do not believe they have natural, inherent, inalienable rights. You should see and hear modern man argue about his rights! Can you suggest to him that he is originally and by nature possessed of his fundamental rights? The merest suggestion that there is nature, reality, truth, peace and rest, an unchanging order of things which it is our supreme destiny to know and conform to, is anathema to modern man. He seeks his rights not in and from that order, but from his government, from the United Nations, from what he calls "the existing world situation" and "the last stage in evolution." Destitute and desolate, he goes about begging for his rights at the feet of the world, and when the Commission votes an article by 10 to 8, he rejoices that there, there he is granted a right! Having lost his hold on God, or more accurately, having blinded himself to God's constant hold on him, he seeks for his rights elsewhere in vain. The spectacle of a being having lost his proper being—can there be anything more tragic?

This article was originally published in the July 1948 issue of the United Nations Bulletin. At the time of its drafting, Malik was the President of the Economic and Social Council, Rapporteur of the Commission on Human Rights and Minister of Lebanon in the United States.