Abstract: The Universal Declaration of Human Rights was the first common commitment of the international community to human rights. It demonstrated the belief and determination of humanity to maintain peace, democracy and human dignity. The process of formulating the Declaration was difficult. But in the spirit of cooperation, countries finally succeeded in reaching a consensus on human rights. The making of the Universal Declaration of Human Rights had great value and significance for promoting world peace and development, and it has had a far-reaching impact on the rule of law in international human rights and the development of the human rights legal systems in various countries. A re-examination and analysis of the process of formulating the Universal Declaration of Human Rights will help us understand the purposes and objectives of the Declaration and review the great value of the spirit of the Declaration to the world today.

 

Keywords: Universal Declaration of Human Rights, human rights, processing of formulating, significance

 

The Universal Declaration of Human Rights (“Declaration”) is the first document in history in which the international community set out a joint commitment to protect human rights. Its formulation was not only an important manifestation of humanity’s determination to maintain peace and democracy in the post-World War II era, but also established the spirit and purpose of human rights to be followed by all countries in the world and which constitute the basic human rights standards. In the process of formulating the Declaration, although there were differences and contradictions arising from the different understandings of human rights among countries with different social systems and historical and cultural traditions, in the spirit of cooperation, countries reached agreement because the Declaration fully reflects the determination of the war-torn peoples of the world to defend their rights from violations and promote human progress. The world has undergone profound changes since the Declaration was adopted by the United Nations General Assembly on December 10, 1948. International human rights laws based on the Declaration and international human rights conventions have become a complete normative system. However, peace remains an unresolved issue and development remains a daunting challenge. Human rights violations are still common all over the world. Some countries even ignore the purpose of the Declaration and deliberately create human rights confrontations and set up obstacles for the international community to work together to safeguard human rights. To this end, a re-examination and analysis of the process of formulating the Declaration will give us an opportunity to not only better understand the purposes and objectives of the Declaration formulated by the international community in the early post-war period, but also fully appreciate the great value of the spirit of the Declaration for promoting world peace and development today.

 

 

The Declaration was formulated under the auspices of the United Nations after the end of the World War II. It was the product of the global movement of human rights protection in the early post-war period. However, speaking of its origin and motivation, the unprecedented catastrophes of war on human life and property directly resulted in the rise of the international movement for the protection of human rights after the war, and the agreements and documents reached between peace-loving and democratic countries during the war also provided a solid organizational foundation and a set of ideas and norms for the subsequent formulation of the Declaration. In this sense, the Declaration is not only a manifestation of the progressive spirit of humanity after the war, but also a result of humanity reaffirming human rights, personal dignity and worth after the great human suffering from the war so as to “save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.”

 

 

World War II was a milestone and turning point in the internationalization of human rights. The wars of aggression initiated by the fascists and militarists of Germany, Italy, and Japan and their barbaric wartime acts were the most serious violations of human dignity and the right to life. In the face of these severe challenges, peace-loving and democratic countries were forced to abandon prejudice because of social systems and ideologies, and unite to begin “an unprecedented war for human rights.”¹ In this war, a world movement for effective protection of international human rights in all possible forms emerged. Safeguarding human rights was no longer just a matter of domestic political and legal concern. It was also gradually made part of international politics and international law. The internationalization of human rights and the legalization of international human rights protection have become an inevitable choice for the international community in the post-war period. According to John Humphrey, first Director of the Division of Human Rights and Secretary of the Commission, the war “not only brought unprecedented developments in laws on individuals, but also changed the structure and nature of the legal system, not only added new standards to the existing system, but also changed the nature of the system. Everything that has happened is revolutionary. The parallel system of the past has now become vertical. The law of international law, a traditionally inter-state relationship, has now extended to cover other entities, including individual men and women, who have been objects of international law for a long time until now when they become the subjects of inter-national law.”² The question of whether an individual has become the subject of inter-national law is of course open to debate, but the impact of World War II on the entire international legal system is unquestionable. At least, one of its most direct manifestations is the emergence of international human rights laws which are an indispensable important component in the international legal system.

 

The basic theory of fascism is built on extreme power and on extreme contempt for and trampling over human life and dignity. According to the “racial supremacy theory” and concept of “lebensraum” (living space), which were the core of Hitler’s political platform, there are good and bad races and the Aryan race was the “master race”, while Jews, Slavs and others are inferior races. As the master race, the Aryan people had the right to enslave and rule other races, and, in order to “promote the evolution of humanity”, the inferior races should be completely eliminated. Also in Hitler’s view, the Versailles settlement after the end of World War I deprived the people of Germany “living space”, so Germany must expand outwards to have the living space needed for the development of the German nation. If the theory of racial superiority is just based on ridiculous delusions, the idea of living space incited the sentiments of the Germans after World War I and allowed fascism to spread rapidly. Similarly, although Japanese militarism tried to conceal its power politics and tried to use the sufferings of Asian countries in modern times to pass itself off as “liberators” of the Asian peoples, its brutality in war still fully exposed its barbarism and aggressive nature, which can be seen as being no different from fascism.

 

From today’s point of view, the theory of fascism is of course based on the values that are anti-humanity and anti-science delusions. The history of human evolution has already confirmed the equality of different races. The theory of “living space” is built on unadorned power politics. Japanese militarism went even farther than Western colonists. The blind nationalist sentiment that this theory incited at that time made World War II the most tragic in human history, which lasted more than eight years and affected more than 60 countries in the world, accounting for four-fifths of the world’s population. The genocidal policy of fascist Germany against European countries, especially the Jewish people, and the brutal slaughtering by Japanese militarists of the peoples of Asian countries resulted in the deaths of 50 million innocent people. China and the Soviet Union alone, each suffered 20 million deaths, the two countries making huge sacrifices in the defeat of fascism and militarism. The war also laid countless cit-ies, villages and towns to waste and burned countless factories, ships and bridges into ashes, and destroyed a large number of historical and cultural heritage treasures. The high-handed fascist rulers also deprived their own people of basic political freedoms and civil rights.

 

In the face of the threat of fascism, peace-loving and democratic countries, to ensure their own survival, political parties, social groups, and religious organizations raised the banners of independence, liberation and freedom. Human rights became the slogan of the peoples of the world who were to overcome fascism. From the very beginning of the European War, British Prime Minister Churchill declared the goal of the War was “to establish individual rights on solid rocks”.³ Stalin made it clear that this was a war to “safeguard the freedom of our motherland” and “strive for the independence, democracy, and freedom for the European and American peoples”⁴. Mao Zedong also announced after the outbreak of the Soviet-German war that “the current mission of the Communists in the world is ... to defend the freedom and independence of all nations.”⁵ United States President Roosevelt proposed the famous Four Freedoms before the United States entered the war, claiming that: “Freedom means the supremacy of human rights everywhere. Our support goes to those who struggle to gain those rights and keep them. Our strength is our unity of purpose.” “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 from want [...] The fourth is freedom from fear [...]”⁶ The common purposes and aspirations of human rights not only decided that the war was for human rights, but also laid the foundation for the popularization of international human rights trends after the War.

 

 

If the human rights purpose of the War by various democratic countries laid the foundation of the ideas and concepts of the Declaration, then a series of key documents jointly formulated by anti-fascist countries during the War provided the basic framework and ideas for the principles and norms of the Declaration.

 

The first normative and organizational basis for the Declaration was provided in the Atlantic Charter, a joint declaration released by U.S. President Franklin D. Roosevelt and British Prime Minister Winston Churchill on August 14, 1941. This Charter made by the United States and Britain set out a series of basic human rights principles on the purpose of the war, including the following passages: “they [the United States and Britain] desire to see no territorial changes that do not accord with the freely ex-pressed wishes of the peoples concerned;” (Principle 2); “they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them;” (Principle 3); “they desire to bring about the fullest collaboration between all nations in the economic field with the object of securing, for all, improved labor standards, economic advancement, and social security;” (Principle 5); “they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want.” (Principle 6)⁷ These principles were reflected in the spirit of the United Nations and in the Declaration.

 

After the outbreak of the Pacific War, 26 anti-fascist countries including the United States, the Soviet Union, Britain, and China jointly signed the Declaration of the United Nations on January 1, 1942, officially proclaiming that the purpose of the war was to safeguard human rights. The declaration states that “Governments signatory [...] being convinced that complete victory over their enemies is essential to defend life, liberty, independence and religious freedom, and to preserve human rights and justice in their own lands as well as in other lands, and that they are now engaged in a common struggle against savage and brutal forces seeking to subjugate the world, [...]”.⁸ This purpose of the Declaration was later accepted by the United Nations as an im-portant reason and purpose for its establishment and also became one of the purposes of the Universal Declaration of Human Rights.

 

As a worldwide organization composed of many countries of different social systems, ideologies and historical and cultural traditions, the United Nations has not played its due role in safeguarding international security and promoting world development for a long time and it even became a stage of power struggle between big powers. However, its achievements in international human rights protection cannot be questioned. As Tom J. Farer commented, “from the very beginning, the United Nations seemed to be destined to be a human rights institution”.⁹ The Charter of the United Nations is not a purely international human rights document; it provides the basis and principles for the Declaration. The Charter of the United Nations declares in the preamble: “We the peoples of the United Nations determined to save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, [...]”

 

In the specific provisions, there are six direct references to human rights and hu-man rights protection in the UN Charter. Article 1, paragraph 3 states: “[...] promoting and encouraging respect for human rights and for fundamental freedoms for all [...]”. Article 13, paragraph 4, states: “The General Assembly shall initiate studies and make recommendations for the purpose of: [...] promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”. Article 55 states: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, 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”. Article 62, paragraph 2 states: The Economic and Social Council “may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all”. Article 68 states: “The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required for the performance of its functions.” Article 76 states that: “The basic objectives of the trusteeship system [...] shall be ... to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world.”

 

These norms define the principles and values of the subsequent Declaration in several aspects: First, it is not mandatory. The authority and purpose of the United Nations in the protection of human rights are only to play the general roles of “studies”, “promoting”, “encouraging”, and “recommendations.” It is mainly to create an environment and atmosphere conducive to human rights and provide countries with the external motivation and support for human rights protection. Second, it applies universally. The protection of human rights is the common responsibility of all countries and all peoples. The human rights standards formulated by the United Nations, which have been jointly recognized by all member states, should be strictly observed and maintained, with no exception. Third, the subjectivity of the state includes two indivisible aspects. On the one hand, human rights are essentially matters within the scope of national sovereignty, and the Charter clearly states that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” On the other hand, the United Nations does not grant rights to individuals, who are not the subjects of international human rights law. It should be said that these principles are in line with the basic norms of international relations. They not only reflect a high degree of human rights, but also safeguard the subject status of countries in safeguarding human rights.

 

The historical process of the internationalization of human rights and the legalization of international human rights protection during World War II demonstrated the historical logic of human progress and also determined the inevitability of the Declaration being formulated after the war. However, it should also be noted that although all countries regard human rights as one of the purposes of the anti-fascist war and post-war rehabilitation, it is clear that the understanding of human rights and of the status and role of the international community in safeguarding human rights are not identical. For example, Churchill equated “human rights” with “individual rights”; Roosevelt summed them up as “four freedoms”; Stalin emphasized ”independence“ and ”democracy”; China did not oppose “individual rights”, but demanded “respect for political independence and territorial integrity”.¹⁰ Such independence and integrity are regarded as a prerequisite for human rights protection. During the war, due to the common goal of anti-fascism efforts, these different understandings of human rights did not lead to too many contradictions and disputes. However, after the end of the war, human rights and their protection, which are closely linked to the rights and interests of all countries, made differences surface and had an important impact on the formulation of the Declaration.

 

 

After the war, the United Nations Charter embodied the determination of the countries of the world to avoid the scourge of war for humanity and reaffirm the fun-damental human rights and respect for humanity. However, as a constitutional doc-ument of the United Nations, a global political and economic organization, the UN Charter is not an international human rights document in the strictest sense and it was felt to be deeply inadequate by many countries. Therefore, when the United Nations was proclaimed, the task of making a special international human rights charter was put on the agenda of the Economic and Social Council.

 

During the war, the United States considered the addition of a special human rights bill to the Charter when it participated in the formulation of the UN Charter. The US State Department submitted a proposal saying that the United States should advocate some specific provisions for human rights protection in the UN Charter, and that the United Nations should also be organized in a way which provided the “means to ensure human rights needs.”¹¹ But President Truman then did not adopt this proposal for political reasons. Other major powers were also worried that an emphasis on human rights would weaken the UN’s primary objective of international security. Therefore, after consultations with Britain, France, and the Soviet Union, US Secretary of State Edward Reilly Stettinius made an announcement as soon as the San Fran-cisco Conference was opened, saying that: “This session cannot attempt to enumerate individual and collective human rights and fundamental freedoms in this Charter.”¹²

 

Though major powers had reached agreement, other countries nonetheless put forward their own proposals during the San Francisco Conference. Chile, Cuba, Panama, Uruguay and other countries all asked the United Nations to provide clear protection for human rights. For example, Uruguay proposed that the Charter of the United Nations should declare that one of the purposes of the United Nations was to promote the recognition and protection of the respect for fundamental freedoms for all, regardless of race, gender, religion and social status, and should draft a special charter to provide for these freedoms and rights, which should be submitted to the UN General Assembly for consideration within six months. According to Panama’s proposal, the Charter of the United Nations should declare that one of the purposes of the United Nations is to “maintain and abide by the standards established by the Declaration of Fundamental Human Rights, which should be attached to the Charter as one of its parts.”¹³

 

On January 10, 1946, after the opening of the first session of the UN General Assembly, the Panamanian representative again submitted a proposal on basic human rights, demanding the proposal be formally listed in the agenda of the Assembly. On February 16, the Economic and Social Council established the Commission on Human Rights in accordance with Article 68 of the UN Charter, and at the same time began the preparation of the Universal Charter of Human Rights. On October 31, the UN General Assembly accepted the proposal of the representative of Panama and sub-mitted it to the First Committee (the Disarmament and Security Committee) and the Third Committee (the Social, Humanitarian and Cultural Committee), asking them to initiate studies of the proposal as soon as possible, in order to provide guidance for the Commission on Human Rights on the drafting of the world’s documents on human rights.

 

The Commission on Human Rights, established in February 1946, was originally composed of representatives of nine countries in unofficial capacities. Later the number of representatives increased to 18. In accordance with the provisions of the Economic and Social Council, the job of the Commission was to submit proposals, recommendations, and reports to the Economic and Social Council on matters such as the world human rights charter, the protection of freedom of the press, the protection of minorities, the prevention of racial discrimination, and the maintenance of the status of women. Its top task was to draft a world human rights charter.

 

On January 27 – February 10 1947, the Commission on Human Rights met for the first time at Lake Success, New York, the United States and began a general discussion on the drafting of a world human rights charter. The meeting first discussed the constitution of the human rights charter. Representatives from various countries put forward three options: First, the human rights charter could be adopted as a resolution of the UN General Assembly or in the form of a joint declaration. The latter option won the support of most countries. Second, the human rights charter should be adopted in the form of a binding multilateral convention. This idea was supported by countries including Australia and India. Third, a few countries proposed to amend the UN Charter to incorporate the Universal Human Rights Charter. According to the opinions of most countries, the Commission on Human Rights decided to draft the World Human Rights Charter in the form of a declaration. At the second meeting of the Commission on Human Rights held in December of the same year, representatives of various countries adopted Resolution No. 46 (IV) after consultation, deciding that the human rights charter would consist of three parts: A Declaration including the meanings of various rights and embodying the spirit of human rights; a multilateral convention regulating these rights and open to new member states; and measures governing the implementation of the provisions of the convention (i.e. the subsequent optional protocol).

 

After the first meeting of the Commission on Human Rights, the Drafting Group composed of Eleanor Roosevelt (United States), chairman of the Commission, P.C. Chang (China), vice-chairman, and Charles Malik (Lebanon), the Rapporteur began to draft the Declaration. These people from countries of vastly different historical and cultural traditions encountered great differences in their views and interests. The drafting work was very slow and was once suspended. At the second meeting of the Economic and Social Council, the representative of the Soviet Union demanded to expand the Drafting Group. The new Drafting Group consisted of representatives from eight countries: the United States, China, Lebanon, the Soviet Union, the United Kingdom, France, Australia, and Chile. In order to avoid slow progress drafting due to excessive disagreement within the Group, the Commission on Human Rights asked the United Division of Human Rights to first provide an outline of the rights based on the draft declarations submitted by country representatives and individuals. The drafts submitted mainly included those by Cuban representative Gustavo Gutierrez, H. G. Wells, Hersch Lauterpacht, Wilfred Parsons, the American Jewish Congress, the World Government Association, and the Institut de Droit International. On the basis of these drafts, John Humphrey, Director of the Division of Human Rights, presided over the making of an outline. On June 9 - 25, 1947, the Drafting Group met to discuss the outline proposed by the Division of Human Rights and decided to appoint a Working Group composed of representatives from the United Kingdom, France and Lebanon to prepare the different opinions put forward at the meeting. The Working Group assigned the French representative René Cassin to prepare a new draft. (René Cassin was later awarded the Nobel Peace Prize for Peace in 1968 for his outstanding contribution to the drafting of the Declaration.)

 

After more than a year of hard work, the third meeting of the Commission on Hu-man Rights on June 18, 1948 adopted a draft declaration which incorporated various opinions under the coordination of René Cassin. After consideration by a special committee established by the Economic and Social Council, it was submitted to the Third Session of UN General Assembly, which entrusted the Third Committee to review the articles of the draft. Under Malik, Chairman of the Third Committee, the Committee held 81 meetings and passed 168 amendments. On December 6, the Third Committee sent the final text of the Declaration to the General Assembly for consideration by the end of the preliminary session of the current session of the General Assembly. On December 10, the General Assembly formally adopted the Declaration with an absolute majority of 40 votes in favor, 0 votes against, and 8 abstentions. The countries which abstained from voting were the Soviet Union, Belarus, Poland, Yugoslavia, Ukraine, Czechoslovakia, South Africa and Saudi Arabia.¹⁴

 

It took almost two years for the Declaration to be formulated from beginning to end. This process reflected the cautious attitude of countries around the world. As Charles Malik recalled, “the creation of each article and every part of each paragraph is dynamic work. In the work, many ideas, interests, backgrounds, legal systems, and ideological beliefs played their own roles. There was also lobbying and planning. Everything was very suitable, everything was in line with the rules people recognized for this competition, even when they were not in meeting sessions. We cannot possibly explain how each article and each paragraph were written. This is because each was actually full of vitality and the dynamic process could no longer be captured or reproduced.”¹⁵ Mrs. Roosevelt stated in the Commission on Human Rights: “It [the Declaration] contributes to the articles and paragraphs on human rights in the UN Charter and guides the understanding and interpretation of these provisions. It reflects the enthusiasm of all individuals and groups for the development of human rights.”¹⁶

 

The lengthy drafting process also reflected the complexity of the effort. The Dec-laration was a common document that demonstrated the desire of the human society to protect human rights. Although no country opposed the formulation of the Declaration, it was very difficult to win the recognition of all countries for the document and the process of reaching agreement inevitably went through a tortuous process because the formulation involved the ideas, positions, and national interests of different social systems, ideologies and historical and cultural traditions. In fact, the deadlock in the work of the three-person Drafting Group was indeed a reflection of such a tortuous process. But even in the enlarged Drafting Group and after the submission to the Commission on Human Rights and the Third Committee of the UN, the drafting work was still full of constant twists and turns. Even during the discussion of the Third Committee of the UN General Assembly, many countries demanded to postpone the adoption of the Declaration because of various considerations. For example, the Soviet Union and East European countries believed that the Declaration should contain the right to national self-determination; New Zealand believed that if the Declaration was adopted first, the possibility of adopting a human rights convention would be slim and, therefore, a universal convention on international human rights should be adopted first. A group of Latin American countries led by Cuba insisted that the Declaration should be based on the American Declaration of the Rights and Duties of Man adopt-ed in Bogotá, Colombia in early 1948.

 

Such difference in ideas of human rights was best reflected in the early drafting stage of the Declaration, with the three-person drafting group consisting of Eleanor Roosevelt, Charles Malik and P. C. Chang, who each represented their own traditional ideas and national interests. Especially, with scholars Charles Malik and P. C. Chang, such difference was even more obvious. Malik insisted that individual rights should take precedence over social and state rights, individual rights and freedoms should be the basis and core of human rights, and should not be infringed upon by the government. While, as in China’s Confucian traditions, P. C. Chang believed that individuals and society are inseparable, and the Declaration should not copy the paragraphs of the constitutions of the Western countries, and could not just reflect the Western ideas of human rights. He insisted that the Confucian culture and the Eastern concepts of rights should also constitute the value base of the Declaration. After the making of the draft’s outline was entrusted to John Humphrey, Chang suggested that Humphrey go to China and stay there for half a year to have a first-hand experience of the essential ideas of Confucian philosophy.¹⁷

 

In addition to social and technical reasons, the key reason for difficulties in drafting the Declaration was that the world was in the initial stage of Cold War in 1947. Political interference made it more difficult for countries to reach an agreement. The Soviet Union abstained from voting mainly for political considerations.

 

Both the United States and the Soviet Union adopted a Cold War mentality in the formulation of the Declaration. The United States strove to lead the formulation of the Declaration, believing that “the whole world should adopt our system” and “the people all over the world are expecting our support to safeguard their freedom”.

 

Truman said, “We must strive to meet human rights goals for all the people everywhere, regardless of ethnic, linguistic or religious differences... We have every reason to expect to formulate an international human rights bill that will become part of international life, just like our Bill of Rights is an inseparable part of American life.” Secretary of State Sturdinus also said, “We demand that the World Bill of Rights be enacted as soon as possible so that various countries can include it into their own legal systems.”¹⁸ To ensure such leadership, the US State Department provided Eleanor Roosevelt with a dedicated legal advisory team to offer legal and technical advice and assistance. Draft declarations provided by US civil institutions such as the American Bar Association, the American Law Institute, and the American Jewish Congress became important reference documents. This made the Declaration in line with the positions and aspirations of the United States in its main aspects. In the UN General Assembly vote, the United States took the lead to vote in the affirmative.

 

Unlike the United States, the Soviet Union at first did not show much interest in the formulation of the Declaration. But after the outbreak of the Cold War, it did not want to miss any opportunity to influence the drafting work. The Soviet Union sent its representative Alexander E. Bogomolov to become the only representative of the socialist countries in the Drafting Group of the eight countries. In drafting the Declaration, the Soviet representative insisted on the Soviet ideas of human rights in two aspects. First, the right to national self-determination. At the third meeting of the Com-mission on Human Rights held in 1948, the Soviet representative proposed that since the United Nations Charter clearly provided for the rights of equality between large and small countries and fundamental human rights, the Declaration had no reason to exclude the right to national self-determination. Second, the relationship between individual rights and state rights. The Soviet representative insisted that individual rights could not take precedence over state rights, and that international protection of human rights must not be at the expense of national sovereignty. During the discussion at the UN General Assembly, Soviet Foreign Minister Andrey Vyshinsky said, “Some people say that the Declaration of Human Rights has nothing to do with the state issue because it only focuses on individual rights. It is impossible to agree with this idea, because it is impossible to imagine the existence of individual rights without a state. The concepts of rights and law itself are linked to the concept of the state. Unless with guarantee and protection of a state, human rights will become a purely abstract concept. Empty ideas are easy to create, and they are equally easy to disappear.”¹⁹

 

Since Western countries and Latin American countries with the ideas of human rights similar to those of the West enjoyed an absolute majority in the Commission on Human Rights, these two ideas of the Soviet Union were not accepted.²⁰ It was for this reason that the Soviet representative, in the consideration of the draft declaration by the Third Committee of the United Nations, requested the Committee to adopt a resolution to postpone the submission of the draft declaration to the General Assembly for approval so as to have more time for further studies and additions. But this motion was rejected with a vote of 26 to 6.²¹ During the UN General Assembly discussion, the Soviet representative once again proposed to postpone the approval of the Declaration. It was again rejected by 6 votes in favor, 45 votes against, and 3 abstentions.²² The Soviet Union therefore abstained from voting on the Declaration.

 

 

Although the formulation of the Universal Declaration of Human Rights was by no means an easy process, was full of contradictions, differences, and struggles in the areas of various ideas, interests and powers, no country wanted to be accused of lacking in the spirit of human rights in the early days of the worldwide movement for the post-war human rights protection. The Declaration was quickly adopted and became the first global human rights document in the history of humanity to represent the common aspirations of the peoples of the world. In this sense, the value of the Dec-laration is first reflected in its content, including its purposes, principles, definition of rights and an interaction between rights and obligations, all of which have not been dealt with previously.

 

In the Preamble, the Declaration lists seven key reasons for the formulating of the Declaration, including: first, “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”; second, “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and 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”; third, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”; fourth, “it is essential to promote the development of friendly relations between nations”; fifth, “the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”; sixth, “Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”; and seventh, “a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge.”

 

 

The Declaration declares, on behalf of all the countries in the world which love peace and democracy, their determination to jointly safeguard human rights in their own countries and in the international community and provides humanity with a uniform sets of standards in the protection of human rights. It declares in the Preamble the purpose of the Declaration is to be “a common standard of achievement for all peoples and all nations, 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, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

 

The Declaration establishes three basic principles for international human rights. The first principle is progressive improvement. The Declaration states in the Preamble that the purpose of the Declaration is to establish a “common standard” for the protection of human rights. But it does not unrealistically require countries to immediately meet these standards. On the contrary, it advocates “progressive measures”, recognizing the differences between different countries and the difficulty in effectively protecting human rights in the international community. The second principle is equality. Article 1 of the Declaration states: “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” The third principle is universality. Article 2 of the Declaration states: “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Progressiveness, equality and universality are the principles of the Declaration. Neither of them should be emphasized at the expense of any other, which is the guideline for international human rights protection.

 

The Declaration lists 25 rights that should be fully guaranteed by the State. They include 19 civil and political rights and 6 economic, social and cultural rights. The civil and political rights stated in the Declaration include: life, liberty and security of person; freedom from slavery or servitude; freedom from torture or to cruel, inhuman or degrading treatment or punishment; personality rights before the law; recognition everywhere as a person before the law; equal before the law and entitled without any discrimination to equal protection of the law; an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law; freedom from arbitrary arrest, detention or exile; full equality to a fair and public hearing by an independent and impartial tribunal; the right to be presumed innocent until proved guilty; arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation; freedom of movement and residence within the borders of each state; the right to seek and to enjoy in other countries asylum from persecution; the right to a nationality; freedom from being arbitrarily deprived of his nationality nor denied the right to change his nationality; the right to marry and to found a family; property ownership; freedom of thought, conscience and religion; the right to freedom of opinion and expression; the right to freedom of peaceful assembly and association, freedom from compulsion to belong to an association; the right to take part in the government of his country, directly or through freely chosen representatives, the right of equal access to public service in his country, universal and equal suffrage. The economic, social and cultural rights set out in the Declaration mainly include: the right to social security and being entitled to realization of the economic, social and cultural rights indispensable for a person’s dignity and the free development of an individual’s personality; the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment, the right to equal pay for equal work, the right to form and to join trade unions for the protection of his interests; the right to a standard of living adequate for the health and well-being of himself and of his family; motherhood and childhood are entitled to special care and assistance; the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits; the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production; and entitlement to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

 

The Declaration demonstrates the notion of combining rights and obligations. This is also an important value of the Declaration. It breaks the monopoly of the West’s idea of absolute rights over the definition of human rights. It states that “everyone has duties to the community in which alone the free and full development of his personality is possible.” In order to implement the idea of combining rights and obligations, the Declaration also states limitations on rights, though “such limitations [...] 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”.

 

Objectively speaking, the Declaration reflects the Western concepts of human rights and regulates the individual rights based on private property, especially the civil and political rights in the Western traditions. Among the rights contained in the Declaration, there are 19 political rights for citizens, accounting for more than two-thirds of the total, and the economic, social and cultural rights are few in number and are all related to individuals. Moreover, in the Declaration are reflected a sense of unequal international hierarchy. It does not accept national equality and the right to self-determination. Instead, it recognizes trusteeship and the new colonial form, the so-called “non- self -governing” territories. Chinese scholars comment: “The Declaration is based on the theory of natural rights of the bourgeois enlightenment thinkers in the 17th and 18th centuries, and adopts European standards for the interpretation of human rights”; and “the Declaration is inevitably influenced by the bourgeois concept of hu-man rights and is more or less a tradition of the Déclaration des Droits de l’Homme et du Citoyen of France and the Bill of Rights of the United States. Such ideological basis guarantees the continuity of human rights thoughts, but constitutes the historical limitations of the Declaration.”²³ Such evaluation can be said to be objective and pertinent.

 

Nonetheless, the Declaration as the first comprehensive interpretation of human rights by the international community make human rights formerly monopolized by the West a goal pursued by all countries in the world. To a certain extent, human rights reflect the strong opposition against war and a strong desire for peace in the post-war period, which is of historical and progressive significance and thus wins wide support and approval. The civil and political rights in the Declaration in many respects provide a wider coverage than the Bill of Rights and the Déclaration des Droits de l’Homme et du Citoyen which are regarded more as Western views of human rights. The Declara-tion of Human Rights is more detailed and comprehensive. For example, the freedom from slavery, the right to freedom of movement, and the definitions of progress and freedom are not included in the two documents. As for economic, social and cultural rights, they have never been taken seriously in the West. For example, in the United States, although the concept of economic rights has gradually been accepted since the beginning of the 20th century and President Roosevelt proposed an Economic Rights Bill in 1944,²⁴ requesting it be added as a new constitutional amendment. But, after being submitted to Congress, this proposal was not taken seriously.

 

 

Furthermore, the significance and value of the Declaration is not only reflected in the expansion of the meanings of human rights, but also in many other social aspects, mainly in the following aspects.

First, the Declaration provides basic principles and a direction for the develop-ment of the entire system of international human rights protection and international human rights laws. According to the UN Commission on Human Rights resolution No. 46 (IV), the purpose of the UN drafting a legally binding international human rights convention is to “collect and summarize the 26 rights proposed in the Declaration into an international treaty on such rights and the means of their implementation.”²⁵ The International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights both clearly state in the Pream-bles that they were made “in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” and that “the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.”²⁶ In 1968, the Tehran Declaration adopted by the First World Conference on Human Rights also proposed that the purpose of the Conference was to “review the progress made in the twenty years since the adoption of the Universal Declaration of Human Rights and to formulate a programme for the future”, “reaffirming the Universal Declaration of Human Rights and the belief in the principles contained in other international instruments in this regard” and “urges all peoples and governments to dedicate themselves to the principles enshrined in the Universal Declaration of Human Rights”.²⁷ In many other important documents on international human rights protection adopted by the United Nations, such as the Con-vention concerning the Abolition of Forced Labour, the Convention on the Political Rights of Women, and the Declaration on the Right of Peoples to Peace, all state in the Preambles that they follow the spirit of the Universal Declaration of Human Rights. Other documents, such as the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the Convention on the Reduction of Statelessness, the Convention concerning Employment Policy, are direct developments and extensions of the specific provisions of the Declaration. It can be seen that the Declaration has become a fundamental document for the protection of human rights in the international community and provides the basic spirit of international human rights protection.

 

Second, not only has the Declaration had a major impact on the position of the United Nations and other international organizations on human rights, but also many regional organizations have adopted the basic principles and the spirit of the Declaration in formulating basic human rights documents for their regions. The European Convention for the Protection of Human Rights and Fundamental Freedoms, the American Convention On Human Rights, and African Charter on Human and Peoples’ Rights not only state in the Preambles that they follow the spirit of the Declaration, but also borrow the words used in the Declaration in many specific articles. In particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms, adopted shortly after the formulation of the Declaration, borrows standards and terms from the Declaration, except for provisions for some procedures and institutions.

 

Third, the Declaration has also had a major impact on the formulations and revisions of the constitutions of various countries after the War. Dutch scholars Johannes Henricus van Maarseveen and Ger Van der Tang made comprehensive statistical studies in their book Written Constitutions: A Computerized Comparative Study. Ac-cording to them, there are 22 constitutions in the world that are explicitly related to the Declaration; in the constitutions formulated after the War, no less than 43 ones are obviously influenced by the Declaration and often cite words from the Declaration.²⁸ For example, the defeated countries such as Japan, Germany, and Italy all follow the human rights spirit of the Declaration in their new constitutions, and contain a large number of provisions for the protection of human rights. The French Constitution of 1958 was also revised in line with the human rights protection provisions of the Declaration. The Guinean Constitution of 1958 declares its support for the Declaration. Fei Xiaotong, then vice chairman of the Standing Committee of the National People’s Congress, also pointed out at the 40th anniversary symposium for the Declaration held in Beijing on December 10, 1989 that China “neither rejects or denies human rights in general” and that “the rights stated in the Declaration and other international human rights documents basically correspond to the provisions of the Chinese Constitution, and in many respects the Chinese Constitution exceeds the standards of the Declaration, and in some respects are richer and more realistic. ”²⁹

 

Finally, the value and significance of the Declaration are also reflected in the fact that its spirit has gradually been accepted by the people, and clearly followed and in-voked in the practice of international human rights. When the international community condemns some countries for violating human rights, the Declaration is often cited as the basis and standard for such condemnation. For example, the resolution of the United Nations Security Council on December 4, 1963, which condemned the apart-heid system in South Africa, declared that the system “in violation of its obligations as a Member State of the United Nations and of the provisions of the Universal Declaration of Human Rights”. The UN General Assembly resolution of October 27, 1966 further announced that “the Administration of the Mandated Territory by South Africa has been conducted in a manner contrary to the Mandate, the Charter of the United Nations and the Universal Declaration of Human Rights” and decided to terminate South Africa’s mandate of Namibia.³⁰ In another example, in 1980, the International Court of Justice also announced in the judgment on the case of Iran’s seizure of the US embassy premises and staff that Iran “wrongfully ... deprive human beings of their freedom and … subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.”³¹

 

It is worth mentioning that although the Declaration is one of the most important international human rights documents today, its basic spirit is often invoked in inter-national human rights legislation and promotion practice, countries and scholars have different ideas regarding whether the Declaration is legally binding on UN member states. Most scholars believe that the Declaration is only a statement of principles and has no legal binding force; it is up to the signatory countries themselves to decide to what extent the rights stated in the Declaration are protected according to their own wishes and needs; in real life, it is more of a statement of the determination of all countries to protect human rights and the states bear only moral responsibility rather than mandatory legal obligations. Human rights scholar Tom J. Farer has stated that, “Most scholars hold the following views: the Declaration is more of a clarification of moral values than a set of legally binding norms.”³² Hans Kelsen, a well-known jurist and founder of the Vienna School, also stated that “the Declaration is not in nature an international agreement that binds the members of the United Nations.”³³ Mrs. Roosevelt stated earlier at the passage of the Declaration that “the Declaration is neither a treaty, nor an international agreement; it neither is nor wants to be an overview of a law or legal obligation.”³⁴ However, other scholars believe that the Declaration does have a binding force in the customary law sense considering the influence of the Declaration. For example, famous Chinese law expert Wang Tieya believes that the Declaration as a UN resolution should be “accepted by a state if it agrees with it, and such acceptance cannot be said to be unbinding.”³⁵ K. Kartashin, a scholar of the former Soviet Union, stated even more bluntly that “the fundamental rights and freedoms stated in the Universal Declaration of Human Rights have now been regarded by countries as legally binding habits or contractual principles.”³⁶

 

Despite such differences in understanding, it is generally agreed that, for the world today, the worth of the Declaration lies mainly in the international moral bind-ing force imposed on the states, and in the attempts to encourage the state to take the initiative to restrain its own behavior regarding human rights through common standards. It has very limited legal binding force, if any. Otherwise, it would be pointless to formulate an international human rights convention with real legal binding force in addition to the Declaration. In the sense of international politics and international human rights, an exaggeration of the legal binding force of the Declaration is unfavorable to developing countries. After all, compared with international human rights conventions, the Declaration reflects more the ideas of the developed Western world on human rights, and adopts much fewer demands and claims regarding human rights by developing countries than the Conventions do. In this sense, people also prefer to accept the moral rather than the legal worth of the Declaration.

 

The differences in understanding of the effectiveness and binding force do not impact on the worth and significance of the Declaration. On the contrary, such differences and even disputes themselves fully reflect the broad dissemination and deep influence of the spirit of the Declaration. Professor Fei Xiaotong believed that “the Declaration as the first international document on human rights has laid the foundation for the practice in international human rights and has had a deep impact.”³⁷ Over the past 70 years, the United Nations has made outstanding achievements in human rights, and a law based on the common rights stated in the Declaration has been formed and this is one of the major achievements of the United Nations. Today, the awareness of human rights has long been deeply rooted in the minds of the people, and the international movement of human rights protection has reached a new high level. Only by continuing to uphold the spirit and purpose of the Declaration, comprehensively understanding the basic principles and directions of the Declaration in protecting human rights, abandoning prejudice and mutual accusation can we reach consensus under the guidance of the spirit of the Declaration and make real progress in protecting international human rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Translated by CHANG Guohua)