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Conjuring Up New Human Rights: A Proposal For Quality Control

Published online by Cambridge University Press:  27 February 2017

Philip Alston
Philip Alston*
Affiliation:
Harvard Law School, 1984-1985; on leave from the UN Centre for Human Rights
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Extract

Writing in 1968, the year of the 20th anniversary of the adoption of the Universal Declaration of Human Rights, Richard Bilder concluded that “in practice, a claim is an international human right if the United Nations General Assembly says it is.” Fifteen years later, as the 35th anniversary is celebrated, the authoritative role that Bilder correctly attributed to the General Assembly is in serious danger of being undermined.

Type
Research Article
Information
American Journal of International Law , Volume 78 , Issue 3 , July 1984 , pp. 607 - 621
Copyright
Copyright © American Society of International Law 1984

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References

1 GA Res. 217A, UN Doc. A/810, at 71 (1948).

2 Bilder, , Rethinking International Human Rights: Some Basic Questions, 1969 Wis. L. Rev. 171, 173 Google Scholar. In this respect, there may be an uncomfortably close parallel between the authority of the Assembly and that asserted in Lewis Carroll’s Alice in Wonderland by the Red Queen who majestically proclaimed that “words mean what I say they mean.”

3 International Covenant on Economic, Social and Cultural Rights, adopted Dec. 16, 1966, entered into force Jan. 3, 1976, Annex to GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); International Covenant on Civil and Political Rights, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, Annex to GA Res. 2200, id. at 52.

4 The Concise Oxford Dictionary 214 (1976 ed.).

5 See, e.g., Croce, , The Rights of Man and the Present Historical Situation, in UNESCO, Human Rights: Comments and Interpretations 93–95 (1949)Google Scholar.

6 Thus, in his closing address to the San Francisco Conference, President Truman said in reference to the Charter that “[u]nder this document we have good reason to expect the framing of an international bill of rights acceptable to all the nations involved.” 13 Dep’t St. Bull. 3, 5 (1945).

7 This issue is but one limited aspect of a much broader question on which Oscar Schachter has recently shed considerable light: whether General Assembly resolutions which purport to be declaratory of the law and “which have been used to legitimize action by international institutions as well as by states in their international—and sometimes even domestic—affairs” are legitimate, and to what extent they should be regarded as authoritative by the states to which they are addressed. Schachter, , The Crisis of Legitimation in the United Nations, 50 Nordisk Tidsskrift Int’l Ret: ACTA Scandinavica Juris Gentium 3, 4 (1981)Google Scholar.

8 Galtung & Wirak, On the Relationship between Human Rights and Human Needs, UNESCO Doc. SS-78/CONF.630/4, at 48 (1978); also Galtung, & Wirak, , Human Needs and Human Rights: A Theoretical Approach, 8 Bull. Peace proposals 251 (1977)CrossRefGoogle Scholar.

9 E.g., Mailman, Human Rights and Responsibilities: Their Relation to Human Needs, Human Values and the New International Economic Order, UNESCO Doc. SS-78/CONF.630/9 (1978).

10 See Marks, , Emerging Human Rights: A New Generation for the 1980’s?, 33 Rutgers L. Rev. 435 (1981)Google Scholar. For a critique of the concept, see Alston, , A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of International Human Rights Law?, 29 Neth. Int’l L. Rev. 307 (1982)CrossRefGoogle Scholar.

11 Text approved by OAU Ministerial Conference in January 1981 reprinted in 21 ILM 59 (1982).

12 Brussels, May 8, 1982.

13 Givanovitch, , he Suicide est-il Vun des droits de l’ hommet, 23 Rev. Int’le Droit Penal 407 (1952)Google Scholar.

14 UN Doc. E/1978/98. See also UN Office at Geneva Press Release ECOSOC/1977, July 18, 1978.

15 Report of The United Nations Conference on the Human Environment, Stockholm, 5-16 JUNE 1972, at 4 (UN Pub. Sales No. E.73.II.A.14).

16 GA Res. 2994 (XXVII) (1972).

17 E.g., Dupuy, P.-M., Le Droit à la santé et la protection de l’ environnement, in The Right to Health as a Human Right 340, 413 (Dupuy, R.-J. ed. 1979)Google Scholar.

18 GA Res. 34/46 (1979), 35/174 (1980), 36/133 (1981), and 37/199 and 37/200 (1982).

19 At that time, the Commission called for a study on “the international dimensions of the right to development as a human right,” but the starting point for that study was the presumption that the right already existed. Comm’n on Human Rights Res. 4 (XXXIII) (1977). The resulting study is contained in UN Doc. E/CN.4/1334 (1979).

20 Comm’n on Human Rights Res. 5 (XXXII) (1976), para. 1, “recalls that everyone has the right to live in conditions of international peace and security.”

21 Declaration on the Preparation of Societies for Life in Peace, GA Res. 33/73, pt. I, para. 1 (1978).

22 Comm’n on Human Rights Res. 1983/14; see also ECOSOC Res. 1983/31.

23 UN Doc. E/CN.4/1983/SR.17-20.

24 UN Doc. E/CN.4/1983/SR.31, para. 44 (Australia).

25 Id., para. 47.

26 See generally Schachter, supra note 7. It is reasonable to assume that the more frequently states are asked to endorse new rights, the more blasé they become about the significance of their affirmative votes. Such “endorsements” may easily come to be seen as little more than a gesture of goodwill to a political ally or a powerful bloc. In 1967 Schwebel criticized the fact that

resolutions may be voted for in the U.N. blithely, one might say, irresponsibly, because key decision-makers, normally not lawyers, having it fixed in their skulls that the General Assembly has no decision-making, no law-making authority, will vote for almost anything of transient political advantage, unaware that such votes may have a law-forming character.

The Effectiveness of International Decisions 494 (S. Schwebel ed. 1971). Today, it would be difficult to exempt lawyers from such criticism.

27 Abi-Saab, , The Legal Formulation of a Right to Development, in The Right to Development at the International Level 159, 161 (Dupuy, R.-J. ed. 1980)Google Scholar.

28 Many other criteria could of course be proposed. Thus, for example, Ramcharan has argued that

human rights are legal rights which possess one or more of certain qualitative characteristics, such as: appurtenance to the human person or group; universality; essentiality to human life, security, survival, dignity, liberty, equality; essentiality for international order; essentiality in the conscience of mankind; essentiality for the protection of vulnerable groups.

Ramcharan, , The Concept of Human Rights in Contemporary International Law, 1983 Can. Human Rights Y.B. 267, 280 Google Scholar.

29 The Grounds of an International Declaration of Human Rights, in UNESCO, Human Rights, supra note 5, App. II, at 263.

30 Cranston, M., What Are Human Rights? 36 (1973)Google Scholar.

31 See Annotations on the text of the draft International Covenants on Human Rights: Prepared by the Secretary-General, UN Doc. A/2929, ch. IV (1955).

32 Raphael, , The Liberal Western Tradition of Human Rights, 18 Int’l Soc. Sci. J. 22 (1966)Google Scholar.

33 Jacobs, , The Extension of the European Convention on Human Rights to Include Economic, Social and Cultural Rights, 3 Human Rights Rev. 166 (1978)Google Scholar.

34 Id. at 177.

35 See note 2 supra and accompanying text.

36 Schachter, supra note 7, at 18.

37 See generally Valticos, N., Droit International du Travail 215–19 (1983)Google Scholar.

38 In its work both on codification and on progressive development, the Commission adopts basically the following approach: a special rapporteur is appointed and an appropriate work plan is formulated for each topic; governments are invited to submit relevant laws, etc.; the special rapporteur submits a report on whose basis a provisional draft is approved by the Commission; the draft is submitted to the General Assembly and governments for comments; and a revised report is drawn up on whose basis a final report is submitted by the Commission to the Assembly. See United Nations, The Work of the International Law Commission 11-13 (3d ed. 1980).

39 At the preliminary (“nuclear”) session of the Commission on Human Rights in 1946, it was agreed that “the fullest possible documentation and information . . . was of the utmost importance” in drafting the Universal Declaration (UN Doc. E/38/Rev.1, at 3 (1946)). On the basis of that information, which included several comprehensive drafts, the Secretariat was asked to prepare an “Outline,” which then became the starting point for the drafting undertaken by the Commission and its working groups. The text was further refined by the General Assembly before its adoption in December 1948. See Humphrey, J., The Great Adventure: Human Rights and The United Nations (1983)Google Scholar.

40 See generally United Nations Action in the Field of Human Rights (UN Pub. Sales No. E.83.XIV.2).

41 ECOSOC Res. 1979/36.

42 For example, a “Draft Declaration on the Rights and Responsibilities of Youth,” submitted by the Governments of Costa Rica, Guinea, Indonesia, Lebanon, Romania and Rwanda, was presented to the General Assembly in 1982 (UN Doc. A/37/348, Appendix). The draft contains a very large number of “youth rights” that have no exact counterpart in the existing range of human rights. Thus, for example, the draft proclaims the right “to participate in the preparation and implementation of national development plans and in the execution of international cooperation programmes in the field of development” (pt. 11(b)); as well as the rights “to perform useful work” (pt. IV, para. 2); “to fight illiteracy” (pt. VI(a)); “to be associated in appropriate forms, with the efficient management of a healthy educational climate” (pt. VI(c)); and “to take a suitable part in efforts to modernize teaching” (pt. VI(d)). The draft also proclaims a range of responsibilities and duties such as “the social duty, in accordance with their individual abilities and training, to perform useful work and to choose their jobs and the type of work they are to perform, taking into account national objectives” (pt. IV, para. 2).

In addition to the problem of the compatibility of the draft with existing standards, there is a problem of coordination flowing from a request by the Commission on Human Rights to the Sub-Commission on Prevention of Discrimination and Protection of Minorities to draw up “draft principles on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms” (Comm’n on Human Rights Res. 1982/30 and 1983/31). Nevertheless, on the basis of existing practice, the draft declaration concerning youth is unlikely to be referred to the Commission on Human Rights for its comments or proposals.

43 See text accompanying note 28 supra.

44 It is considerably less complicated than a procedure proposed in 1973 by Sir Gerald Fitzmaurice by which legislative effect could be given to relevant General Assembly resolutions. His procedure would be embodied in a treaty and would provide for the examination of appropriate resolutions by a “Consortium of jurists” nominated by an authority independent of the General Assembly. The Consortium’s recommendation (“project”) would then be submitted to a standing “College of the United Nations” and, if adopted by a large majority of the states that had originally supported the resolution, would become binding on all of them (but not on states that had never participated in the scheme). See Fitzmaurice, , The Future of Public International Law and the International Legal System in the Circumstances of Today, in Institut de Droit International, Livre du Centenaire 1873-1973: Evolution et Perspectives du Droit International 196, 271–75 (1973)Google Scholar. See also comments on the proposal by, inter alia, Virally (id. at 376), Bindschedler (id. at 377), Seidl-Hohenveldern (id. at 381) and Waldock (id. at 384).