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December 8, 2018 - No. 43
Supplement
70th Anniversary
of Universal Declaration of Human Rights
The Inalienable
Rights Which Everyone
Is Inherently Entitled to as Human Beings
- Margaret
Villamizar -
• Differing
Perspectives on Human Rights During
Drafting of Universal
Declaration
• Perspective
of the Soviet Delegation on
Draft Covenant on Human Rights
• Canada's Less than Honourable Role
• Text of Universal Declaration of Human
Rights
70th Anniversary of Universal
Declaration
of Human Rights
The Inalienable Rights Which Everyone Is
Inherently Entitled
to as Human Beings
- Margaret Villamizar -
International Human Rights Day is observed every year on
December 10, the date on which the Universal Declaration of
Human Rights was adopted by the United Nations General
Assembly at the Palais de Chaillot in Paris, seventy years ago in
1948. According to its Preamble, the Declaration, which contains
thirty articles, was to constitute a "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."[1]
UN General Assembly session in Paris, December 10, 1948, adopts
Universal
Declaration
of Human Rights.
Paying tribute to the Declaration on its 70th
anniversary, the UN describes it as "a milestone document that
proclaimed the inalienable rights which everyone is inherently
entitled to as a human being -- regardless of race, colour,
religion, sex, language, political or other opinion, national or
social origin, property, birth or other status," and one that
"establishes the equal dignity and worth of every person." One of
the most translated documents in the world, it is available in
more than 500 languages.
The Declaration has the character of a non-binding
pronouncement. It is up to UN member states that accede to it to
bring their domestic law into compliance with its principles for
them to assume any legal weight.
When it was adopted, the Declaration was accompanied by
a
General Assembly resolution that called its adoption "a historic
act destined to consolidate world peace through the contribution
of the United Nations towards the liberation of individuals from
the unjustified oppression and constraint to which they are too
often subjected."
The resolution called for the Declaration's
dissemination
"among all peoples around the world" and for governments to use
every means within their power to solemnly publicize it and cause
it to be disseminated, displayed, read and expounded principally
in schools and other educational institutions without distinction
based on the political status of countries or territories; for
the Secretary General to have it widely disseminated and to that
end published and distributed not only in official languages but
using every means at his disposal in all languages possible; and
for specialized agencies and NGOs to do their utmost to bring
this declaration to the attention of their members.
Finally a resolution was also attached calling for the
Economic and Social Council of the General Assembly to ask the
Commission on Human Rights to continue to give priority in its
work for the preparation of a draft covenant on Human Rights and
measures for its implementation -- next steps in the creation of
the International Bill of Human Rights to be comprised of
the Declaration as well as a binding covenant and measures for
its implementation.
Work on Covenants to Accompany the Declaration
In the course of this work which ended up stretching
out over
no less than 18 years, with negotiations taking place when the
Cold War was in full swing, and during the upsurge of
anti-colonial wars and struggles for national liberation,
including in Korea, Cuba, Vietnam and many countries in Africa,
there remained sharp differences over most of the same issues on
which agreement could not be reached during the drafting of the
Declaration. This eventually led to the decision to draft two
separate covenants -- one dealing with civil and political
rights, the other with economic, social and cultural rights which
were to contain as many similar provisions as possible for
implementation, and be opened for signature simultaneously.
It was eventually agreed as well that each covenant
would
contain an article on the right of all peoples to
self-determination which was not included in the 1948 Declaration
despite the best efforts of Yugoslavia, which had proposed an
article to that effect, and other countries which fought for it.
The proposed article read:
The States Parties to the
present Covenant, including those
having responsibility for the administration of
Non-Self-Governing and Trust Territories, shall promote the
realization of the right of self-determination, and shall respect
that right, in conformity with the provisions of the Charter of
the United Nations.
Drafts of the International Covenant on Economic,
Social
and Cultural Rights and the International
Covenant on Civil and Political Rights were presented
to the General Assembly for discussion in 1954 but were only
adopted twelve years later in 1966. Article 1 of each Covenant
states that the right to self-determination is universal and
calls upon States to promote the realization of that right and to
respect it. The article provides that all peoples have the right
of self-determination and adds that "By virtue of that right they
freely determine their political status and freely pursue their
economic, social and cultural development." It took almost
another ten years for enough UN member states (35) to sign on to
them for the covenants to finally enter into force.[2]
As of September 2018, 169 countries had acceded to the
International Covenant on Economic,
Social
and Cultural Rights. A further four countries, including the United
States have
signed, but not ratified it.
Together, the Universal Declaration of Human Rights and
the two Covenants are said to be
the
foundational texts in the contemporary international system of
human rights with the rights contained in the Declaration and the
two Covenants further elaborated in such legal documents as the
International Convention against Torture; the International
Convention on the Elimination of All Forms of Racial
Discrimination, which declares dissemination of ideas based on
racial superiority or hatred as being punishable by law; the
Convention on the Elimination of All Forms of Discrimination
Against Women, covering measures to be taken for eliminating
discrimination against women in political and public life,
education, employment, health, marriage and family; and the
Convention on the Rights of the Child, which lays down guarantees
in terms of the child's human rights.
Notes
1. Today, 70 years after the adoption of the original UN
Universal Declaration of Human Rights, there are seven major UN human
rights treaties:
1. International Convention on
the Elimination of All Forms of Racial Discrimination
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural Rights
4. Convention on the Elimination of All Forms of Discrimination against
Women
5. Convention against Torture and Other Cruel or Degrading Treatment or
Punishment
6. Convention on the Rights of the Child
7. International Convention on Protection of the Rights of All Migrant
Workers and Members of Their Families
2. To see the International Covenant on Economic,
Social and
Cultural Rights, click
here. To see the International Covenant on Civil and
Political Rights, click
here.
Differing Perspectives on Human Rights During Drafting
of
Universal Declaration
The 1945 San Francisco Conference led to the founding
of
the United Nations and adoption of its Charter from the ashes of
World War II. The hope was to "save succeeding
generations from the scourge of war, ... 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, and establish conditions under which justice and
respect for the obligations arising from treaties and other
sources of international law can be maintained, and promote
social progress and better standards of life in larger freedom."
There a "Declaration on the Essential Rights of Man" was
proposed.
The Preparatory Commission of the UN, which met
immediately
after the San Francisco Conference, recommended that the Economic
and Social Council establish a commission for the promotion of
human rights. The Commission on Human Rights, convened for the
first time on January 27, 1947 at Lake Success, New York was
comprised of representatives of eighteen UN member states:
Australia, Belgium, Byelorussia, Chile, China, Egypt, France,
India, Iran, Lebanon, Panama, Philippines, Ukraine, USSR, United
Kingdom, United States, Uruguay and Yugoslavia. Charles Malik,
the delegate from Lebanon, served as its rapporteur and John
Humphrey, a Canadian professor of international law and director
of the UN Secretariat's Division for Human Rights, served as
secretary. Eleanor Roosevelt, widow of U.S. wartime president
Franklin Delano Roosevelt, and a delegate to the UN for her
country, was elected chair of the Commission.
Three separate groups were formed to work
simultaneously on
drafting a declaration, a covenant (a document that, unlike a
declaration, would become legally binding on the nations that
ratified it), and methods of implementation.
A committee composed of eight persons, from Australia,
Chile,
China, France, Lebanon, the Union of Soviet Socialist Republics,
the United Kingdom and the United States, was charged with
drafting the Declaration. It met over the course of two years.
When the committee completed its work in June 1948, the text it
settled on was sent to the Social, Cultural, and Humanitarian
Committee of the General Assembly, commonly referred to as the
Third Committee, for its consideration. At its meetings between
September 28 and December 9, 1948, in which all UN member states
were entitled to participate, the Third Committee subjected the
Declaration to intense scrutiny, debating every article and
voting well over a thousand times on different amendments and
proposals. As had already occurred in the drafting committee,
sharp differences in the perspective on human rights and how they
could be realized surfaced, mainly between republics of the
Soviet Union and the newly formed people's democracies on the one
hand, and the U.S. and old colonial powers of Europe and those
under their influence, on the other.
 Those who considered
themselves part of the "western" bloc
tended to give short shrift to economic and social rights, and
collective rights generally, saying there was no obligation for
states to guarantee these rights. Instead they concentrated on
individual rights and freedoms, conceived often as protection
from the state. The socialist countries saw the state as being
duty-bound to create the conditions for the full enjoyment of
social, economic and cultural as well as civil and political
rights. Eleanor Roosevelt commented about one of the many
amendments proposed by the Soviet delegation to this effect that
she could not support it since to do so would mean the entire
character of the Declaration would be changed. It was clear that
the U.S. had put itself in the position of dictating that the
document must be aspirational only -- and as revealed in
documents published later, a propaganda tool for use against the
Soviet Union, which it sought to portray as a violator of human
rights. This all took place as NATO was in the process of being
founded.
Issues of Contention
Reports in the 1948-49 UN Yearbook
reveal various issues of contention in the plenary, and also in the
committee, between those countries that sought to concretely protect
and enshrine human rights, and those who merely sought to have an
aspirational document.[1]
The representative of Poland "thought that the
application
of those articles dealing with the right of asylum, the freedom
of opinion and expression, and the granting of freedom of
assembly and association should be limited so that fascists would
not be able to profit by those provisions in order to overthrow
democracy. He submitted that the adoption of the Declaration
should not entail any interference in the domestic jurisdiction
of sovereign States. He also felt that there were several
omissions in the draft, such as the omission of the right of
nations to use their own language and to develop their own
culture."
"The representative of the USSR considered that the
draft
Declaration did not satisfy the three conditions which were ...
indispensable to the completion of the Declaration, namely: a
guarantee of basic freedoms for all, with due regard to the
national sovereignty of States; a guarantee that human rights
could be exercised with due regard to the particular economic,
social and national circumstances prevailing in each country; and
a definition of the duties of citizens to their country, their
people and their State. He regretted that fascism was nowhere
condemned in the draft. He declared that the rights specified in
the draft were illusory as they lacked effective guarantees."
As well, the representative of the USSR "considered
that the
article
dealing with the freedom to disseminate ideas did not solve the
problem of freedom of expression, as the diffusion of dangerous
ideas, such as warmongering and fascist ideas, should be
prevented. That same article, he submitted, made no provision for
the free dissemination of just and lofty ideas. If freedom of
expression was to be effective, the workers, he argued, must have
the means of voicing their opinions, and for that they must have
at their disposal printing presses and newspapers. The right to
street demonstrations, he said, should be guaranteed." That
argument was rejected by Eleanor Roosevelt who said opinions of
newspaper owners were confined to the editorial pages, and could
be easily discerned and that furthermore, in the U.S. it was the
people who controlled the government and the press, so there was
no problem!
The Soviet representative also "declared that it was
necessary to make certain that scientific research would not be
used for war purposes which would obviously hinder progress. He
drew the Assembly's attention to a defect in the Declaration
which he considered to be fundamental: the absence of provisions
guaranteeing the rights of national minorities [including the
preservation of native languages and cultures]. He also regretted
the failure of the Declaration to mention the sovereign rights of
States.
"He submitted a draft resolution (A/785/Rev.2)
recommending
that the General Assembly postpone adoption of the Declaration
until its fourth regular session. The representatives of the
Byelorussian SSR, Czechoslovakia, Poland, the Ukrainian SSR and
Yugoslavia supported the Soviet draft resolution.
"The representative of the Ukrainian SSR stated that
the
Declaration contained a series of rights which could not be
exercised, in view of the existing conditions and the economic
structure of a great number of countries. Several elementary
democratic rights which could be realized even in a capitalist
society had been deliberately omitted. Before the right to work,
to rest and to education could be put into effect, he submitted,
it was necessary to alter drastically the economic system of
private enterprise. He said that there could be true equality
among men only under an economic system which guaranteed to
everyone equal conditions and opportunities for the development
of his own potentialities, and that was not the equality
mentioned in the Declaration. In making his case he spoke to
"the absurd theory current among colonial powers that there were
superior and inferior races," saying it was reminiscent of the
defeated nazi theory and must he eradicated, giving the example
of South Africa, but saying it was not alone in this regard.
"The Declaration, maintained the representative of
Czechoslovakia, was not imbued with revolutionary spirit; it was
neither bold nor modern. The abolition of the death sentence in
peace time was not agreed to; nor were 'fascism' and 'aggression'
denounced publicly and formally. The Declaration, he observed,
took no account of the practical aspects of the question of the
right to work; it simply expressed lofty ideals, making no
provision for their implementation in the difficult daily life of
the workers. He stressed the fact that there was no point in
proclaiming the right to leisure, for example, if some men had no
means of exercising that right.
"According to the representative of the Byelorussian
SSR, the
Declaration was merely a proclamation of human rights, and it
contained no guarantee of the rights it proclaimed. The right to
national culture and democracy's struggle against fascism and
nazism were not mentioned."
This stand of the USSR and other socialist countries on
the
need to prevent the propagation of fascist and warmongering ideas
was opposed by the U.S., Britain and Canada who said this was not
possible because there was no common understanding about what
terms like "fascism" and "democratic system" entailed.
"The Declaration stated only traditional freedoms and
rights
of the old liberal school, the representative of Poland asserted.
It failed to mention that the counterpart of those rights was the
duty of the individual towards his neighbours, his family, his
group and his nation. It completely ignored the right of every
person to speak his own language and to have the protection of
his national culture ensured. He stated that the Declaration, in
reality, represented a step backward if compared with the
Declaration of the Rights of Man and the Citizen, which had been
produced during the French Revolution; if compared with the
Communist Manifesto, which had declared human rights as binding
and necessary a hundred years ago; and if compared with the
principles which had inspired the October Revolution.
"The representative of Yugoslavia felt that the
principles of
human rights set out in the Declaration lagged behind the social
progress achieved in modern times; and that they did not grant
full juridical and social protection to man. He considered that
the radical change in social conditions emphasized the necessity
of widening the traditional categories of human rights -- which
generally included political and civil rights -- and of
establishing a system of social rights, including the collective
ones for certain communities. He regarded the Declaration as an
instrument of international codification rather than as an
instrument which opened a new and bright future for the
individual in the vast field of social rights."
The representative of the USSR "stated that the
Declaration
was directed against national sovereignty and was therefore
entirely inconsistent with the principles of the United Nations.
The independence and well-being of a nation, he argued, depended
on the principle of national sovereignty, and this principle was
the sole protector of the smaller countries against the
expansionist dreams of more powerful States. He submitted a
number of amendments (A/784) to the draft Declaration proposed by
the Third Committee. These amendments, similar to those presented
in the Third Committee -- and which provided for, inter alia,
(1) the extension to the population of
Non-Self-Governing Territories of the provisions regarding the
human and civic rights and fundamental freedoms set out in the
Declaration; (2) a declaration that it was the inalienable right
of every person freely to express and disseminate democratic
views, and to combat fascism; (3) a declaration that every
citizen of any State must have the right, among other rights, of
access to any State or public office in his country; and (4) the
insertion of a new article declaring that the rights and freedoms
enumerated in the draft Declaration should be guaranteed by
national laws -- were all rejected by individual roll-call
votes."
At the time, there were 58 countries in the United
Nations. Of these only six were people's democracies in which the
people were striving to affirm their human rights in very
concrete ways, for national sovereignty against domination by
foreign powers, against the class divisions of the old society,
and who had borne the brunt of defeating Nazi-fascism at
tremendous cost. However, such amendments as those from the USSR
were anathema to the Anglo-American imperialists and the
countries in their sphere of influence who outnumbered the
people's democracies, and who sought to dominate other countries
via exploitative and colonial relations.
The U.S. took up sophistic arguments to oppose the
concrete
issues raised in the USSR's amendments, making smug and
self-serving justifications about the meaning of democracy, and
that human rights exist only on an individual basis, not a
collective one. This condescension toward the USSR comes across
in the report in the UN Yearbook: "While paying
a tribute to the USSR delegation for the tenacity with which it
had defended its convictions, the representative of the United
States remarked that people sometimes had to co-operate loyally
with the majority even when they disagreed with its views."
In
some cases, the concerns raised by the USSR in its amendments were
dismissed on a purely bureaucratic basis: "The first Soviet
amendment, the United States representative said, dealt with the
question of minorities, and the Third Committee had already
decided that that question required further study, and had
recommended that it be referred, for that purpose, to the
Economic and Social Council and the Commission on Human Rights.
According to the representative of the United States, it was
clear from the second USSR amendment that the aim was to
guarantee the rights of certain groups, and not the rights of
individuals, with which alone the Declaration was concerned."
As
concerns the issue of the need to bar the promulgation of fascist
and Nazi propaganda, then as today, the U.S. equivocated in the
name of high ideals, covering up the Anglo-American hope during
the war that the Nazis would defeat the Soviets, and their
protection and recruitment of Nazis after the war. The U.S.
representative remarked, "The effect of the third USSR
amendment would be to restrict freedom of opinion and expression
[and would] set up standards which would allow any State to deny
freedom of opinion and expression without violating that
article."
With respect to the fourth USSR amendment that would
have
obliged signatories to proclaim the obligations of the State with
regard to the affirmation of human rights, the U.S.
representative seemed to suggest an ulterior move, complaining
that "the USSR delegation had tried to introduce [this concept]
into practically every article of the Declaration. She submitted
that if that conception were adopted, the entire character of the
Declaration would be changed."
Similarly, the representative of India turned the
issue
of opposing fascist and Nazi propaganda into one of freedom of
speech in an abstract, out of context manner that negated the
serious concerns raised about such reactionary propaganda
and its role in inciting aggression and war that led to millions
of deaths. She "maintained that the right to hold different
opinions was a sacred right and the prerogative of every truly
democratic people. She declared that India, like other countries,
would never agree to restricting political rights in order to
realize social aims, however noble those aims might be." Needless to
say, the partition of India had been imposed only the year before in
August 1947, in which the British colonial power had sown divisions in
society on the most backward and communal basis, with great tragedies
for the people.
For its part, Bolivia, an important supplier of tin to
the
U.S. during World War II, took up the reactionary Cold War line
of the containment of communism, by presenting a caricature of
the discussion on the Declaration as "on the one hand, the thesis
upheld by the USSR, characterized by the 'desire to subordinate
the individual to the State,' and, on the other hand, the thesis
supported by all the democratic countries, which was designed 'to
make the individual capable of organizing a State which, in turn,
would respect the rights of the individual.' Referring to the
objections formulated by the representative of the Ukrainian SSR,
the representative of Bolivia stated that the democratic peoples
abhored the thesis that the happiness of mankind should be
subordinated to the interests of the all-powerful communist
State." Such a misrepresentation was of course a denial of the
democratic empowerment in the people's democracies and the
exploitive class society and the impoverishment of the peasantry
and workers in other countries the world over, including the
exploitation of tin miners and others in Bolivia.
Differences even arose in discussion about the order in
which
various rights and freedoms appeared in the final draft. The
Soviet delegate took issue with too little emphasis being placed
on the rights of man as a toiler and his place in society, shown
by the fact that man's role as the creator of wealth had been
placed last in the text. The Cuban delegate argued that in a
20th century document, social rights, which he called the
achievement of the 20th century, should come before "legal
rights" that were acquired long ago and repeated in a number of
similar documents. Roosevelt pooh-poohed these arguments,
insisting that no articles deserved precedence over any others as
all were of equal importance.
Finally on December 7, 1948, the Third Committee voted
29 to 0
with 7 abstentions to approve the final draft of the Universal
Declaration of Human
Rights and send it to the General Assembly for adoption. The
following countries abstained: the USSR, Soviet Socialist
Republic of Ukraine, Soviet Socialist Republic of Byelorussia,
Poland, Czechoslovakia, Yugoslavia and Canada.[2]
Three days later, the text was brought to a plenary
session
of the General Assembly where it was adopted, with 48 countries
-- this time including Canada -- voting in favour, none against
and eight abstaining (the USSR, Byelorussia, Ukraine, Poland,
Czechoslovakia, Yugoslavia, Saudi Arabia and South Africa). Two
countries did not take part in the vote.
In presenting the Declaration to the members of the
General
Assembly, Eleanor Roosevelt announced, "We stand today at the
threshold of a great event both in the life of the United Nations
and in the life of mankind. This Declaration may well become the
international Magna Carta for all men everywhere."
Notes
1. UN Yearbook 1948-49.
2. Voting in favour were Afghanistan, Argentina,
Australia, Belgium, Bolivia, Brazil, Chile, China, Cuba, Denmark,
Dominican
Republic, France, Greece, Haiti, Honduras, India, Iran, Lebanon,
Mexico, Netherlands, New Zealand, Peru, the
Philippines, Sweden, Syria, Turkey, United Kingdom, United States
of America and Venezuela.
Perspective of the Soviet Delegation on Draft
Covenant on
Human Rights
Discussion on human rights at the United Nations
continued
after adoption of the Universal Declaration on Human Rights
in 1948, specifically on the Covenant on Human Rights.
In the official records of the United Nations General
Assembly of December 4, 1950, the USSR delegation pointed out
that "the chief fault of the UN Declaration on Human Rights was
its formal, legalistic character, since it confined itself to
proclaiming a few human rights in an extremely general and
incomplete form, without stating the ways and means of
implementing these rights."[1]
The delegation pointed out that the draft Covenant "not only contains
all the faults of the Declaration,
but it also omits any mention of certain rights which are vitally
important to millions of people, such as the right to work, the
right to social security, the right to leisure, the right to
education and many other social, economic and cultural rights
which are contained in the Universal Declaration of Human Rights,
although in a proclamatory, unsatisfactory and incomplete form."
That the UN, two years after the signing of the Universal Declaration
of Human Rights," is even
further from solving the problem of protecting and ensuring
respect for human rights."
The USSR delegation proposed amendments and corrections
to
the draft Covenant "to ensure that all citizens, without
distinction, have an opportunity to take part in the government
of the State and therefore to abolish all restrictions, based on
property, education, or anything else, on the right to take part
in elections of candidates to representative organs, and to
afford all citizens the opportunity of occupying any State or
public office."
It also did so "to ensure the right of every people and
every nation to national self-determination and to the
development of their national culture," as well as "to provide
that the State should be obliged to guarantee to everyone the
right to work and to choose his profession, so that conditions
may be created in which the threat of death from hunger or
exhaustion will be ruled out;
"Fourthly, to ensure access to
education without any discrimination whatsoever. And to ensure
this by the provision of free elementary education and the
organization of a system of scholarships and schools;
"Fifthly, to
ensure the right to rest and leisure by providing by law for a
reasonable limitation of working hours and for periodic holidays
with pay;
"Sixthly, to introduce social security and social
insurance for workers and employees at the expense of the State
or at the expense of the employers, in accordance with the laws
of each country;
"Seventhly, to take all the necessary measures to
ensure decent living quarters to every person;
"Eighthly, to
guarantee the strict observance of trade union rights and to
create conditions in which the unhampered activities of trade
union organizations can be ensured;
"Ninthly, to ensure that the
rights proclaimed in the covenant are not used for purposes
hostile to humanity and, in particular, for purposes of war
propaganda, for fomenting hostility among nations, for inciting
to racial discrimination, or for spreading slanderous rumours.
"Finally, to provide that the activities of any fascist
or
anti-democratic organization must be prohibited by law, subject
to penalty."
The delegation of the USSR was also "unable to agree to
the
proposal ... for the establishment of various international
organs, such as the committee on human rights; such a measure
would constitute interference in the internal affairs of States
and a violation of their sovereignty, since the implementation of
the provisions of the Covenant in every State falls entirely
within the domestic jurisdiction of the States signatories to the
covenant and must allow for the specific economic, national and
other characteristics of each country."
The USSR delegation believed that "it cannot be
expected that
the covenant should reproduce the principles and provisions of
the Constitutions of socialist States, such as the Soviet Union
and the peoples' democracies, where the above-mentioned human
rights are confirmed by law and are guaranteed in practice on the
basis of the socialist system of social relations. It must be
borne in mind that such legislation is possible in the USSR and
in the peoples' democracies because all exploitation of man by
man has been eliminated in these countries and a firm foundation
has thus been established for the universal respect for and
implementation of human rights."
It further argued:
In defining the future work
of
the
Commission on Human Rights, the General Assembly cannot, of
course, ignore the particular economic and social circumstances
of the various States Members of the Organization, circumstances
which prevent many of them, at the present time, from settling in
a consistent and satisfactory manner the problem of establishing
living conditions which are really worthy of human beings. The
Soviet Union delegation considers, however, that even so, the
General Assembly can recommend to the Commission on Human Rights
that it should include in the Covenant the aforementioned minimum
rights, the implementation of which affects millions of people.
This is particularly essential because it is impossible to state
seriously that the draft Covenant guarantees real, and not
imaginary, human rights.
Note
1. General
Assembly,
5th
session:
317th
plenary
meeting, Monday, 4 December
1950.
Canada's Less than Honourable Role
Canada's abstention in the vote at the Third Committee
on
the final draft of the Universal Declaration of Human Rights on
December 7, 1948 raised a lot of eyebrows at the time. Writing
about this in the McGill Law Journal, William A.
Schabas[1] said:
In a speech to the General
Assembly, External Affairs
Minister Lester B. Pearson explained the decision as a federal
concern about infringing provincial jurisdiction. Even at the
time, many, including Canadian international law professor John
Humphrey, who served as director of the UN Secretariat's Division for
Human Rights, and secretary to the Preparatory Commission of the UN,
found the story hard to
accept. Schabas' research of archival documents now available
shows that Canadian hesitation was principally due to discomfort
in the Federal Cabinet with substantive norms enshrined in the
Declaration, including freedom of religion and of association.
The evidence suggests that provincial jurisdiction was little
more than a pretext for federal politicians who wanted to avoid
international human rights commitments. The Canadian Government
misled both domestic and international public opinion by
concealing its substantive opposition to the Declaration behind
procedural arguments. [...]
Despite the enthusiastic
involvement of Humphrey, the
Canadian government's attitude toward the Declaration was
skeptical; at its extreme, Canada's attitude bordered on
hostility. During the vote on the draft Declaration in the Third
Committee of the General Assembly, the Canadian delegation, under
the personal direction and instruction of Secretary of State for
External Affairs Lester B. Pearson, broke ranks with the vast
majority of United Nations' members and declined to support the
Declaration.
In May 1947 as work of the drafting committee
proceeded,
Canada established a Special Joint Committee of the Senate and
the House of Commons on Human Rights and Fundamental Freedoms
with a mandate to consider how obligations arising from a UN
Declaration on Human Rights could best be implemented by Canada.
Legal counsel for the Department of External Affairs and Humphrey
emphasized to apparently skeptical parliamentarians on the Committee
that the Declaration would not be a human rights treaty
which would bind states that acceded to it but rather a
resolution of the General Assembly with no binding effect on
international law.
Minutes of the Joint Committee's meetings in 1948,
reproduced
or
referred to by Schabas, reveal some of the concerns Canada had
with the Declaration as the vote on a final draft
approached. One was that it did not mention, but should, that all
rights came from God; another was that the non-discrimination
clause appeared to conflict with Canada's internment of people of
Japanese origin, to which a BC MP responded by saying that "there
was no human rights violation in the treatment of the Japanese
[since] they had been interned not because of 'race' but because
of 'loyalty or subversive attitudes.'" Another concern was that
the democratic rights provision in the Declaration would entitle
Indigenous peoples to vote at a time when Status Indians were
prohibited from voting in Canada. Senator Gouin said that was
not a problem since "they have the right to choose to be wards of
the state and not vote, or to vote and have freedom."
In the end, the parliamentary committee indicated that
it
generally viewed the Declaration favourably; however in its
report it did ask that the Canadian delegation take into account
that it was generally opposed to "unnecessary" articles and
wanted it on the record that the name of God should be embodied
in the first article.
Canada Abstains in Vote to Approve Final Draft of
Declaration
When discussion in the Third Committee moved to
articles in
the Declaration dealing with economic and social rights, Canada
declared its intention to abstain from voting, claiming this was
not out of opposition to the principles set forth in those
articles but because the federal government "will not invade the
field of provincial jurisdiction, particularly in regard to
education."
Canada also argued in the Third Committee against the
inclusion of
a minority rights clause, claiming that in Canada there were no
such issues that needed addressing. Its delegate said, "It has
been stated that the problem of minorities may arise as the
result of the arrival in a country of new settlers from a foreign
country, or it may arise from the unfavourable circumstances in
which certain indigenous national groups may find themselves. I
can say quite confidently that for Canada the problem of
minorities, regarded in either of these two ways, does not
exist...in the sense that there is no discontent."
As the time approached for a last vote on the final
draft,
different scenarios were discussed between officials at External
Affairs and the delegation in Paris for how Canada could work to
stall the vote to buy time to tailor the document more to the
government's liking. The problem however was how, in so doing, not
to fall afoul of the U.S and Britain, who were both keen to pass
the Declaration without further delay, and how to avoid making
Canada the subject of criticism for appearing in principle to
oppose the adoption of a human rights declaration.
Matters were brought to a head, however, with an
unambiguous
message sent by acting Prime Minister Louis St. Laurent, who said
he was particularly concerned about the potential for articles
dealing with freedom of speech, freedom of association, freedom
of assembly, and the right to employment in the public service to
be used "as an undertaking not to discriminate against communists
because of their political views and of article 27 as obliging a
state to provide higher education to everyone at the cost of the
state if he cannot pay for it." The delegation replied, "In
accordance with your instructions the Canadian delegation will
not sponsor nor support the early passage of the Declaration on
Human Rights in its present form."
The back and forth continued, however, over what Canada
should
do as Lester Pearson, who now was Minister of External Affairs,
became increasingly concerned that abstaining in the final vote
and standing against the vast majority, including the U.S. and
Britain, would not be good for Canada's image. Domestic political
calculations appear to have led Pearson in the end to advise
abstaining in the Third Committee vote and voting in favour of
the Declaration in the General Assembly.
So on December 7 when it came time to vote on the final
draft
in the Third Committee Canada joined the USSR, Ukraine,
Byelorussia, Poland, Czechoslovakia and Yugoslavia in abstaining.
Schabas writes that after the vote Pearson, who was by now in
Paris to attend the upcoming meeting of the General Assembly,
informed Ottawa that Canada's delegation was urgently approached
by the United Kingdom and the United States, who explained they
were prepared to approve the Declaration in the form it was in,
despite its imperfections, because of its value as a propaganda
tool for use against countries in the Soviet bloc where, they
claimed, people's human rights were being denied. They regarded
Canada's abstention "as a serious weakening of the propaganda
position which they were hoping to achieve" Pearson said. It also
was not lost on him how it looked for Canada to have been the
odd-man-out by abstaining, along with the members of the "Soviet
bloc" -- if for very different reasons.
Three days later, in keeping with the plan, Canada
switched and voted in favour of the Declaration at the General
Assembly. Pearson's December 10 speech to the Assembly addressed
a number of Canadian reservations concerning some "difficulties
and ambiguities" in the Declaration, but clearly implied that
there were no serious problems with the substance of the
instrument. Not convinced, Schabas says:
Yet the documents in the
National Archives reveal a
different
story. Prime Minister St. Laurent himself had expressed major
concerns about freedom of speech, freedom of assembly, freedom of
association, and the right to employment in the public service,
because of their potential invocation by Communists. Unnamed
members of the Cabinet also complained about protecting freedom
of religion as the provision might provide support to Jehovah's
Witnesses. Even the opposition to recognition of economic and
social rights, presented as nothing more than a
federal-provincial dispute, clearly cut deeper. The Parliamentary
Committee had already indicated that it felt such provisions,
which imposed duties on states rather than granting rights to
individuals, had no place in the Declaration... [...]
The Canadian Government, and
the Department of Foreign
Affairs in particular, misled both domestic and international
public opinion by concealing its substantive opposition to the
Declaration behind procedural arguments. Aside from the outright
hostility to specific provisions of the Declaration, there was
also a strong dose of indifference.... [...]
There was simply no "human
rights culture" within the
Department of External Affairs. It is impossible to identify a
single official among the many distinguished Canadian
personalities who then worked for the Department -- including
Pearson, [Escott] Reid and [George] Ignatieff -- who viewed the
Declaration as
being of real significance. None of them even mentioned the
subject in their memoirs. They seem to have been preoccupied by
other issues of the day, such as the Berlin airlift and the
creation of NATO.
Note
1. Schabas, William A. (1998) Canada
and the adoption of the Universal Declaration of Human Rights. McGill
Law
Journal, 43 (2). pp. 403-441.
Text of Universal Declaration of Human Rights
Preamble
Whereas 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,
Whereas 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,
Whereas 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,
Whereas it is essential to promote the development of
friendly relations between nations,
Whereas 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,
Whereas 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,
Whereas a common understanding of these rights and
freedoms is of the greatest importance for the full realization of this
pledge,
Now, therefore,
The General Assembly,
Proclaims this Universal Declaration of Human Rights as
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.
Article 1
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.
Article 2
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.
Furthermore, no distinction shall be made on the basis
of the political, jurisdictional or international status of the country
or territory to which a person belongs, whether it be independent,
trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of
person.
Article 4
No one shall be held in slavery or servitude; slavery
and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a
person before the law.
Article 7
All are equal before the law and are entitled without
any discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this
Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights
granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention
or exile.
Article 10
Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge
against him.
Article 11
- Everyone charged with a penal offence has the right
to be presumed innocent until proved guilty according to law in a
public trial at which he has had all the guarantees necessary for his
defence.
- No one shall be held guilty of any penal offence on
account of any act or omission which did not constitute a penal
offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence, nor to attacks upon his
honour and reputation. Everyone has the right to the protection of the
law against such interference or attacks.
Article 13
- Everyone has the right to freedom of movement and
residence within the borders of each State.
- Everyone has the right to leave any country,
including his own, and to return to his country.
Article 14
- Everyone has the right to seek and to enjoy in other
countries asylum from persecution.
- This right may not be invoked in the case of
prosecutions genuinely arising from non-political crimes or from acts
contrary to the purposes and principles of the United Nations.
Article 15
- Everyone has the right to a nationality.
- No one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.
Article 16
- Men and women of full age, without any limitation due
to race, nationality or religion, have the right to marry and to found
a family. They are entitled to equal rights as to marriage, during
marriage and at its dissolution.
- Marriage shall be entered into only with the free and
full consent of the intending spouses.
- The family is the natural and fundamental group unit
of society and is entitled to protection by society and the State.
Article 17
- Everyone has the right to own property alone as well
as in association with others.
- No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience
and religion; this right includes freedom to change his religion or
belief, and freedom, either alone or in community with others and in
public or private, to manifest his religion or belief in teaching,
practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.
Article 20
- Everyone has the right to freedom of peaceful
assembly and association.
- No one may be compelled to belong to an association.
Article 21
- Everyone has the right to take part in the government
of his country, directly or through freely chosen representatives.
- Everyone has the right to equal access to public
service in his country.
- The will of the people shall be the basis of the
authority of government; this will shall be expressed in periodic and
genuine elections which shall be by universal and equal suffrage and
shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to
social security and is entitled to realization, through national effort
and international co-operation and in accordance with the organization
and resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development of his
personality.
Article 23
- Everyone has the right to work, to free choice of
employment, to just and favourable conditions of work and to protection
against unemployment.
- Everyone, without any discrimination, has the right
to equal pay for equal work.
- Everyone who works has the right to just and
favourable remuneration ensuring for himself and his family an
existence worthy of human dignity, and supplemented, if necessary, by
other means of social protection.
- Everyone has the right to form and to join trade
unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including
reasonable limitation of working hours and periodic holidays with pay.
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.
- Motherhood and childhood are entitled to special care
and assistance. All children, whether born in or out of wedlock, shall
enjoy the same social protection.
Article 26
- Everyone has the right to education. Education shall
be free, at least in the elementary and fundamental stages. Elementary
education shall be compulsory. Technical and professional education
shall be made generally available and higher education shall be equally
accessible to all on the basis of merit.
- Education shall be directed to the full development
of the human personality and to the strengthening of respect for human
rights and fundamental freedoms. It shall promote understanding,
tolerance and friendship among all nations, racial or religious groups,
and shall further the activities of the United Nations for the
maintenance of peace.
- Parents have a prior right to choose the kind of
education that shall be given to their children.
Article 27
- Everyone has 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.
- Everyone has the right to the protection of the moral
and material interests resulting from any scientific, literary or
artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order
in which the rights and freedoms set forth in this Declaration can be
fully realized.
Article 29
- Everyone has duties to the community in which alone
the free and full development of his personality is possible.
- In the exercise of his 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.
- These rights and freedoms may in no case be exercised
contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as
implying for any State, group or person any right to engage in any
activity or to perform any act aimed at the destruction of any of the
rights and freedoms set forth herein.
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