Thursday, March 4, 2021

The UN Charter

(Source: Human Rights Law Teaching Material

Demelash Shiferaw & Yonas Tesfa)

Adopted on 26 June 1945, the United Nations Charter was designed to establish the foundations of a new peaceful world order. Drawing lessons from the appalling atrocities of the Second World War, the Charter’s primary aim was thus to save succeeding generation from the scourge of war (preamble, paragraph 2) and to ensure the maintenance of international peace and security. Within such broad and ambitious objectives, a respect for human rights and fundamental freedoms found its significant though ambivalent reflection. The Charter has demonstrated not only a move towards the lasting and stable internationalization of human rights but it has also implied their contribution to ensuring the establishment of the peaceful, post-war world order.


Under the Dumbarton Oaks proposals for the United Nations of 1944, the four powers intended to have rather a general reference to human rights. Finally, during the San Francisco Conference, more extensive references to human rights were included in the Charter, albeit this compromise was achieved at the expense of less imperative formulations. Finally, the Charter refers to human rights in altogether seven provisions of diversified content and character (Paragraph 3 of the preamble, Article 1(3), Articles 55 and 56, Article 76(C), Article 13(1)(b), Article 62(2) and (3), and Article 68).


As reflected in the preamble to the Charter, the United Nations were guided, among others, by the motive 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 (preambular paragraph 3). Having declared their lofty motives, the United Nations granted respect for human rights the status of one of the fundamental purposes of the organization. The Charter sets out that the purpose of the United Nations will be, inter alia, to achieve international cooperation also in promoting and encouraging respect for human rights and for fundamental freedoms for all with out distinction as to race, sex, language, or religion (Article 1(3)). 


More specific rules of conduct aimed at the accomplishment of these tasks are contained in three sets of provisions of the Charter: on international economic and social cooperation (Articles 55 and 56), on the international trusteeship system (Article 76(c) and on the functions and powers of the UN organs in this sphere (Article 13(1)(b), Article 62(2) and (3), and Article 68).


Of particular consequence is the first set of human rights provisions which relates to international economic and social cooperation laid down in Chapter IX of the Charter. Its Article 55 sets forth that 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 selfdetermination of peoples, the United Nations shall promote, inter alia, universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (Article 55(c)). As a direct extension these provisions, Article 56 provides that all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the proposes set fourth in Article 55.


As far as the second set of provisions is concerned, it was provided that one of the basic objectives of the international trusteeship system (Chapter of the Charter) will also 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 people of the world (Article 76 (c))


With in the third set of provisions, the Charter translated its objectives and role in the field of human rights into the functions and powers of number of UN organs. Thus, the General Assembly was assigned the tasks of initiating studies and making recommendations for the purpose, inter alia, 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 13(b).


Another principal organ of the United Nations, the Economic and Social Council, was entrusted in Article 62 with a function to make recommendations for the purposes of promoting respect for, and observance of, human rights and fundamental freedoms for all (paragraph 2) and to prepare draft conventions for submission to the General Assembly, with respect to matters falling within its competence) paragraph 3). For organizational purposes, Article 68 provides that [T]he 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.


It may be concluded that both the number and the scope of human rights provisions in the UN Charter is prima facie quite impressive in itself. This becomes particularly evident when the UN Charters is contrasted with its predecessor, the Covenant of the League of Nations, which was entirely silent on human rights issues. However, as a reflection of the compromise reached at the San Francisco Conference in 1945, the human rights clauses of the Charter show signs of ambivalence and vagueness.


In order to properly appreciate the legal character and significance of the UN Charter Human Rights Provisions please read the following extract from.


Although both in the Preamble and in Article 1(3) the Charter sets out nothing but the pious intentions and purposes of the United Nations in the field of human rights, it nevertheless translated these general statements of a common intention into several specific obligations set forth in its operative part. Thus there is nothing in these provisions, particularly in the Preamble, that would add to or subtract from the operative provisions of the main text of the Charter.


It is significant in itself, however, that the Charter conferred on human rights the rank of not an ad hoc, but of a long-term and constant objective of the United Nations. Thus the Charter assumes in essence a permanent and dynamic attitude on the part of the United Nations, both the organization and its members, towards respect for human rights. This conclusion may directly be inferred from the content and nature of all seven human rights provisions. In particular, it is confirmed by the mandatory wording of Article 13(1) (initiating studies and making recommendations by the General Assembly), Article 55 in conjunction with Article 56 (action for international cooperation) and Article 68 (explicit mention of setting up a commission) in the field of human rights.


One of the innovative approaches reflected in the human rights provisions of the Charter is their formulation in an interdependent context as one prerequisite for ensuring international peace and security, friendly relations among nations, welfare of peoples and other socioeconomic objectives. Human rights were thus placed against a broader background of political, economic and social aspects. This linkage is most clearly envisaged in Articles 55 and 56. Although the very relationship between peace, development and human rights is not entirely a new concept, it lifts this interdependence to the level of the organization’s primary purposes. In other words, obligations of international cooperation for the achievement of these values and purposes created a normative framework and potentials for further joint and separate actions by the United Nations and their Members. Human rights clauses in the Carter exhibit also clear signs of weakness and vagueness both politically and legally.


Irrespective of its lofty statements, the Charter has not adequately addressed the problem of colonialism. The whole arrangement concerning a trusteeship system and human rights (Article 76) was nothing but a reflection of the then colonial powers double standards. The international community learned much about the inhumanity of Nazism and Communism, but at the same time accepted colonialism as another malaise and enemy of human rights based on a respect for inalienable and inherent human dignity.


In assessing the seven human rights provisions of the Charter one should also point to certain weaknesses in their legal character. While the Charter refers throughout its text to the concept of human rights and fundamental freedoms, their definition is missing, nor does the Charter make any mention of the machinery to be used to secure their observance. This weakness appears, however, to be of significance since the drafters of the Charter were well aware from their domestic constitutional and political background what the terms human rights and fundamental freedoms had meant in at least their commonsensical meanings. In addition, one may reasonably question the very indispensability of elaborating such a definition. The real problem that remains is thus not the general and descriptive definition of human rights and fundamental freedoms as such, but rather defining their extent, the identification of their precise content and their defining their extent, the identification of their precise content and their implementation mechanisms. These demands were largely remedied and satisfied with the adoption of the Universal Declaration of Human Rights, the International Covenants and other instruments, including the establishment of conventional and extra-conventional monitoring procedures.


Furthermore, while there should be no doubt that all these provisions of the Charter, whatever their wording, are legally binding treaty provisions, their imperative and binding force is diverse in nature. In the human rights clauses of the UN Charter there is a somewhat general, cautious and open-ended manner in the way they were drafted. It is no coincidence that one encounters referenced in the Charter to such terms as promoting, encouraging and assisting in the realization of, instead of tougher terms like protecting, maintaining, safeguarding or guaranteeing human rights and fundamental freedoms.


Furthermore, a deliberate resort to these open-ended terms was coupled with attributing no power functions to such organs as the General Assembly or the Economic and Social Council, which shall initiate studies and may make recommendations (see Articles 13 and 62). During the San Francisco Conference proposals that the Charter should assure not only promotion and observance, but also protection of human rights, was defeated because some delegations believed that such language would have inappropriately raised expectations in relation to the United Nations action on specific human rights problems.


There is actually no doubt that the factor which mostly determined the open-ended formulation of human rights clauses was the prohibition, contained in Article 2(7), of intervention by the United Nations in matters which are essentially within the domestic jurisdiction of States. On the other hand, however, already in 1945 this principle was construed in terms of a prohibition against exerting direct pressure through force or the threat of force. Thus the very discussion, study, enquiry or making recommendations on human rights problems does not constitute an intervention in the sense of Article 2(7). Although this interpretation was challenged for decades by predominantly autocratic regimes, it finally gained ground and is virtually universally recognized nowadays.( But its legal basis is still controversial)  


All in all, these developments help to explain and clarify why among the seven principles enshrined in Article 2 it is not possible to identify an explicit formulation of the principle of international respect for human rights, while the principle of the prohibition of interference in the internal affairs of States eventually prevailed. It is nevertheless possible to submit that a series of detailed provisions in the Charter argues for the recognition of the international respect for human rights as a key principle of the United Nations. The experience of the United Nations has shown that harmonization of Article 2(7) and the human rights clauses of the Charter have proved to be feasible.


Notwithstanding the apparent weaknesses of human rights clauses in the UN Charter and their largely ‘lex imperfecta’ character, one should not overlook the fact that they remain binding international legal obligations for all the member of the international community.


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