The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.
Jeanne Mirer
The UN Charter starts with an inspirational preamble:
We the peoples of the United Nations are determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind…”
and the second point is “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, …”
and the purpose of this is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained…”
and more importantly “to promote social progress and better standards of life in larger freedom,”
Following the preamble and the purposes and principles of the Charter, Article 1.3 introduces human rights when it says that one of the purposes and principles of the Charter is to “achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion”
Historically, it was not pre-ordained that the guarantee of human rights would be incorporated into the Charter. That is, when the concept of the United Nations was first discussed by leaders of the Allies following World War II, human rights was not part of the discussion.
The primary issue was how the victorious powers from World War II could collectively secure the peace going forward. This meant disarming Germany, Japan and Italy and placing the United States, the Soviet Union and the victorious powers in charge of making sure that wars would not break out again between them.
But between the time that initial concept was articulated and the delegates assembled in San Francisco to write the Charter, there was a major outcry from civil society to address the root causes of the war. Fifty organizations outside of the state delegations were present at the United Nations Charter Conference, including the National Lawyers Guild.
In the actual Charter, the concept of human rights is entwined throughout. The Charter addresses human rights in Article 55 and again connects the issue of peace and the conditions necessary for peace:
“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:
- higher standards of living, full employment, and conditions of economic and social progress and development;
- solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
- universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
Human rights are secured in Article 62 which refers to the Economic and Social Council.
Article 62 states:
“The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly to the Members of the United Nations, and to the specialized agencies concerned.”
“It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.”
These provisions of the Charter make clear that protecting and realizing human rights are not incidental to the Charter. Not only are human rights invoked in the Preamble and the purposes of Charter, Articles 55 and 62 amplify their realization – especially economic, social and cultural rights – as critical ways to promote peace.
While human rights are not defined in the Charter, they are explained in the Universal Declaration of Human Rights (UDHR) and in the binding instruments – the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These last two treaties have been signed and ratified by most of the countries in the world. The UDHR, ICCPR and ICESCR are collectively known as the International Bill of Rights.
The ICESCR requires all governments to use as much of their budgets as possible to realize the economic rights of the people to jobs, health care, education, and to all kinds of rights which are necessary for an adequate standard of living and a life of dignity.
The ICESCR also says that once a state makes progress, the state must continue to progressively realize all of these rights and at no time can the country reverse course and go back. After achieving some rights, a state cannot then take them away.
These covenants and other human rights instruments relate back to the Charter and impose obligations on all member states to enforce their mandates and abide by these human rights treaties as part of their adherence to the Charter.
Unfortunately, economic policies from Bretton Woods forward have focused on the development of free trade agreements. Through the World Trade Organization, countries have been forced to accept neoliberal corporate-friendly free trade agreements, which interfere with the ability of states to achieve their obligations to implement the human rights as required by the Charter, especially economic rights.
Article 103 of the Charter provides: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
Article 103 is the Charter’s supremacy clause. Peoples of the world seeking to comply with the human rights instruments which are part and parcel of the Charter may challenge impediments to realizing human rights, including the strictures of the WTO and other trade or further agreements under Article 103. Peoples of the world should elevate human rights over the impacts of austerity, free trade agreements and the “human rights” by ending neoliberal economic policies.
APPENDIX
United Nations Charter
Preamble:
“WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, 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, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and…. to promote social progress and better standards of life in larger freedom,
Article 1. 3
To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;
Chapter IX: International Economic and Social Cooperation
1. Article 55
2. 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:
- higher standards of living, full employment, and conditions of economic and social progress and development;
- solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and
- universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
Chapter X: The Economic and Social Council
1. Article 62
- The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly to the Members of the United Nations, and to the specialized agencies concerned.
- It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.
- It may prepare draft conventions for submission to the General Assembly, with respect to matters falling within its competence.
- It may call, in accordance with the rules prescribed by the United Nations, international conferences on matters falling within its competence.
2. Article 103
In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.