The Preamble of the United Nations Declaration of Human Rights.

Authorvan Aggelen, Johannes
  1. INTRODUCTION

    The First World War was fought for the ideological independence of nationalities and for the establishment of a collective security system and international peace. The Second World War then essentially generated a crusade for human rights. Indeed the first part of the twentieth century witnessed a real counter-revolution, reincarnating all of the principles of liberty and equality without discrimination already enshrined in the English Magna Charta of 1215(1) and the French Declaration of the Rights of the Citizen of 1789.(2) The preamble of the Universal Declaration of Human Rights (Universal Declaration or Declaration) is the modern expression of these ideals.(3)

    The victory of the United Nations over barbarism in 1945 could not have materialized without a formal recognition of human rights, and the fiftieth anniversary of the Universal Declaration gives an impetus for reflection on the rationae materiae of the preamble.(4) This article considers the birth of the Declaration and its relationship with the United Nations Charter.(5) Also examined are the contributions different countries and individuals made to the drafting of the preamble. Finally, this article notes many of the efforts the international community has made to recognize and define human rights in numerous, subsequent treaties and declarations, with attention paid to the influence the Declaration has had with respect to those efforts.

    The godfather of the Universal Declaration, Professor Rene Cassin, saw the Declaration as a means to achieve a better world.(6) Its spiritual mother, Mrs. Roosevelt, stated in an address at the Sorbonne that democracy, freedom and human rights had gained a definite meaning for the people of the world. She stressed "that we must not be deluded by the efforts of the forces of reaction to prostitute the great words of our free tradition and thereby confuse the struggler(7) Professor Cassin and Mrs. Roosevelt's views reflected the optimism carried forth in the drafting of the U.N. Charter. Additionally, when the General Assembly adopted the Universal Declaration on December 10, 1948,(8) it referred to the idealistic concepts of the U.N. Charter and elevated the four freedoms proclaimed in the Atlantic Charter of August 12, 1941 to a universal level.(9) Thus, the Declaration became nothing less than the definitive statement of the prevailing hopefulness and the high ambitions in the realm of human rights at the end of World War II.

    The Universal Declaration cannot, however, be regarded as having merely historical significance. It has tremendous contemporary importance because it entrusts every individual and every member of society to develop, through education, more respect for the fundamental rights and freedoms it espouses.(10) In this regard, the Universal Declaration stands out in that it guides and inspires the endeavors of the United Nations in the field of human rights. The preambular paragraphs of the Declaration reflect the basic human rights philosophies of our times.

    The importance of the Declaration has grown tremendously since it was first signed, far beyond its role as guidance and inspiration for the United Nations. Far beyond merely ambition, the Declaration is now widely considered to be part of customary international law.(11) As such it is binding on all states,(12) and it continues to guide the development of international human rights law, in practice as well as in aspiration.(13)

  2. THE NATURE AND INFLUENCE OF THE PREAMBLE TO THE UNIVERSAL DECLARATION ON HUMAN RIGHTS

    A treaty's preamble aims at defining in general terms the parties' purposes and the considerations that led them to agree. Likewise, the preamble of the Universal Declaration explains why the drafters proclaimed the list of rights that they did.(14) It is this explanation wherein the drafters and the nations they represented came together to express their intention and recognition that the Declaration would be considered an expression of the past and future of international human rights instruments.(15) Moreover, it was their intention that the rights expressed in the Declaration would come to be seen not as a means to peace but as a birthright.(16)

    Although the Universal Declaration of Human Rights is not a legally binding treaty, rather a resolution adopted by the General Assembly in the form of a declaration, this does not affect the nature of its preamble.(17) Indeed, because the Declaration is not a treaty, but rather customary international law, the preamble has greater significance. The preamble has been interpreted into many of the instruments whose use thereof constitutes the widespread practice element of custom. Further, the preamble is an integral part of the Declaration and defines what the original fifty-six States had in mind when they adopted the Declaration,(18) and its words should be used as evidence of these ideas and purposes in any interpretation of the ensuing articles.(19) The influence of the Declaration's preamble thus extends beyond the ordinary in that it serves as part of the positive statement of international human rights law that is the whole of the Declaration.

  3. THE PREAMBLE OF THE UNIVERSAL DECLARATION IN THE CONTEXT OF THE UNITED NATIONS CHARTER

    The ideas expressed in the preamble of the United Nations Charter anchored and inspired the drafting of the preamble of the Universal Declaration.(20) The U.N. Charter itself contains seven specific references to human rights.(21) Article 13b, which entitles the General Assembly to make recommendations in the field of human rights,(22) may even be considered the cradle of the Declaration. By making the study and promotion of international human rights and fundamental freedoms a United Nations mandate, this Article laid the groundwork for the fundamental tenet of the Declaration. Clearly, the drafters of the U.N. Charter and then the Declaration saw the need for education to further the common goal of human rights and fundamental freedoms.

    In addition to helping lead the way to the Declaration's drafting, the U.N. Charter's language was mirrored in the Declaration. For example, The second preambular paragraph of the U.N. Charter reads, "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...."(23) The author of this paragraph, Field Marshal Smuts, presented his draft to the San Francisco Conference in a slightly different form. His proposal read, "To re-establish faith in fundamental human rights, in the sanctity and ultimate value of human personality, in the equal rights of men and women and of nations large and small...."(24) Thus the spirit of his words remained intact although the text of his proposal was changed.

    The Rapporteur of Sub-Committee I on the preamble had the following comment on the second preambular paragraph, "that faith in fundamental human rights had actually never faded, but although it was one of the most important factors which had moved men and women in all lands to accept the sacrifices by which victory was achieved, it needed reaffirmation in the U.N. Charter."(25) The U.N. Charter's reaffirmation then became the Declaration's call to action.

    In the Declaration's preamble, Field Marshal Smuts' proposal was renewed and integrated into the final version. Although some words were changed, in the text of the Declaration adopted on December 10, 1948, the gravaman of his proposal remained as the fifth preambular paragraph.(26) The final version deleted a second reference to human rights in the preamble, namely. "... by the establishment of conditions under which justice and respect for the obligations of international law and treaties and fundamental human right and freedoms can be maintained...."(27)

    The Coordination Committee proposed to substitute the word "value" in the Smuts draft for "worth", indicating that "value" had an economic connotation that was inappropriate with reference to human beings.(28) It is fortunate that no action was taken on the draft amendment proposed by the Colombian delegation; because of its vague formulation it could have opened anew the Pandora's box. It read, "... to declare that the international recognition and protection of the essential rights of the individual is a necessary condition of peace, both within States and in their relations with each other."(29)

  4. PROPOSALS FOR THE PREAMBULAR PARAGRAPHS OF THE UNIVERSAL DECLARATION; INFLUENCE BEYOND THE UNITED NATIONS CHARTER

    Influences on the Declaration were not limited to the U.N. Charter and its drafters. Fifty-six nations participated in the Declaration's drafting and coordination, and each nation contributed--although some nations took a lead role. The French government in its comments on the preambular paragraphs of the draft Declaration did the groundwork and paved the way for the adoption of the final text in December, 1948.(30) Preambular paragraph 1 uses the words "whereas ignorance and contempt for human rights are one of the root causes of human suffering...."(31) This was the only draft where a negative connotation comes first. In all the other drafts a positive statement preceded the clause on disregard and contempt for human rights.(32)

    The final draft of the first preambular paragraph was taken from the American proposal, which read: "Whereas recognition of the inherent dignity and the equal rights of all the persons is the foundation of freedom, peace and justice in the world."(33) Not all of the proposals were included in the preamble, however. The proposal by the former Union of Soviet Socialist Republics did not land in the preambular part of the Declaration. Rather, it became the so-called "non-discrimination clause" of Article 2, substituting the words "proclaimed by the Charter" for "set forth in this Declaration."(34)

    Apart from drafts prepared by members of the Commission on Human Rights...

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