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Human rights obligations under the United Nations charter

Article  in  The International Journal of Human Rights · June 1999

DOI: 10.1080/13642989908406807

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 HUMAN RIGHTS OBLIGATIONS UNDER THE UNITED NATIONS CHARTER
Zenon Stavrinides, University of Bradford
Published in The International Journal of Human Rights, Vol. 3, No. 2, Summer 1999

1. Introduction: A Problem of Interpretation

The former Secretary-General of the United Nations Dr Kurt Waldheim writes in his memoirs that
"the United Nations will go down in history as the first international organization to concern itself
in a sustained and serious way with the rights of all human beings", adding that "it is the principal
agency for focusing world attention on the gravest violations of such rights." 1 The Charter of the
United Nations in its Preamble reaffirms "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 in its operating part contains no fewer than six articles with explicit references to human
rights, making the subject one of the central themes of the instrument.

However, Dr Waldheim notes a certain "ambivalence in the Charter established forty years ago
[which] persists to the present day. On the one hand Members pledge themselves to take joint and
separate action in co-operation with the Organization to promote universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion. On the other hand, the Organization is not authorized 'to intervene in
matters essentially within the domestic jurisdiction of any state...' This provision is too often used
to override any specific human rights obligations a state may have accepted. When the
Organization seeks to induce Members to observe universal standards, it moves into a delicate
and often inflammatory area of activity."2

The ambivalence of the Charter - committing the United Nations both to working for the
establishment of respect for human rights in all states, and also to refraining from interference in
the internal affairs of any state - is explained by the historical circumstances in which the
instrument was drafted and signed. The representatives of the fifty governments of the
anti-fascist alliance who met in San Francisco between April and June 1945 to draft the Charter

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were well aware of the terrible violations of human rights and general repression practiced by the
enemy powers - Fascist Italy, Nazi Germany, Japan and their lesser partners - against their own
citizens and peoples in conquered countries before and during the Second World War, and many
of them wanted to make respect for human rights a matter of international concern; but they also
wanted to re-establish the traditional principle of the sovereign equality of all states, which had
also been violated by these powers.

The ambivalence and the resulting tensions in the Charter gave rise from the beginning to a
serious problem of interpretation of the human rights provisions, and more specifically of the
nature of the obligations which these provisions imposed on the United Nations and its
Members. With the start of the Cold War in the late 1940s, politicians in various countries, as well
as representatives of governments at the United Nations, were often engaged in controversy as to
whether some state or states were fulfilling their obligations, and if not, what the Organization
was to do about the matter. But even disinterested scholars of proven integrity understood these
obligations in different ways. For example, Hans Kelsen, one of the earliest and most eminent
commentators on the Charter, expressed the view that "the function of the United Nations with
respect to human rights is not very consistently determined in [it]", and went on to argue that "the
language used by the Charter in this respect does not allow the interpretation that the Members
are under legal obligations regarding the rights and freedoms of their subjects."3 Georg
Schwarzenberger, another important commentator, held that "in the Charter, a clear distinction is
drawn between the promotion and encouragement of respect for human rights, and the actual
protection of these rights. The one is entrusted to the United Nations. The other remains in the
prerogative of each Member State."4 A very different interpretation was provided by an equally
important jurist, Sir Hersch Lauterpacht, who wrote that the Charter of the Organization actually
imposes on the Member States the "legal duty to respect and observe fundamental human rights
and freedoms."5

Enough has been said to show that the human rights provisions of the United Nations Charter are
unclear in their meaning and implications as to raise a serious problem of interpretation. To this
problem, the present paper offers a modest contribution. The six provisions fall into two groups.

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Articles 1(3), 55(c) and 76(c) set out the United Nations' purposes or objectives in relation to
human rights; an attempt will be made in the Section 2 to clarify the meaning of these provisions
and trace out in general terms their implications for the obligations which the Organization and its
Members have assumed under them. Articles 13(1)(b), 62(2) and 68 all relate to the powers and
responsibilities which various organs of the United Nations have in the field of human rights; and
these will be examined in Section 3.

2. The Promotion of Human Rights as a Purpose of the United Nations

According to Article 1(3), one of the purposes of the United Nations is

to achieve international co-operation...in promoting and encouraging respect for human

rights and for fundamental freedoms for all without distinction as to race, sex, language,
or religion.

It is self-evident that the Organization is obliged to pursue and try to realize its purposes. At the
San Francisco gathering the chairman of the United States delegation Secretary of State Edward
Stettinius expressed the sense of the Conference when he stated that the purposes listed in Article
1 of the Charter "are binding on the Organization, its organs and its agencies, indicating the
direction their activities should take and the limitations within which their activities should
proceed."6

Article 1(3) may be compared with a similar provision in Article 55:

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:
(a) .....
(b).....

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 (c) universal respect for, and observance of, human rights and fundamental freedoms for
all without distinction as to race, sex, language, or religion.

Under Article 55(c), the United Nations is obliged to promote a certain end which is essentially
identical with the end which, under Article 1(3), the Organization is obliged to promote and
encourage by achieving international co-operation.7 In fact the two articles are more similar in
meaning than they may appear. On a superficial reading, the obligation imposed on the United
Nations by Article 1(3) relates to the achievement of international co-operation for the purpose of
promoting respect for human rights, whereas the obligation imposed by 55(c) relates directly to
the promotion of this end itself. However - as will soon become evident - there is no way in
which the Organization can promote this end except by means of international co-operation. The
interesting difference between the two articles is that Article 55, unlike the other one, contains a
statement which connects (A) the promotion of respect for human rights, with (B) the creation of
conditions of stability and well-being, and that with (C) the establishment of peaceful and friendly
relations among nations. Indeed, there is a strong suggestion that the justification of (A) is that it
conduces to (B), and that of (B) is that it conduces to (C). The statement reflects the theory,
which many people in the United States and other Western countries accepted during and after
the Second World War, that violations of human rights (such as those that had been practiced by
the Fascists, the Nazis and their partners) lead to misery and instability, which in turn may
endanger the peace of the world.

These two articles may now be compared with Article 76, which states "the basic objectives of the
trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1."
These objectives include:

(a) to further international peace and security;

(b).....
(c) to encourage respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion...
(d).....

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Objective (c) concerns the encouragement of a certain end which is identical with the end referred
to in Article 1(3), and also is essentially identical with that in Article 55(c). By Article 76(c) the
United Nations, under whose authority the trusteeship system functions, is obliged to encourage
the realization of this end. The practical effect of 76(c) is simply to emphasize that the general
obligation which the Organization assumes under the two other human rights provisions, applies
in relation to trust territories too. Respect for human rights is (at least according to the theory
implicit in Article 55) conducive to international peace, which is the first objective of the
trusteeship system, as indeed of the United Nations itself.

Granted that the United Nations is obliged by its own Charter to pursue the purpose or objective
of promoting and encouraging respect for human rights, what obligation does this fact impose on
the Member States? A general kind of understanding of the matter may be achieved by
considering certain provisions in Article 2 of the Charter. The article begins with the words: "The
Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles" - and proceeds to specify seven principles. In the
present connection, the most significant of the principles are the following:

(1) All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfil in good faith the obligations assumed by them in accordance with the
present Charter.
(2) All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter...
(3) Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state...

It may be argued that paragraph (2) merely affirms the Members' general obligation to fulfil their
various obligations under the Charter - which is tautological and superfluous.8 However, it is
important to point out that the principle expressed in the paragraph is linked to, and must be read
in conjunction with, the introductory words which refer to the purposes of the United Nations.

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The underlying idea is that the United Nations' purposes, or rather the requirement and duty of
the Organization to pursue them, imply for all the Members certain relevant obligations. What
obligations? A general sort of answer is suggested by paragraph (5), namely: obligations in the
form of giving assistance to whatever the Organization does in pursuit of its purposes. This must
be taken to mean that Member States ought not only to refrain from obstructing the efforts of the
Organization, but also to participate actively in these efforts. If Member States merely refrained
from being obstructive, but they never did anything positive in connection with the purposes of
the Organization, nothing much would ever be achieved. It follows, then, that the obligation of
the United Nations to make efforts to develop international co-operation for the purpose of
promoting respect for human rights implies that all Member States have an obligation to
participate actively in these efforts.

Nothing more specific can be established from a study of Article 2 about the Member States'
human rights obligations, except a negative point contained in paragraph (7). According to this
paragraph, the United Nations has no authority to undertake any action which constitutes an
intervention in the domestic affairs of any state. In other words, the Organization is not permitted
by its Charter - and therefore it is not obligated - to impose on any state, or compel it to accept,
any arrangements in its internal administration or its relations to its own inhabitants, for whatever
purpose. It was clearly understood by the authors of the Charter that whereas the United Nations
and its Members should assume obligations for the promotion of respect for human rights, the
actual observance of human rights was primarily the concern of each state. 9

The above conclusion receives confirmation from one specific provision of the Charter which
imposes directly of Member States a number of obligations relating to United Nations purposes.
This is Article 56, which lays down that:

All Members pledge themselves to take joint and separate action in co-operation with the
Organization for the achievement of the purposes set forth in Article 55.

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The meaning of this article, in so far as it relates to Article 55(c), is clear: it amounts to the
proposition that each Member State is under the obligation to take (a) action together with one or
more Member States, and (b) separate action, always in co-operation with the United Nations,
for the purpose to promoting human rights.10

3. The Fulfilment of Human Rights Obligations by the United Nations and its Members

The question now arises: What specific kinds of action are the United Nations and the Member
States required to take in fulfilment of their human rights obligations under the Charter? To
answer this question it is necessary to understand what the Organization and its Members can do
in this regard; in other words, what relevant powers and means they have at their disposal. It
would be quite unreasonable to suppose that the United Nations may be charged by its Charter
with obligations which come into conflict with Article 2(7), or which are beyond the powers and
means granted to it by the same instrument.

The United Nations organs which are most closely associated with the promotion of respect for
human rights are the General Assembly and the Economic and Social Council (ECOSOC). The
powers which these organs have in this connection are mentioned explicitly in three articles.
According to Article 13(1)(b):

The General Assembly shall initiate studies and make recommendations for the purpose
of...assisting in the realization of human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.

Article 62(2) provides that the Economic and Social Council

...may make recommendations for the purpose of promoting respect for, and observance
of, human rights and fundamental freedoms for all.

Again, Article 68 states that:

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 The Economic and Social Council shall set up commissions in economic and social fields
and for the promotion of human rights...

Besides these articles, there is also Article 10 which empowers the General Assembly to "discuss
any questions or any matters within the scope of the present Charter" - and these must be taken to
include questions and matters relating to human rights. Further, according to Article 62(3) and
(4), ECOSOC may prepare draft conventions for submission to the General Assembly and call
international conferences on matters falling within its competence - which cover human rights
issues. Finally, under Article 88 the Trusteeship Council has some limited powers to inquire into
political, economic, social and educational conditions in trust territories, and these conditions
clearly bear in various ways on the human rights of their inhabitants.

From the above review it appears that the powers which the various United Nations organs have
for the promotion of respect for human rights are of three basic and interconnected types. They
are:

(A) powers to study - which include, most importantly, powers to investigate and collect
information;
(B) powers to prepare reports, recommendations and draft conventions; and
(C) powers to debate.

These are the only relevant powers of the Organization, and they determine the range of action it
can take to fulfil its obligations under Articles 1(3), 55(c) and 76(c) to promote respect for human
rights. So the best the Organization can do is to exercise these powers as effectively as possible to
initiate the kinds of studies, reports, debates etc which are most likely to lead to the establishment
of respect for human rights everywhere.

It is important to be clear as to exactly what is involved here. It goes without saying that in the
last analysis only human beings can make studies, write reports and hold debates. When one refers

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to the United Nations and its organs as the initiators of studies, reports, debates etc, one refers
obliquely to representatives of Member States coming together and, with the authority and on the
instructions of their governments, co-operating through the various organs in making studies,
writing reports, and holding debates. A minimal co-operation among representatives is necessary
to bring life to these organs, to make them (as they are intended to be) instruments of United
Nations action. And if these organs are to function effectively, and carry out satisfactorily such
tasks as debating human rights violations in particular countries and recommending relevant
remedies, or undertaking studies, collecting information and publishing reports on various human
rights problems, or again drafting conventions for the protection of groups of human rights (to
mention examples of the types of work which the United Nations has actually been carrying out
for decades), then a high level of co-operation is necessary.

Such co-operation requires that the representatives of Member States, with the assistance of the
Organization's Secretariat, contribute information, ideas and arguments to the discussion of
human rights questions; try to understand and approach each other's point of view and to increase
areas of agreement; and generally strive in good faith to reach, if possible, a common position
which will command the support of many governments and peoples all over the world. Thus
under Articles 1(3), 55(c) taken in conjunction with 56, and 76(c), Member States must be taken
to have an obligation (among others too) to appoint to the United Nations able and
knowledgeable representatives, and to instruct them to work with others constructively and
effectively in ways provided for by the Charter, with a view to promoting respect for human rights
everywhere.

What is to promote respect for human rights everywhere? Basically it is to work to bring about a
certain state of affairs in which respect for human rights is established or secured in every part of
the world by means of suitable and effective legislative and administrative measures. In other
words, wherever there are human beings - in independent countries, or in colonial, trust or other
dependent territories - their human rights are to be protected by law and administrative policies,
with the support of an appropriate machinery of courts, police and penal institutions, as well as a
system of health, social and educational services.

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As was already indicated, the United Nations cannot normally force states to adopt the measures
necessary for securing respect for human rights, or to accept its recommendations for remedying
human rights violations, or to ratify and implement human rights conventions prepared and
adopted by it. What is open to the United Nations is to try to persuade or induce states to do
these things, by using good arguments and exercising its moral authority. The term 'moral
authority' refers to the highly regarded status of the United Nations as a universal organization
whose resolutions - as expressions of world opinion - even when they are not legally binding on
Member States carry considerable moral weight. States generally like to present themselves as
respecters of the United Nations and its resolutions, and no state will ignore them lightly.

An example may illustrate how the moral authority of the United Nations works. Let it be
supposed that that the General Assembly passes by a two-thirds majority a resolution which
declares that certain sorts of practices constitute racial discrimination and calls for their
eradication wherever they exist. Let it also be supposed that the minority of states which voted
against the resolution have these discriminatory practices and have no wish to eradicate them.
What can the United Nations do to achieve general compliance with its recommendation - for that
is the character of General Assembly resolutions - despite the inclination of the minority of states
to disobey? It must be appreciated that the fact that the resolution has been passed and has the
authority of the world body carries weight with the minority of states, and this acts against their
inclination to disobey. The Organization can increase this weight by publicizing widely the
resolution; asking Member States to provide information as to what, if anything, they have done
about eradicating the discriminatory practices; publishing this information; holding conferences
and debates; preparing and disseminating material to highlight the obnoxious nature and social
effects of these practices and drawing attention to the fact that a number of states still permit
them; and undertaking other kinds of activities too to mobilize international public opinion.

All these measures make it to a greater or lesser extent difficult for the minority of states to defy
the General Assembly resolution, and allow themselves to fall out of step with the civilized world,
which is by and large willing to abide by it. Such measures are unlikely to generate sufficient

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pressure to bring about desired changes in states which are steadfastly determined to defy the
resolution; but they may have a decisive influence on the less determined states - particularly if
considerable sections of their populations are against the discriminatory practices.

4. Concluding Remarks

In summary it may be said that the Charter imposes on the United Nations the obligation to
initiate international co-operation, and on the Member States the obligation to participate actively
and in good faith in such co-operation, for the purpose of promoting respect for human rights and
fundamental freedoms for all, by bringing about the adoption of suitable legislative and
administrative measures in all independent states and dependent territories. Indeed, the whole
United Nations system may be seen as a framework of organs, agencies and other formal
institutions, operating under international law, for the achievement of international co-operation in
pursuit of the various purposes of the Organization. Co-operation for the promotion of human
rights, carried out through the appropriate organs - basically the General Assembly and ECOSOC
together with its Commission on Human Rights - may take a variety of forms, which must always
be consistent with the principle of non-intervention in the domestic affairs of any state. Among
permissible forms of co-operation are:

(A) conducting studies and investigations, writing reports, holding debates etc on human rights
problems, and in due course preparing recommendations and draft conventions embodying
measures for the protection of human rights; and
(B) exercising as effectively as possible the moral authority of the Organization with a view to
persuading or inducing all states to accept the recommendations and ratify the conventions.

It has been noted by several commentators that the Charter is unsatisfactory as regards its human
rights provisions, because it nowhere specifies these rights. 11 The point itself is correct, but there
is a danger that its significance may be exaggerated. For the representatives of the fifty
governments who met in San Francisco in 1945 to write and sign the Charter, like the
parliamentarians in the signatory states who ratified it - indeed, like most people in civilized

11
countries - did share a common understanding of what were the most basic human rights, broadly
defined. A tradition of liberal thought going back to the 17th century - finding expression in the
English Bill of Rights of 1689, the American Declaration of Independence of 1776 and the
Constitution of 1789 together with the Bill of Rights of 1791, the French Declaration of the
Rights of Man and the Citizen of 1789, and a host of Constitutions adopted by European and
Latin American countries in the 19th and 20th centuries - was the common political heritage of
the nations which fought the Fascists, the Nazis and their partners during the Second World War.
So nobody could say in good faith in San Francisco or in the United Nations that, as the Charter
did not specify any human rights, he did not really know whether the Organization and its
Members had an obligation to promote universal respect for, and observance of, the right to life,
liberty and security of person. It was precisely because of this common political heritage that the
Commission on Human Rights was able to prepare, and the General Assembly on December 10,
1948 adopted without a dissenting voice, one of the most remarkable and influential political
documents of all times, the Universal Declaration of Human Rights. This document has come to
be regarded, quite properly, as an authoritative interpretation of the human rights provisions of
the United Nations Charter.

NOTES

1. Kurt Waldheim, In the Eye of the Storm (London: Weidenfeld and Nicolson, 1985), p. 134.

2. Ibid.

3. Hans Kelsen, The Law of the United Nations (London: Stevens & Sons Ltd., 1951), p. 29.

4. Georg Schwarzenberger, Power Politics, 3rd Ed. (London: Stevens & Sons, 1964), p. 462.

5. Hersch Lauterpacht, International Law and Human Rights (London: Stevens & Sons, 1950),
p. 147.

6. Quoted in L.M. Goodrich, E. Hambro and A.P. Simons, Charter of the United Nations:
Commentary and Documents, 2nd Edition (New York and London: Columbia University
Press, 1969), p. 25.

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 7. There is no doubt that the ends to be promoted by the United Nations according to Articles
1(3) and 55(c) are identical. Differences in their wording are unimportant and are attributable
to the fact that their final formulations were based on different texts, prepared by different
delegations and amended by different sub-committees. See Ruth B. Russell, A History of the
United Nations Charter (Washington, D.C.: Brookings Institution, 1958), p. 783.

8. Kelsen, op. cit., p. 88.

9. However, it was also understood that if a state practices violations against the human rights of
its own inhabitants so as to create conditions which threaten peace, then the matter ceases to
be its sole concern. Under such circumstances the Security Council may consider that it has the
authority to take action against that state. See Kelsen, op. cit.., pp. 29 f.

10.The authors of the Charter quite deliberately excluded from the scope of this obligation
'national' action, that is action taken by a single state independently of the Organization. Their
express intention was to confine the obligations of Member States to the sphere of
international, United Nations-initiated action. The very interesting legislative history of Article
56 is recounted in Russell, op. cit., pp.786-8.

11.See e.g. Kelsen, op. cit., pp. 29 f.

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