3 Economic, Social and Cultural Rights under the UDHR

Prof. Rehan Abeyratne

Introduction

The Universal Declaration of Human Rights (UDHR) is the foundational document of international human rights law. It was also the first international instrument to set forth a comprehensive set of economic, social and cultural rights.1 The UDHR expressed these rights in broad, aspirational language and made clear that they are to apply to all human beings regardless of nationality, race, religion, sex, or other status. For these reasons, the UDHR is the most well-recognized and cited human rights instrument today. It was a revolutionary document and remains the starting point for any discussion on human rights, including economic, social and cultural rights.

This module will introduce students to the text of the UDHR, the history of its drafting, its status under international law, and its impact on the development of human rights law. It will focus, in particular, on UDHR provisions that establish economic, social and cultural rights that would later be codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Learning Outcomes:

After completing this module, students should know and understand:

• The UDHR’s historical origins
• The UDHR’s structure and status under international law
• The economic, social and cultural rights provisions in the UDHR

1. The Origins of the UDHR

The Universal Declaration of Human Rights (UDHR) of 1948 (available here) is the most widely known and most often cited international human rights instrument. It has been translated into more than 400 languages and has been hugely influential in spreading the language and philosophy of human rights around the world.

The UDHR emerged from World War II (1939-45). The international community was shocked by the brutality of the War. The extent of the devastation was unprecedented; millions of combatants and civilians were killed, and whole cities were razed. The details of some of the worst atrocities committed during the War only emerged afterward. These include the systematic murder of six million Jews in the Holocaust, Nazi crimes against other minorities, and the widespread mistreatment of prisoners of war. In light of these grave offenses, the international community came together to form the United Nations (UN) in 1945. The organization’s principal aims were set forth in the Preamble to its Charter, which declares the people of the United Nations seek 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.”

The Charter’s affirmation of fundamental human rights is significant and paved the way for the creation of the UN Commission on Human Rights in 1946. The Commission was tasked with drafting a list of universally recognized rights. It comprised of 18 members, elected from the fifty-one states that were UN members at the time, and was chaired by former First Lady of the United States, Eleanor Roosevelt. In less than two years, the Commission produced a comprehensive list of rights that was adopted as the Universal Declaration of Human Rights by the UN General Assembly on 10 December 1948. 48 out of 56 UN member states voted in favor of adopting the Declaration; no states voted against adoption, but eight states abstained.

The UDHR was a revolutionary document in at least two ways. First, it marked a pivotal turning point in history. Prior to World War II, the concept of “human rights” – that certain basic protections and entitlements must be granted to all human beings by virtue of their common humanity – had little purchase among the international community. Since the Treaty of Westphalia (1648), international law has been organized around independent, sovereign nation-states. The principal feature of this system was that states had obligations to one another (in the form of treaties, for instance) but had no internationally binding obligations with regard to how they treated their own citizens. The UDHR fundamentally changed the nature of state sovereignty. It established universal rights that applied to all peoples and that every state was obliged to respect, protect and fulfill. States could no longer act with impunity within their own boundaries and citizens of oppressive regimes could call upon a rich language of rights to articulate their grievances to the outside world.

Second, the UDHR was the catalyst for today’s comprehensive international human rights framework. The UDHR was intended as a precursor to more detailed international instruments on specific areas of human rights. These instruments would combine to form a robust legal architecture to protect against human rights violations throughout the world. The two principal treaties to emerge from the UDHR were the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both treaties were introduced in 1966 and came into force in 1976. These two covenants, together with the UDHR, are commonly referred to as the “International Bill of Rights” – the core instruments of the international human rights framework. They are supplemented by a number of other treaties, including the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989), and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).

II. Structure and Legal Status of the UDHR

In drafting the UDHR, the UN Human Rights Commission sought to produce a document that would be brief and aspirational in nature. They wanted it to be accessible not only to governments and experts but also to ordinary people. The drafters also wanted the Declaration to gain widespread approval from the UN member states, regardless of their political and social views. They, therefore, articulated rights at an abstract level and avoided thorny issues such as state obligations to respect, protect and fulfill the rights established in the Declaration.

For these reasons, the UDHR is a remarkably concise document written in clear, jargon-free prose. It consists of two parts: (1) a Preamble that sets out the reasons for adopting the Declaration and (2) a list of 30 articles that covers the whole spectrum of human rights. The Preamble is worth reading in its entirety:

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 the 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 had determined to promote social progress and better standards of life in larger freedom,

Whereas the Member States have pledged themselves to achieve, in co-operation 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.

The Preamble proceeds very logically. It begins with the self-evident claim that all human beings have an inherent dignity that entitles them to an equal and inalienable set of rights. It then refers to recent events – the “disregard and contempt for human rights” that led to “barbarous acts” is an implicit reference to atrocities committed in World War II and to the Holocaust. To ensure such crimes do not recur, to protect human rights through the rule of law, and to promote “friendly relations between nations,” the UDHR establishes a universally applicable set of human rights.

The UDHR is therefore aspirational in its aims. It does not seek to impose legal obligations on member states; rather, it puts forth common standards that all states must work towards achieving. Nonetheless, the UDHR is generally understood today as part of the customary international law. Its provisions have been codified in multilateral treaties, such as the ICCPR and ICESCR, which have been ratified by a vast majority of UN member states. In 1968, during the International Conference on Human Rights in Tehran, representatives proclaimed that the UDHR “states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community.” Thus, the UDHR is widely considered the core instrument of international human rights law and has attained legally binding status. It is important to note that while treaty provisions apply only to states that ratify the relevant treaty, the customary international law obligations contained within the UDHR apply to all states.

Economic, Social and Cultural Rights under the UDHR

The UDHR comprises of 30 articles that span the whole spectrum of human rights. These articles cover civil and political rights as well as economic, social and cultural rights. All the rights set forth in the UDHR are rooted in the concept of human dignity – the notion that every human being is worthy of respect – and are therefore cast as individual rights, not group rights, which apply to all human beings irrespective of any status (race, sex, religion, nationality, etc.).

Articles 1 and 2 of the UDHR establish these basic conditions. Article 1 provides that “All human beings are born free and equal in dignity and rights.” Article 2 elaborates on this basic premise by ensuring that “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.” It adds that no distinction may be made on the basis of “the political, jurisdictional or international status of the country or territory to which a person belongs.”

The rights established in the UDHR are also indivisible and interdependent. States cannot choose to protect only a subset of rights and permit others to be violated. All the rights established in the UDHR must be protected, as they mutually reinforce one another to form an umbrella over all human beings. For our purposes, this is significant because it means that economic, social and cultural rights receive equal protection to civil and political rights.

The UDHR sets forth a number of economic, social and cultural rights in Articles 22-27. Article 22 establishes a right to social security and, in general terms, declares that everyone is entitled to “the economic, social and cultural rights indispensable for his dignity and the free development of his personality.” Article 23 grants everyone the right to work. This is a detailed provision that includes a free choice of employment, just and favorable working conditions, unemployment protection, fair wages, and the freedom to join trade unions. Article 24 advances the right to “rest and leisure,” which includes reasonable working hours and periodic paid holidays.

Article 25 establishes the right to an adequate standard of living. This includes, among others, the right to adequate food, clothing, housing, healthcare, and social services. Over time, these elements or sub categories have been detached from the right to an adequate standard of living to become individual rights in themselves. This is particularly true in the domestic laws of various states, including in India, where the Supreme Court has declared separate rights to food, health, housing, and education under the Indian Constitution.

Article 26 sets out the right to education. This is a comprehensive provision that mandates compulsory and free elementary education. It requires states to make technical and professional education generally available and higher education available on the basis of merit. In terms of education content, the UDHR calls on states to gear education towards “the full development of the human personality” and to promote the goals of the UDHR and the United Nations. Article 26 also makes clear that parents, not the government, shall choose the kind of education their children should receive.

Article 27 is the only provision that directly addresses cultural rights. It grants everyone “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.” It also includes a right to patent and copyright protection, providing that “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.”

Summary

The Universal Declaration of Human Rights (UDHR) was a revolutionary document when announced by the UN General Assembly in 1948. It set forth a range of human rights that would apply to all human beings by virtue of their common humanity and dignity and without regard to any differences in status. The UDHR is written in lucid, non-specialist language so that it could articulate its aims in broad, aspirational terms. For the first time, states were held to a set of common standards with regard to how they respected, protected and fulfilled the rights of their own citizens. Though the UDHR did not contain any binding legal obligations when it was promulgated, its provisions have since been codified in large multilateral treaties like the ICCPR and ICESCR and today are considered part of the customary international law.

The UDHR sets out a comprehensive list of human rights in 30 articles. These rights are indivisible and interdependent, meaning that states must respect them all and, together, they form a comprehensive framework of human rights protection. Articles 22-27 establish a range of economic, social and cultural rights. These include the right to social security, the right to work, the right to an adequate standard of living, the right to education, and the right to participate in the cultural life of the community.

Reference

• These are rights aimed at fulfilling certain material needs, such as food, water and shelter, as well as providing access to the cultural life of the community.
• The differences between the two sets of rights, and the debates surrounding enforcement of economic, social and cultural rights, will be discussed in a subsequent chapter.