The Background to the Universal Declaration of Human Rights
English Bills of Rights
The idea that there should be a law that protects the private individual from abuses by the political system goes back to Magna Carta in 1215 (itself based on Henry I’s “Charter of Liberties” of 1100), but this document is very different from the UDHR. For one thing, Magna Carta was hardly universal in geographical terms, being signed reluctantly by a King (John) who was renowned for losing territory rather than gaining it. For another, most of the rights it guaranteed were those of a limited number of the king’s subjects, in particular, the barons and landowners who forced the king’s hand.
However, despite the fact that Magna Carta was greatly amended, revised and repealed in succeeding centuries, one overriding human right was established by it, and that right is one of the mainstays of the UDHR, namely “habeas corpus”, literally “you have the body”. This establishes that imprisonment without fair trial is something that should not be tolerated. It is found in many subsequent “Bills of Rights” and is behind Articles 9, 10 and 11 of the UDHR.
The Petition of Right of 1628 was an attempt by Parliament to remind the then king, Charles I, that he had duties under Magna Carta to respect the rights of his subjects. His refusal to accept the Petition was one of the causes of the English Civil War, and the main consequence of that was that kings could no longer act in an arbitrary way, not respecting the rights of the people, and get away with it.
The Bill of Rights of 1689 was another precursor of the UDHR. Once again, a king (Charles’s headstrong son, James II) had tried to ride roughshod over the rights of his people, and had lost his throne (but not his head), as a result. Parliament was determined to state, once and for all, that the people had rights and that the new king could only govern in peace if he accepted this fact. King William III, who had been invited by Parliament to take the throne alongside his wife Mary (James’s elder daughter) had no problem with this.
The rights in question were mostly to do with the relationships between the monarch, the subject, and Parliament, and included a reaffirmation of habeas corpus, with the addition of the right to freedom from “cruel and unusual punishments” and excessive bail conditions. However, the main purpose of the Bill was to protect the rights of Parliament, which was itself unrepresentative of the vast bulk of the population, rather than to set out the human rights of the common man.
Bills of Rights in America and France
The idea of stating the rights of the individual in a legally enforceable document was strongly debated when the American Revolution took place and led to the birth of a new nation, free from the tyranny of a foreign monarch. It was argued, by Alexander Hamilton and others, that there was no need for a Bill of Rights, as there was no king against whom rights must be protected. Also, if a right was not explicitly stated, did that not imply that other rights were not protected?
However, the drive towards the declaration of rights was stronger than the opposition, prompted in part by the example of Virginia, whose Declaration of Rights (1776) included such ringing phrases as “all men are by nature equally free and independent, and have certain inherent rights”, which is much closer to the modern definition of human rights than anything that had preceded it.
The Virginia Declaration included many rights that are recognizable from its English predecessors, but also included freedom of the press and freedom of religion.
The substance and tone of the Virginia Declaration were transferred very easily to the American Bill of Rights, which constitutes the first ten amendments to the Constitution, added in 1791, and indeed to the 1776 Declaration of Independence. The words of the Declaration of Independence that state:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”
are virtually the same as the equivalent phrases of the Virginia Declaration, and, in turn, the Declaration of Independence’s influence on the UDHR is unmistakable, where Article 2 states:
“All human beings are born free and equal in dignity and rights”
and Article 3 reads:
“Everyone has the right to life, liberty and security of person”
Mention must also be made of the “Declaration of the Rights of Man and of the Citizen”, which was one of the texts that inspired the French Revolution of 1789. The same themes that have been noted above appear in this document, with the emphasis being very much on the rights of the individual. In France, the tyrannical power of the king was also very much in evidence, but it was also coupled with the tyranny of the powerful, whereby an aristocratic landowner could silence an opponent without redress in law, by issuing a “lettre de cachet” that would put him in prison for as long as the man of power required.
The Declaration therefore supports the "liberty, property, security, and resistance to oppression” of the “Third Estate”, which was everyone outside the ranks of the aristocracy and the clergy. It also called for fair taxation, and freedoms of speech and the press. Presumption of innocence before being proved guilty was also there.
It is noticeable that, in the French Declaration, property rights are given considerable emphasis. The Third Estate included the whole of the middle class, as well as the peasantry, and it is important to bear in mind that the French Revolution was led mainly by lawyers, whose concern was, first and foremost, to protect their own rights.
Elements of the French Declaration are certainly there in the UDHR, such as Article 9 that offers protection against arbitrary arrest, and Article 11 on the presumption of innocence.
However, the rights of women have yet to be stated explicitly in any of these documents.
The Geneva Conventions and the Holocaust
What sets the UDHR apart from all the above-mentioned Declarations is the international aspect. We can trace the concept of human rights being applicable across borders from the formation of the International Committee of the Red Cross in 1864 and the Geneva Conventions (the first of four in 1864, the last in 1949). These required signatory countries to adopt them as national legislation, thus guaranteeing the human rights of prisoners of war (and non-combatants) in conflicts fought between those countries.
The treatment of prisoners during the wars of the 20th century was largely governed by which countries were signatories to the Geneva Conventions and which were not. Thus, during World War Two, British and American prisoners were treated reasonably well by Nazi Germany but not by Japan. The Soviet Union had not signed, and Soviet prisoners were very harshly dealt with by the Germans, being treated as virtual slaves in many instances.
The main affront to human rights in the years preceding the UDHR was clearly the Holocaust, by which is meant the genocide of European Jews, Gypsies, and others before and during the 1939-45 war. The Geneva Conventions were powerless to protect these civilian populations, and so something was needed that would prevent anything remotely like the Holocaust ever happening again.
The Universal Declaration of Human Rights
The formation of the United Nations at the close of World War Two provided the mechanism through which an international treaty to protect human rights would be possible. The charter of the United Nations, signed originally by 51 countries in 1945, was not thought to be explicit enough on questions of human rights, particularly those of individual civilians, and so the process was started that led to the creation of the UDHR in 1948.
Its origins, therefore, encompass a broad sweep of history, during which the notion of human rights has developed in fits and starts, and the consequences of not protecting those rights has been brought to the world’s attention in horrifying detail.
Unfortunately, despite the Universal Declaration, which is only a declaration and is not legally binding, there are still far too many instances of its principles being ignored, and it is by no means a flawless document. It is, for example, seen by many Islamic countries as being a statement of Western rather than Universal rights.
It should, therefore, be seen as simply one more stage on the long road towards universal human rights, and not the final statement.
© 2017 John Welford