International law, Sixth edition
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International Law MALCOLM N. SHAW
Yearbook of the ILC, 1949, p. 178. See also H. Kelsen, The Law of the United Nations, London,
1950, p. 29. 73 See D. Driscoll, ‘The Development of Human Rights in International Law’ in Laquer and Rubin, Human Rights Reader, pp. 41, 43. 278 i n t e r nat i o na l l aw distinctions, exclusions, restrictions and limitations, exclusively based on grounds of race, colour, descent or national or ethnic origin which con- stitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter. 74 It may be that this provision can only be understood in the light of the special, international status of that territory, but in the light of extensive practice since the 1940s in the general area of non-discrimination and human rights, the broader interpretation is to be preferred. The Charter does contain a domestic jurisdiction provision. Article 2(7) provides that: nothing contained in the present Charter shall authorise the United Na- tions to intervene in matters which are essentially within the domestic jurisdiction of any state but as noted later 75 this has over the years been flexibly interpreted, so that human rights issues are no longer recognised as being solely within the domestic jurisdiction of states. The elucidation, development and protection of human rights through the UN has proved to be a seminal event. A range of declarations and treaties has emerged, coupled with the establishment of a variety of ad- visory services and implementation and enforcement mechanisms. Large numbers of studies and reports of various kinds have appeared, while the whole process has been accompanied by extensive debate and considera- tion in a variety of UN organs and committees. Notwithstanding a certain degree of cynicism, it can be concluded that the acceptance of the cen- trality of human rights concerns within the international community has been due in no small measure to the unceasing consideration of human rights issues within the framework of the United Nations. The cornerstone of UN activity has been without doubt the Universal Declaration of Human Rights adopted by the UN General Assembly on 10 December 1948. 76 The Declaration was approved without a dissenting vote 74 ICJ Reports, 1971, pp. 16, 57; 49 ILR, pp. 3, 47. See also I. Brownlie, Principles of Public International Law, 6th edn, Oxford, 2003, pp. 546 ff.; E. Schwelb, ‘The International Court of Justice and the Human Rights Clauses of the Charter’, 66 AJIL, 1972, p. 337, and O. Schachter, ‘The Charter and the Constitution’, 4 Vanderbilt Law Review, 1951, p. 443. 75 See below, p. 647. 76 See e.g. Oppenheim’s International Law (eds. R. Y. Jennings and A. D. Watts), 9th edn, London, 1992, p. 1001; M. Whiteman, Digest of International Law, Washington, 1965, vol. V, p. 237; J. Humphrey, ‘The Universal Declaration on Human Rights’ in Ramcharan, Human Rights, p. 21; J. Kunz, ‘The United Nations Declaration of Human Rights’, 43 t h e p r o t e c t i o n o f h u m a n r i g h t s 279 (the Byelorussian SSR, Czechoslovakia, Poland, Ukrainian SSR, USSR, Yugoslavia and Saudi Arabia abstained). It was intended not as a legally binding document as such but, as its preamble proclaims, ‘a common standard of achievement for all peoples and nations’. Its thirty articles cover a wide range of rights, from liberty and security of the person (article 3), equality before the law (article 7), effective remedies (article 8), due process (articles 9 and 10), prohibitions on torture (article 5) and arbitrary interference with privacy (article 12) to rights protecting freedom of movement (article 13), asylum (article 14), expression (article 19), conscience and religion (article 18) and assembly (article 20). One should also note that included in the Declaration are social and economic rights such as the right to work and equal pay (article 23), the right to social security (article 25) and the right to education (article 26). Although clearly not a legally enforceable instrument as such, the ques- tion arises as to whether the Declaration has subsequently become binding either by way of custom 77 or general principles of law, or indeed by virtue of interpretation of the UN Charter itself by subsequent practice. 78 The Declaration has had a marked influence upon the constitutions of many states and upon the formulation of subsequent human rights treaties and resolutions. 79 It is also to be noted that in 1968, the Proclamation of Tehran at the conclusion of the UN-sponsored International Conference on Human Rights stressed that the Declaration constituted ‘an obligation for members of the international community’. 80 The Declaration has also AJIL, 1949, p. 316; E. Schwelb, ‘The Influence of the Universal Declaration of Human Rights on International and National Law’, PASIL, 1959, p. 217; A. Verdoodt, Naissance et Download 7.77 Mb. Do'stlaringiz bilan baham: |
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