The UN Charter and the Universal Declaration of Human Rights

1. The UN Charter, 1945

Signed at San Francisco on 26 June 1945 and in force on 24 October 1945, the Charter was the first treaty to make human rights a general concern of international law. The provisions:

• Preamble: the peoples of the United Nations determined “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.”
• Article 1(3): a purpose of the UN is international cooperation in solving economic, social, cultural and humanitarian problems and in promoting respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
• Article 13(1)(b): the General Assembly initiates studies and makes recommendations to assist in the realisation of human rights.
• Article 55: the UN shall promote higher standards of living, solutions of health and related problems, cultural and educational cooperation, and universal respect for and observance of human rights.
• Article 56: members pledge to take joint and separate action in cooperation with the UN to achieve the Article 55 purposes.
• Articles 62 and 68: ECOSOC may make recommendations on human rights and shall set up commissions for their promotion. The Commission on Human Rights (1946) was created under Article 68.
• Article 76(c): human rights as an objective of the trusteeship system.
• Article 2(7): the UN shall not intervene in matters essentially within domestic jurisdiction, the clause states long relied on against criticism.

Do these provisions bind? The Charter does not list the rights, and its language is of promotion and cooperation. The early view was that Articles 55 and 56 were not self-executing: the Supreme Court of California so held in Sei Fujii v. State (1952). The later view is that Article 56 is a legal pledge and that gross and systematic violations breach the Charter: in the Namibia Advisory Opinion (1971) the ICJ said that apartheid in South-West Africa was a flagrant violation of the purposes and principles of the Charter. Human rights are therefore no longer “essentially” domestic under Article 2(7).

Relevance to IP and environment. Article 55’s references to health, standards of living and cultural cooperation are the Charter basis for the work of the specialised agencies (WHO, FAO, UNESCO, WIPO) on access to medicines, food and knowledge (Unit V).

2. The Universal Declaration of Human Rights, 1948

Adopted by General Assembly Resolution 217 A (III) on 10 December 1948, with no votes against and eight abstentions (the Soviet bloc, South Africa and Saudi Arabia). It has a preamble and thirty articles: civil and political rights (Articles 3–21), economic, social and cultural rights (Articles 22–27), and the social and international order and limitations (Articles 28–30). Article 29(2) allows limitations determined by law for meeting the just requirements of morality, public order and the general welfare in a democratic society.

Legal status. It is a resolution, not a treaty. Three arguments give it legal force:

1. it is an authoritative interpretation of the Charter’s “human rights and fundamental freedoms”;
2. many of its provisions (prohibitions of torture, slavery and racial discrimination) have become customary international law; the US Court of Appeals in Filartiga v. Peña-Irala (1980) relied on it in holding torture contrary to the law of nations; and
3. the Proclamation of Teheran (1968) declared that it constitutes an obligation for the members of the international community.

Not every article is custom, and Article 27(2) is among the least likely to be.

In India. The Constituent Assembly drew on the draft Declaration, and the Supreme Court has used it to interpret Part III. In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, Sikri C.J. referred to it as a guide to the meaning of fundamental rights. In Chairman, Railway Board v. Chandrima Das, 2000 INSC 38, the Court relied on the UDHR in holding that a foreign national raped by railway employees was entitled to compensation under Article 21, which protects “persons” and not only citizens.

3. The articles that touch IP and environment

• Article 17: everyone has the right to own property alone or with others; no one shall be arbitrarily deprived of it. Some argue IP falls here; the ICESCR, notably, has no property article.
• Article 19: freedom to seek, receive and impart information and ideas through any media. Copyright limits this freedom, and the exceptions for quotation, news and education are the point of balance.
• Article 25(1): an adequate standard of living, including food, clothing, housing, medical care and necessary social services. The basis of the access-to-medicines and right-to-food arguments.
• Article 26: education, with elementary education free and compulsory. Textbook prices and copyright exceptions for education (as in the Delhi University photocopy case, Delhi High Court, 2016–17) engage this right.
• Article 27, quoted in full:
  1. “Everyone has 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.”
  2. “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.”

4. Article 27: drafting and meaning

Paragraph (1) was uncontroversial. Paragraph (2) was not. In the Commission on Human Rights it was dropped, with opponents (including the US and UK delegations) arguing that authors’ interests were already covered by the property article or were not a human right at all. It was restored in the General Assembly’s Third Committee, pressed mainly by French and Latin American delegates, for whom the droit d’auteur tradition saw the author’s personal link to the work as a matter of dignity. Johannes Morsink’s history of the drafting is the standard account.

Three points of interpretation:

1. The holder is the author, a human being, not the publisher, employer or corporation that usually owns the commercial right.
2. Moral and material interests: attribution and integrity on one side, a fair return on the other. Neither requires any particular term or scope of protection.
3. The two paragraphs must be read together. The right of everyone to share in scientific advancement limits the creator’s right; the creator’s right gives an incentive to produce the science everyone shares. Article 27 states the IP balance inside a single human rights article. The ICESCR repeats the structure in Article 15 (next note).

How this is examined

Likely long questions: “Discuss the human rights provisions of the UN Charter and their legal effect,” “Examine the legal status of the UDHR,” or “Is intellectual property a human right? Discuss with reference to Article 27 of the UDHR and Article 15 of the ICESCR.” Short notes: Article 27 UDHR; Articles 55 and 56 of the Charter; Chandrima Das. For the IP question, quote both paragraphs of Article 27, explain the drafting history and the author/owner distinction, and lead into the Covenant and General Comment 17.