Human Rights and International Order Notes | LL.M. Semester 1 | Mumbai University | munotes

MU's Q4 is the finding that shaped this module. "Protection agencies and mechanisms" reads like the treaty bodies and the rapporteurs. She examined the World Health Organization as a full question and the International Labour Organization as a note. A book built from the label alone would have had nothing to say to two of her seven questions.

Module IV asks two separate things. Topic 4 is the New International Economic Order, the claim the newly independent States pressed through the General Assembly in the 1970s, which MU's Q5 asked about by name. Topic 5 is Global Terrorism, and MU's Q6 asked why a universally accepted definition has never been agreed.

How this paper differs from Paper I

They overlap and they are not the same question, and a candidate who cannot say how is at risk of writing the wrong answer.

Where the two meet is worth naming: both papers end in the same place, which is that the standard is settled and the enforcement is not.

How to read this book

Every chapter has the same shape. A one-line answer, then the material, then what it does not mean, then a revision list, then four long-form questions with model answers.

The instruments are quoted, not paraphrased. Where a chapter gives an article, it gives the words, because an examiner can tell the difference.

And where a source could not be had, the book says so rather than inventing one. The Arab Charter has no authoritative English text, and that chapter says what can be sourced and stops.

Worked example

A question reads: "Human rights are declared internationally and enforced nationally. Discuss."

That is this paper's whole argument in one sentence, and the answer is the four modules in order.

Module I supplies the declaring: the Charter made human rights a purpose, the Declaration supplied the content the Charter lacked, and the Covenants made it binding on those who ratified.

Module II supplies the exception: the European, Inter-American and African systems are the only places where an international body can order a State to do something about an individual.

Module III supplies the machinery and its limits: reporting, review, communications, agencies and a criminal court with no police.

Module IV supplies the two problems the machinery has not solved: an economic order that was demanded and refused, and a phenomenon nobody has defined.

Close by saying which half is true. Declared internationally and enforced nationally is right about most of the world and wrong about Europe, the Americas and Africa, and the difference between them is the subject of this paper.

What it does NOT mean

It does not mean the international order is a government. It is a set of arrangements between sovereign States, and every chapter here runs into that fact.

It does not mean the order is new. [Abolition, and the First International Concern] shows the practice starting in the nineteenth century.

And it does not mean enforcement is absent. It is uneven, which is a different and more interesting claim.

Quick revision

• The title: human rights from Paper I, and international order meaning the institutions, treaties and procedures through which they are given effect between and above States.
• The textual anchor is article 28 of the Universal Declaration: everyone is entitled to a social and international order in which the rights can be fully realised.
• MU prints five words and numbers her topics 1, 3, 3, 4, 5, with no topic 2 and topic 3 printed twice. Carried exactly as she prints it.
• Four modules: the development of the concept into an order; the regional organisations; the protection agencies and mechanisms; and the New International Economic Order with Global Terrorism.
• Her 2025-26 paper fixed the scope, and Q4 on the World Health Organization is why the specialized agencies occupy seven chapters of Module III.

Test yourself

1. What does "international order" mean in this paper's title? The arrangement of institutions, treaties, organisations and procedures through which human rights are given effect between and above States, as distinct from the content of the rights themselves. The textual anchor is article 28 of the Universal Declaration, which provides that everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realised. That article is unusual in the instrument because every other one names something a person is entitled to, while article 28 names the arrangement of the world in which those entitlements can be met. This paper is that article worked out: who at the international level is supposed to act on a violation, under what instrument, through what procedure, and with what consequence when they do not. It follows that the paper's centre of gravity is machinery rather than concept, which is what distinguishes it from Paper I.

2. How does this paper differ from Concepts and Development of Human Rights? Paper I asks what a human right is: its ground in dignity, its classification into generations, its historical development, and the arguments about universality and relativism. This paper asks what exists to do something about one. The Declaration appears in both, but Paper I reads its text for content while this paper studies how it was made and what it made possible. India appears in both, but Paper I treats Part III as the constitutional answer to the concept while this paper treats the National Human Rights Commission as a protection mechanism to be assessed for effectiveness. The hard case differs too: Paper I ends on universality against cultural relativism, and this paper ends on enforcement against sovereignty. Where they meet is worth stating, because both arrive at the same conclusion by different routes: the standard is largely settled and the enforcement is not.

3. What did MU's own examination paper add that her syllabus did not? The scope. She prints five words for a four-credit paper, and numbers her topics 1, 3, 3, 4, 5, with no topic 2 and topic 3 printed twice on two different modules. The 2025-26 paper, subject code 76022, examined 2 March 2026, supplied what the labels could not. Q1 showed that "development of the concept" reaches the idea of a Bill of Rights and the difficulty of implementing one. Q2 and Q7(b) showed that "regional organisations" means the African and European systems specifically. Q3, Q4 and Q7(c) and (d) showed that "protection agencies and mechanisms" covers the National Human Rights Commission, the International Criminal Court and, decisively, the UN specialized agencies: the World Health Organization as a full question and the International Labour Organization as a note. Q5 and Q6 confirmed the two topics of Module IV. Without that paper, a book built from the label alone would have had nothing to say to two of her seven questions.

4. Answer the claim that human rights are declared internationally and enforced nationally. It is half true, and the half that is false is the most interesting part of this paper. It is true of most of the world: the Covenants create committees that receive reports and, where a State has separately accepted it, communications, and the outcome is views and recommendations rather than an enforceable order, so the only body that can compel anything is a domestic court. It is false of three regions. The European Court of Human Rights delivers binding judgments that the Committee of Ministers supervises; the Inter-American Court orders reparations that go well beyond compensation; and the African Court can make binding orders against States that have accepted its jurisdiction over individual applications. In those systems an international body can require a State to act in an individual case, which is exactly what the sceptical claim says cannot happen. The right conclusion is that enforcement is uneven rather than absent, and the difference between the regions is what Module II exists to explain.

Article 1 of the Charter, and why it matters here

The Purposes of the United Nations, in article 1, are four, and two of them build this order.

Article 1(2): to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.

Article 1(3): to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

Three things follow from 1(3) and they are the foundation of the whole paper.

Human rights became a purpose of an organisation, so action about them is within its competence, which is the answer to a State that says the subject is none of the Organization's business.

The obligation is one of co-operation, not of result, which is why the machinery is built out of reporting and review rather than out of orders.

And the four grounds are named: race, sex, language, religion. The Declaration's article 2 extends them three years later to ten grounds plus other status, and the difference between the two lists is a measure of how fast the order was moving.

Article 1(1) is worth noticing for what it does not say. The first Purpose is the maintenance of international peace and security, and human rights appear third. The order was built inside a peace organisation, and that is why the Security Council appears in [The Security Council as a Human Rights Actor] and why a human rights situation has to be characterised as a threat to the peace before the Council can act on it.

Three ways an order can fail, with a case of each

A standard without a procedure. The Universal Declaration between 1948 and 1976 was a complete statement of rights with no mechanism at all. Nothing in it was wrong; nobody could invoke it.

A procedure without a duty-bearer. A person harmed by a corporation, an armed group or a global market has no respondent under the Covenants, because they bind States. [What Is Still Missing from the International Order] takes this.

An institution without a procedure. The Commission on Human Rights spent its first two decades holding that it had no power to take any action in regard to any complaints concerning human rights. It existed, it met, and it could do nothing about a violation.

What distinguishes an international order from a legal system

Four differences, and every argument in this book runs into at least one.

No legislature. Standards are made by agreement, so a State not party is not bound by the treaty, and a State that objects consistently is not bound by the custom.

No compulsory jurisdiction. A court's authority over a State depends on that State's consent.

No executive. There is no police force, and the only body that can authorise coercion is the Security Council, where five States hold a veto.

And the addressees are also the authors. The States the order binds are the States that write, fund, staff and enforce it, which has no equivalent in a domestic legal system.

That last point is the honest frame for the whole paper. Everything achieved in this book was achieved by persuading the entity to be constrained to agree to the constraint, and everything not achieved is where that persuasion failed.

Worked example

A person is tortured in a State that has ratified the Covenant on Civil and Political Rights but not its first Optional Protocol, and which is not in any regional system.

Standard: present. Article 7 of the Covenant is absolute and non-derogable, and the prohibition binds the State by treaty and as custom.

Institution: present. The Human Rights Committee exists under article 28 and examines that State's periodic reports.

Procedure: absent for this person. Without the Optional Protocol no individual communication lies, so the victim has no route to the Committee. The State's own courts are the only forum.

Duty-bearer: present and unwilling. The State owes the obligation and is the entity that breached it.

Three of four elements, and the person has no remedy. That is the characteristic shape of a failure in this order, and it is why Module III is about procedures rather than about standards.

What it does NOT mean

It does not mean the order is a world government. It is an arrangement between sovereigns, and the arrangement is the subject.

It does not mean standards without procedures are worthless. The Declaration had none for eighteen years and produced two Covenants.

And it does not mean the four elements arrive together. They almost never do, and the history in this module is the story of them arriving separately.

Quick revision

• UDHR article 28: everyone is entitled to a social and international order in which the rights can be fully realized. The only article whose subject is the arrangement rather than a right, and it names no duty-bearer.
• Four elements of an order: standards, institutions, procedures, and a distribution of duties. Every failure in this book is one of the four missing.
• Charter article 1(3): international co-operation in promoting and encouraging respect for human rights without distinction as to race, sex, language, or religion. Three consequences: the subject is within the Organization's competence; the obligation is to co-operate, not to achieve; and the grounds are four, against the Declaration's ten plus other status.
• Article 1(1) puts peace and security first, which is why a human rights situation must be characterised as a threat to the peace before the Security Council can act.
• Four differences from a legal system: no legislature, no compulsory jurisdiction, no executive, and the addressees are the authors.

Test yourself

1. What are the four elements of an international order, and why learn them as a set? Standards, institutions, procedures and a distribution of duties. Standards are statements of what may not be done, agreed by those they bind: the Charter supplies the commitment in article 1(3), the Universal Declaration supplies the content, and the Covenants make it binding on parties. Institutions are bodies with a mandate, a budget and staff, and an institution lacking a mandate is a conference while one lacking a budget is a letterhead. Procedures are the routes by which somebody can invoke a standard against somebody else: reporting, review, communications, inquiry and, in three regions, litigation. And a distribution of duties means it is clear who owes the obligation, which in this framework is the State. They should be learned as a set because every failure in this paper is the absence of one of them, and naming which one is missing turns a vague complaint that the system does not work into a precise statement of what would fix it.

2. What does article 1(3) of the Charter establish, and what does it not? It establishes that one of the Purposes of the United Nations is to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion. Three consequences follow. Human rights became a purpose of an organisation, so action about them falls within its competence, which answers a State arguing that the subject is not the Organization's business. The obligation is one of co-operation and promotion rather than of result, which is why the machinery that grew from it consists of reporting, review and recommendation rather than orders. And the prohibited grounds are four, where the Declaration's article 2 lists ten plus the open phrase other status only three years later. What it does not establish is any right, any duty-bearer for a particular violation, or any procedure, and article 1(1) puts the maintenance of international peace and security first, which is why a human rights situation must be characterised as a threat to the peace before the Security Council can act on it.

3. Give three ways an order can fail, with an example of each. A standard without a procedure: between 1948 and 1976 the Universal Declaration was a complete statement of rights with no mechanism whatever, so nothing in it was wrong and nobody could invoke it. A procedure without a duty-bearer: a person harmed by a corporation, an armed group or the operation of a global market has no respondent under the Covenants, because those instruments bind States and nobody else, so the machinery exists and there is nobody to point it at. An institution without a procedure: the Commission on Human Rights, created under Charter article 68 in 1946, spent its first two decades on the footing that it had no power to take any action in regard to any complaints concerning human rights, so it existed, met annually, and could do nothing about a violation brought to it. Each example isolates a different missing element, which is why the fourfold analysis is more useful than a general assessment of effectiveness.

4. How does an international order differ from a domestic legal system? In four ways, and every argument in this book runs into at least one. There is no legislature: standards are made by agreement, so a State that has not ratified is not bound by the treaty and a State that has consistently objected is not bound by the custom. There is no compulsory jurisdiction: a court's authority over a State depends on that State's consent, which is why the acceptance clauses in regional instruments matter so much. There is no executive: no police force exists, and the only body that can authorise coercion is the Security Council, where five States hold a veto. And, most importantly, the addressees are also the authors: the States the order binds are the same States that draft, fund, staff and enforce it, which has no domestic equivalent. That last point is the honest frame for the whole paper, because everything achieved here was achieved by persuading the entity to be constrained to accept the constraint, and everything unachieved is where that persuasion failed.

The early modern account is where the international order actually begins, because it detaches natural law from theology. Grotius argued that the law of nature would have force even on the impossible supposition that there is no God, which made it available as a common standard between States that had just spent a century at war over religion.

That move is why this chapter is in a paper about international order. A standard that depends on a shared faith cannot bind States of different faiths. A standard derived from reason can, and the law between nations was built on it.

Two objections, and where they lead

The positivist objection. There is no law but enacted law; talk of rights before enactment is, in the phrase, nonsense upon stilts. The answer this book gives is historical rather than philosophical: the claims were made, they were conceded, and they were then enacted, which is the sequence every chapter in Module I traces.

The relativist objection. A standard above the ruler is a standard somebody has to state, and whoever states it is somebody in particular. That objection is real, and it is answered by the convergence above and by the drafting record in [Drafting the Universal Declaration], not by assertion.

From a standard above the ruler to an order between rulers

The step this module traces, in four moves.

One: the standard binds the ruler at home. Magna Carta in 1215, the Bill of Rights in 1689.

Two: the standard is said to bind all rulers. 1776 and 1789, where the claim stops being about Englishmen and becomes a claim about human beings.

Three: rulers agree with each other about how they will treat people. Abolition, the laws of war, the minorities treaties: the subject of [Abolition, and the First International Concern] and [The Laws of War, and the Individual as a Protected Person].

Four: an organisation is created to hold them to it. The League, and then the United Nations.

Move three is the one that makes an international order possible, because it is the first time States accept that how they treat people is a matter for other States. Everything in Modules II and III depends on it.

Worked example

A question asks: "Trace the development of the concept of human rights before the Charter of 1945."

Open with the proposition, not with a date: the development begins with the claim that a standard exists above the ruler, and every later stage is that claim being widened.

Give the convergence across traditions, and immediately give the limit: none of them supplied a right in the person and all of them tolerated slavery.

Give the natural law line through the classical, medieval and early modern accounts, and identify Grotius's move as the one that made a common standard between differently believing States possible.

Give the four moves: the ruler bound at home, the claim universalised, States agreeing with each other, and an organisation created.

Close on what was still missing in 1945, which is a list of rights and a way for a person to invoke one, and which is what [The Charter of the United Nations, and the Pledge] and [Drafting the Universal Declaration] supply.

What it does NOT mean

It does not mean the ancient traditions had human rights. They had a standard above the ruler, which is the first of two propositions and not the second.

It does not mean natural law is the only ground. [What a Bill of Rights Is] and the positivist material show a claim can be grounded in enactment alone.

And it does not mean the development was continuous. It was interrupted repeatedly, and the interruptions matter as much as the advances.

Quick revision

• The founding proposition: a standard exists above the ruler, which the ruler did not make. Without it a sovereign's treatment of its own people cannot be unlawful and there is nothing for an international order to be about.
• It is not yet a right in the person. A standard above the ruler says the ruler may be wrong; it does not give the subject a claim.
• Convergence across traditions: the Greek unwritten law, the Roman ius gentium, dharma, sharia, and the Stoic and Christian natural law. Every one of those societies held slaves.
• Grotius detached natural law from theology, so it could bind States of different faiths, which is why the law between nations could be built on it.
• Four moves to an order: the ruler bound at home; the claim universalised in 1776 and 1789; States agreeing with each other about how they treat people; and an organisation created to hold them to it.

Test yourself

1. Why does the development of the concept begin with a standard above the ruler? Because without that proposition there is nothing for an international order to be about. If law is simply what the sovereign commands, then a sovereign's treatment of its own population is by definition lawful, no external standard can be applied to it, and the question this paper asks cannot arise. The proposition is that a rule exists which the ruler is measured against and did not create, so that the ruler can be said to have done wrong without denying that they are the ruler. It appears independently in several traditions: the unwritten law of the Greek tragedians, the Roman ius gentium as the part of law common to all peoples, dharma as an order the Indian king enforces and is bound by, the sharia as a law the ruler administers and cannot alter, and the natural law of the Stoic and Christian writers. The honest qualification belongs in the same answer: none of those societies extended the standard to everyone, none gave the subject a claim against the ruler, and every one of them held slaves.

2. Why does Grotius matter to a paper about international order? Because he detached the standard from theology and thereby made it available between States that did not share a faith. His argument that the law of nature would have force even on the impossible supposition that there is no God is the move that converts natural law from a doctrine internal to one religious tradition into a common standard usable across the European States that had just spent a century at war over religion. That matters here for a specific reason: a standard resting on shared belief cannot bind States of different beliefs, so an international order built on it would extend no further than the belief. A standard derived from reason can be asserted between any States, and the law of nations was in fact built on it. The same structural point returns in 1948, when a proposal to found the Universal Declaration on a religious premise was rejected precisely so that the instrument would not rest on one tradition.

3. Set out the four moves from a standard above the ruler to an international order. First, the standard binds the ruler at home: Magna Carta in 1215 conceding that even the king acts against a free man only by lawful judgment or by the law of the land, and the Bill of Rights of 1689 making the rights of subjects a condition of holding the Crown. Second, the claim is universalised: the American Declaration of 1776 and the French Declaration of 1789 stop speaking of Englishmen or subjects and speak of human beings, so the standard is asserted for everyone rather than for a status. Third, rulers agree with each other about how they will treat people: the abolition treaties, the laws of war from 1864, and the minorities treaties after 1919, which is the decisive move because it is the first time States accept that how they treat people is a matter for other States. Fourth, an organisation is created to hold them to it, first the League and then the United Nations. Everything in the regional and machinery modules of this paper depends on the third move having been made.

4. How should the positivist and relativist objections be handled at this stage? Both should be stated fairly and answered from the history rather than from philosophy, because that is what this module is for. The positivist objection is that there is no law but enacted law, so a right asserted before enactment is not a right at all. The answer this book gives is a sequence rather than an argument: the claims were made politically, they were conceded, and they were then enacted in the Charter, the Declaration and the Covenants, so the objection describes the starting position accurately and does not describe the finishing one. The relativist objection is that a standard above the ruler has to be stated by somebody, and whoever states it is somebody in particular with a particular history. That objection is serious, and the answers to it are evidential: the convergence of independent traditions on the same structural proposition, and the drafting record of 1948, in which the officers were American, Lebanese and Chinese and a religious foundation was rejected so that no single tradition would be privileged.

It says the absence of a rule is not a licence. Whatever the treaty does not cover, something still governs, which is exactly what a natural law argument says and is here in a treaty preamble.

It puts "the laws of humanity" into binding text, forty-six years before the Charter and forty-nine before the Declaration.

And it survived, being repeated in the Geneva Conventions of 1949 and the Additional Protocols of 1977, so it is not a curiosity but a live provision.

Read the first limb, though. The usages established among civilized peoples tells you whose usages were being consulted, and [The Racial Equality Proposal of 1919] shows what that qualifier meant in practice.

Three doctrines that let the standard cross a border

Humanitarian intervention, in its nineteenth-century form. The claim that a State may intervene where another is treating a population with extreme cruelty. It was asserted, it was acted on, and it was invoked selectively enough that it has no settled legal status. It matters here because it is the first argument that a State's internal conduct can justify external action.

The law of war. [The Laws of War, and the Individual as a Protected Person] takes it: from 1864 the treatment of persons in conflict became the subject of treaties between States.

And the suppression of the slave trade. [Abolition, and the First International Concern] takes it: the first time a practice inside a State became a subject of international obligation because of what it did to people.

Only the second and third produced law. The first produced a debate that continues.

Why this chapter is in Module I and not in a history course

Because MU's topic is the DEVELOPMENT of the concept, and the development is a sequence of enlargements: from a standard above one ruler, to a law between rulers, to a law between rulers about how they treat people, to a law that treats the person as its subject.

The last enlargement is the one 1945 made, and it is worth stating the contrast precisely. In the classical law of nations, an individual was an object of the law and could be the subject of a claim made by their State. In the order this paper studies, an individual is a holder of rights, and in three regions may bring the claim themselves. That is the largest single change in the field's history.

Worked example

A State mistreats its own nationals in 1890 and again in 1990. What does the law of nations say in each year?

In 1890, nothing enforceable. There is no treaty on the subject, the treatment of nationals is within the reserved domain, the doctrine of diplomatic protection does not apply because the victims are the State's own nationals, and the only available argument is humanitarian intervention, which has no settled status and is applied selectively.

In 1990, a great deal. The State is a Member of the United Nations and has pledged under article 56 to take joint and separate action for the purposes of article 55. If it has ratified the Covenants, it owes defined obligations and reports periodically. The prohibitions of torture, slavery, prolonged arbitrary detention and systematic racial discrimination bind it as custom regardless of ratification. It may be examined in the Commission and after 2006 in the Council. And if it is in a regional system, an individual may be able to bring proceedings.

The comparison is the answer to any question about the development of the concept, because it shows exactly what the century built.

What it does NOT mean

It does not mean the law of nations was indifferent to persons. It protected envoys, prisoners and foreign nationals; what it did not do was protect a person against their own State.

It does not mean the Martens clause is a general human rights provision. It belongs to the law of armed conflict, and its reach outside that is contested.

And it does not mean diplomatic protection is obsolete. It survives, and it remains a claim of the State rather than of the person.

Quick revision

• The law of nations was a law between States, about States. The individual appeared only through diplomatic protection, which is the State's claim and not the person's, and the treatment of a State's own nationals was outside it.
• The writers: Vitoria, dominion of the peoples of the New World, and the justifications used against them; Grotius, natural law plus State practice, usable between differing faiths; Vattel, sovereign equality and non-intervention, which is both the enabling and the blocking principle.
• The Martens clause, Hague 1899: where no rule covers the case, populations and belligerents remain under the protection of the principles of the law of nations derived from the usages established among civilized peoples, from the laws of humanity, and the requirements of the public conscience. Note the first limb.
• Three border-crossing doctrines: humanitarian intervention, which produced debate; the law of war and the suppression of the slave trade, which produced law.
• The 1945 enlargement: the individual moves from being an object of the law to a holder of rights, and in three regions a claimant.

Test yourself

1. What was the position of the individual in the classical law of nations? An object rather than a subject. The law was between States and about States, and its content was war, peace, treaties, territory, diplomatic relations and the sea. An individual entered it only through their nationality, by the doctrine of diplomatic protection, under which an injury to a national abroad was treated as an injury to that national's State, which could espouse the claim as its own. Three consequences followed, and they are the position this whole paper describes the erosion of. The claim belonged to the State, so the State could settle it, waive it or decline to bring it, and the individual had no say. The protection ran only to nationals abroad, so a person injured at home by their own government had no route at all. And the treatment by a State of its own nationals was regarded as within the reserved domain, so it was not merely unenforceable but not a subject of the law. The single largest change made in 1945 and after is that the individual became a holder of rights, and in three regions a claimant in their own name.

2. Why does Vattel appear on both sides of this paper's argument? Because he supplied the doctrine of sovereign equality and the doctrine of non-intervention in the same body of work, and the international order for human rights needs the first and is obstructed by the second. Sovereign equality is what allows a small State to hold a large one to a treaty on equal terms, and it is written into article 2(1) of the Charter as the principle the Organization is based on. Non-intervention is what a State pleads when its treatment of its own population is raised, and it is written into article 2(7) of the same instrument. The tension is therefore not a later development or a drafting accident: it was present in the classical doctrine and was carried into the Charter deliberately, which is why the argument between article 56 and article 2(7) runs through this entire paper. Naming Vattel as the source of both is a better answer than treating sovereignty as an obstacle that human rights law later encountered.

3. What does the Martens clause do, and what is wrong with it? It provides that in cases not covered by the rules adopted, populations and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the requirements of the public conscience. Three things make it important. It states that the absence of a rule is not a licence, which is precisely what a natural law argument says and is here in the preamble of a treaty of 1899. It puts the phrase "the laws of humanity" into binding text forty-six years before the Charter. And it survived, being repeated in the Geneva Conventions of 1949 and in the Additional Protocols of 1977, so it is a live provision rather than a historical curiosity. What is wrong with it is its first limb: the usages established among civilized peoples tells you whose usages were consulted and whose were not, and the same standard of civilisation governed admission to the family of nations and was used to justify colonial administration.

4. Compare what the law says about a State mistreating its own nationals in 1890 and in 1990. In 1890, effectively nothing. There was no treaty on the subject, the treatment of nationals fell within the reserved domain, diplomatic protection was unavailable because the victims were the State's own nationals, and the only argument available was humanitarian intervention, which had no settled legal status and was invoked selectively enough to discredit it. In 1990 the position is transformed. The State is a Member of the United Nations and has pledged under article 56 to take joint and separate action in co-operation with the Organization for the purposes set out in article 55, which include universal respect for and observance of human rights. If it has ratified the Covenants it owes defined obligations and reports periodically to a treaty body. The prohibitions of genocide, slavery, torture, prolonged arbitrary detention and systematic racial discrimination bind it as customary law whether or not it has ratified anything. Its conduct may be raised and examined in the Commission on Human Rights. And if it belongs to the European, Inter-American or African system, an individual may be able to bring proceedings against it in their own name.

What the record also shows

The 1833 Act compensated the owners and not the enslaved, and the sum borrowed to pay them was very large. Whose property interest the legislature recognised is written into the statute.

The Berlin Conference of 1884 to 1885 condemned the slave trade and partitioned a continent, in the same process and among the same powers. That coexistence is not an incidental irony; it is the context in which the vocabulary of humanity was being used, and [The Racial Equality Proposal of 1919] shows the same powers voting thirty-four years later.

And abolition was not disinterested. Economic and strategic motives are documented alongside the moral campaign and the historiography is contested, so presenting it as a pure triumph of conscience overstates the record.

Include all three. A candidate who can hold the achievement and the qualification together is doing the work the subject requires, and an answer that gives only one half is weaker whichever half it gives.

Slavery in the order today

Article 4 of the Universal Declaration: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

The words "in all their forms" are what carry the prohibition forward to debt bondage, forced marriage, trafficking and forced labour, and the 1956 Supplementary Convention names them.

In India, article 23 of the Constitution prohibits traffic in human beings and begar and other similar forms of forced labour, and makes a contravention an offence.

And the prohibition is one of the few in this book with genuinely universal reach: it binds as custom, it is non-derogable, it is a peremptory norm from which no derogation by agreement is permitted, and it grounds universal jurisdiction over the trade.

Worked example

A question asks what the nineteenth century contributed to the international order for human rights, given that it produced no declaration of rights.

Refuse the premise first. A declaration is not the only form a contribution takes, and the century produced three things a declaration cannot: a subject-matter, a method and a machinery.

Then give abolition with the dates, and identify the conceptual move: the internal treatment of persons became a subject of treaty.

Then give the method and the machinery, the campaign repertoire and the mixed commissions.

Then give the qualifications without softening them: owners compensated, a continent partitioned by the same conference, and motives that were not purely moral.

Close with what 1945 did with it. The Charter generalised the move that abolition made about one practice, and the Declaration's article 4 is the direct descendant of the campaign.

What it does NOT mean

It does not mean the nineteenth century recognised human rights. It did not use the term and its practitioners would not have recognised the framework.

It does not mean the treaties ended slavery. They ended the legal status in most places and the practice survives, which is why the 1956 Convention was needed and why forced labour is still a treaty subject.

And it does not mean abolition is only a first generation matter. The campaign is the ancestor of the whole advocacy method, and [Non-Governmental Organizations as a Protection Mechanism] shows it operating in this paper's own machinery.

Quick revision

• Dates: 1807 trade abolished in Britain; 1815 Congress of Vienna, repugnant to the principles of humanity and universal morality; 1833 Empire abolition from 1834, compensating the owners; 1848 France; 1865 Thirteenth Amendment; 1885 Berlin Act; 1890 Brussels Act; 1926 Slavery Convention; 1956 Supplementary Convention.
• Four contributions: the subject-matter, making internal treatment a matter of treaty; the method, which is the modern advocacy repertoire; the machinery, naval patrols and mixed commissions, the first international tribunals in the field; and the vocabulary of an absolute.
• Three qualifications: owners compensated, not the enslaved; the Berlin Conference condemned the trade and partitioned Africa; and the motives were not purely moral.
• Today: UDHR article 4, slavery and the slave trade prohibited in all their forms; ICCPR article 8, non-derogable; article 23 of the Indian Constitution; and a peremptory norm grounding universal jurisdiction.

Test yourself

1. What is the single conceptual move abolition made, and why does this paper depend on it? That how a State treats people inside its own territory can be the subject of an international obligation. Before the abolition treaties, international law regulated relations between States: war, peace, treaties, territory, envoys and the sea. The treaties on the slave trade, from the bilateral treaties of search through the Berlin Act of 1885 to the Brussels Act of 1890, made a practice occurring inside a State's own borders and affecting its own inhabitants a matter about which States owed each other obligations. Every later development in this paper presupposes that move. The Charter's articles 55 and 56 generalise it from one practice to human rights as a whole. The narrowing of article 2(7) in Module III assumes it. Every regional system in Module II is built on it. And the treaty bodies exist to examine precisely the conduct that the classical law of nations regarded as beyond its reach. It was made about a single institution, a century before the Charter, and by States most of which were then colonial powers.

2. What method and machinery did abolition create? The method was the transnational campaign: petitions, consumer boycott, pamphlets, sustained parliamentary lobbying, survivor testimony and a network of corresponding societies across several countries. Read as a list, it is exactly the repertoire a human rights organisation uses today, and the descent is direct rather than analogical. The machinery was naval and judicial. Bilateral treaties of search allowed one State's ships to stop another's, and captured vessels were adjudicated by mixed commissions composed of judges from both States, which sat, received evidence, and condemned or released vessels by decisions binding on the States that created them. Those commissions are the first international tribunals in this field, and nothing comparable existed for any other subject at the time. Together the method and the machinery show that the nineteenth century's contribution was practical rather than declaratory: it produced no bill of rights and it produced the two things a bill of rights cannot supply.

3. What qualifications must an honest account include? Three, and they belong in the same answer as the achievement. The Act of 1833 abolished slavery throughout the British Empire and compensated the slave-owners rather than the enslaved, with a very large sum borrowed to do it, which records whose property interest the legislature recognised. The Berlin Conference of 1884 to 1885 undertook the suppression of the slave trade and produced the framework for the colonial partition of Africa, in the same process and among the same powers, so the vocabulary of humanity was being used by governments engaged in the opposite of humanity elsewhere. And abolition was not disinterested: economic and strategic motives are documented alongside the moral campaign and the historiography remains contested, so presenting it as a pure triumph of conscience overstates what the record supports. Including all three is not a concession that weakens the argument; an answer that can hold the achievement and the qualification together is doing the work the subject requires.

4. Why is the prohibition of slavery unusual among the rights in this book? Because it is genuinely absolute and genuinely universal in a way very few provisions are. It binds by treaty in every general instrument: article 4 of the Universal Declaration, which prohibits slavery and the slave trade in all their forms, article 8 of the Covenant on Civil and Political Rights, article 4 of the European Convention, article 6 of the American Convention and article 5 of the African Charter. It binds as customary international law regardless of ratification. It is non-derogable, appearing in the article 4(2) list of the Covenant, so no emergency reaches it. It is a peremptory norm, so no agreement to the contrary is valid, which is why a contract of self-enslavement is void rather than voidable and why the quality of the consent is irrelevant. And it grounds universal jurisdiction over the trade. The phrase in all their forms is what carries it forward from chattel slavery to debt bondage, serfdom, servile marriage and trafficking, which the Supplementary Convention of 1956 names expressly and which article 23 of the Indian Constitution prohibits domestically.

It produced an institution. The International Committee, founded in 1863, is older than every human rights body in this book, and it proved that a neutral non-State organisation could work inside a conflict by agreement of the parties. [The International Committee of the Red Cross] takes what it does now.

And it supplied the offences. The Hague Regulations of 1907 were treated at Nuremberg as evidence that war crimes were already defined in customary law, which is how individual criminal responsibility entered the field and how [The International Criminal Court: The Crimes] became possible.

Humanitarian law and human rights law

Three points about the relationship.

They apply together. The prevailing position is that human rights law continues to apply in armed conflict, with humanitarian law operating as the more specific body where both address the same question.

Humanitarian law binds armed groups by name. Common Article 3 of the 1949 Conventions applies in conflict not of an international character and binds each Party to the conflict, which includes a non-State party. It is the one route in this book by which the framework reaches such an actor directly, and [Terrorism, Armed Conflict and Humanitarian Law] uses it.

And humanitarian law has no derogation clause, because it was written for the emergency. The two bodies take opposite approaches to the same problem, which is worth saying in any answer that compares them.

The honest assessment

The century that produced these treaties was the century of colonial war, and the Martens clause's reference to the usages of civilized peoples tells you whose conduct was being regulated. The Hague Regulations were not applied to colonial campaigns.

And the treaties did not prevent 1914. They regulated a catastrophe they could not stop, which is the standing limitation of a body of law that accepts the activity it governs.

The achievement is nonetheless precise and datable: before 1864 the treatment of the wounded was a matter for each army's discretion, and after it a soldier had a status no commander could remove.

Worked example

An armed group in a non-international conflict takes prisoners, executes some after a hearing before its own officers, and shells a market.

Common Article 3 binds the group directly, because it applies to each Party to a conflict not of an international character, and it forbids violence to life and person, the passing of sentences without a regularly constituted court affording all the judicial guarantees recognised as indispensable, and outrages upon personal dignity.

The executions breach it twice: violence to life, and no regularly constituted court.

The shelling engages distinction and proportionality, and is unlawful if the market was not a military objective or if the incidental harm was excessive relative to the concrete and direct military advantage anticipated.

Human rights law applies alongside and has no forum in which this group can be made a respondent, so the operative claims are the humanitarian ones and the criminal liability of those who ordered the executions.

On these facts humanitarian law does what human rights law cannot, which is why the two are taught together and why [What Is Still Missing from the International Order] treats the non-State actor as the framework's largest gap.

What it does NOT mean

It does not mean humanitarian law is a branch of human rights law. Different origins, scope and enforcement, and conflating them is an error.

It does not mean war is lawful because it is regulated. Whether force may be used at all is a separate question governed by the Charter.

And it does not mean the nineteenth-century treaties protected everyone. They protected defined categories, in defined conflicts, between the States that ratified them.

Quick revision

• Dates: 1859 Solferino; 1863 Lieber Code and the founding of the International Committee; 1864 first Geneva Convention; 1868 St Petersburg; 1899 and 1907 The Hague; 1949 four Conventions with Common Article 3; 1977 Protocols.
• Two strands: Geneva protects persons, The Hague regulates means and methods; merged in 1977.
• Principles: distinction, bounded military necessity (the only legitimate object is to weaken the military forces of the enemy), humanity, proportionality, and the Martens clause.
• Four contributions: the individual as a protected subject; a State's conduct towards persons in its own power; an institution older than every human rights body; and the offences that became war crimes.
• Against human rights law: armed conflict only; binds non-State parties by name through Common Article 3; no derogation clause; and the two apply together, with humanitarian law the more specific.

Test yourself

1. What did the laws of war contribute that this paper depends on? Four things. They made the individual a protected subject of international law: from 1864 a wounded soldier, and later a prisoner and a civilian, held a status under a treaty between States, which is the enlargement from object to subject that the field's whole history turns on, and it happened here eighty years before the Universal Declaration. They bound a State's conduct towards persons in its own power, so a ratifying State could be told that its own soldiers had acted unlawfully, which applied the abolition move to a second subject. They produced an institution: the International Committee founded at Geneva in 1863 is older than every human rights body in this book and proved that a neutral non-State organisation could operate inside a conflict by agreement of the parties. And they supplied the offences, since the Hague Regulations of 1907 were treated at Nuremberg as evidence that war crimes were already defined in customary law, which is how individual criminal responsibility entered the field and made an international criminal court conceivable.

2. Set out the two strands and the principles. The law of Geneva protects persons and answers the question who must be spared: the wounded and sick from 1864, the shipwrecked, prisoners of war, and civilians. The law of The Hague, principally the Conventions and Regulations of 1899 and 1907, regulates means and methods and answers how fighting may be conducted, covering weapons, targets and ruses. The two merged in the Additional Protocols of 1977, so the distinction is now analytical rather than institutional. The principles are distinction, requiring parties at all times to distinguish combatants from civilians and military objectives from civilian objects and to direct operations only against the former; military necessity bounded by law, the St Petersburg Declaration stating that the only legitimate object States should endeavour to accomplish in war is to weaken the military forces of the enemy; humanity, forbidding suffering not required by necessity and hence weapons causing superfluous injury; proportionality, requiring that incidental civilian harm not be excessive in relation to the concrete and direct military advantage anticipated; and the Martens clause, which keeps populations under the protection of the principles of the law of nations where no specific rule applies.

3. How does humanitarian law differ from human rights law, and how do the two interact? Humanitarian law applies only in armed conflict; human rights law applies at all times. Humanitarian law binds all parties to a conflict including non-State armed groups, which human rights treaties cannot reach directly because a militia cannot accede to a treaty. Humanitarian law protects persons in defined categories, the wounded, the shipwrecked, prisoners and civilians, while human rights law protects everyone. Humanitarian law has no derogation clause because it was drafted for the emergency, whereas human rights law permits derogation on conditions and protects a non-derogable core, so the two take opposite approaches to the same problem. Its enforcement runs through grave breaches, universal jurisdiction and criminal courts, where human rights enforcement runs through reporting, complaints and domestic courts. On interaction, the prevailing position is that human rights law continues to apply during armed conflict and humanitarian law operates as the more specific body of rules where both speak to the same question, so an answer should identify which body supplies the operative rule on the facts rather than choosing one wholesale.

4. What is the honest assessment of the nineteenth-century achievement? That it is real, datable and compromised, and all three should be said. It is real and datable because before 1864 the treatment of the wounded was a matter for each army's discretion, and afterwards a soldier held a status that no commander could remove, which is a specific change in the position of an individual under international law rather than a general improvement in sentiment. It is compromised because the century that produced these treaties was the century of colonial war: the Martens clause speaks of the usages established among civilized peoples, which records whose conduct was being regulated and whose was not, and the Hague Regulations were not applied to colonial campaigns. And it is limited because the treaties did not prevent the catastrophe of 1914 to 1918; they regulated a war they could not stop, which is the standing limitation of any body of law that accepts the activity it governs and confines itself to the manner of its conduct.

Why it failed, and it is the examinable part

It was selective. The obligations were imposed on defeated and newly created States and on States seeking admission, and not on the great powers. Poland, Czechoslovakia, Romania, Yugoslavia, Greece, Austria, Hungary, Bulgaria and Turkey were bound; Britain, France, Italy and Germany were not. A rule applied to some States and not others is experienced as a penalty, and it was.

It was group-framed. The protection attached to membership of a minority, which required the minority to be identified and its members enumerated, and a hostile government could use exactly that identification against them.

It was exploitable from outside. A neighbouring State could take up the cause of its co-nationals abroad, and Germany did, using the position of German minorities in Poland and Czechoslovakia as an instrument of territorial policy. A protective regime became a lever.

And the petitioner had no standing. The petition was information for the Council, not a claim; the petitioner was not a party, could not appear, and was not told the outcome as of right.

What 1945 learned from it

Three design decisions, and each is a direct answer to one of the failures.

Universal application. The Declaration binds nobody selectively; the Charter's articles 55 and 56 apply to every Member. Nothing in the post-war framework is imposed on a class of States.

Individual framing. The Declaration speaks of everyone and no one, and contains no minorities article at all. That omission is deliberate and is the League's legacy.

And the question returned only later, in individual form. Article 27 of the Covenant on Civil and Political Rights gives the right to persons belonging to ethnic, religious or linguistic minorities, exercised in community with the other members of their group. The right is individual; its enjoyment is collective; and the group holds nothing.

Note what was lost as well as gained. The minorities treaties protected schools, language and institutions specifically, and article 27 is thinner. The system that replaced them was fairer in application and weaker in content.

Worked example

A question asks what the interwar period contributed to the international protection of human rights.

Open with the absence: the Covenant has no human rights clause, and article 23 states undertakings rather than rights.

Give the minorities system with its machinery: petition, Committee of Three, Council, Permanent Court. Name it as the first international petition procedure.

Give the four failures: selective, group-framed, exploitable, and no standing for the petitioner.

Draw the lesson: universality of application and individual framing were the deliberate choices of 1945, made in answer to exactly those failures.

Close on the cost: article 27 is thinner than what it replaced, so the trade was fairness for content.

What it does NOT mean

It does not mean the minorities system achieved nothing. Thousands of petitions were filed, some were resolved, and the Permanent Court gave opinions that still repay reading.

It does not mean group protection is wrong in principle. It means group protection imposed selectively is exploitable, which is a different claim.

And it does not mean the League was uninterested in persons. Article 23, the mandates and the health and labour work show otherwise; what it lacked was a general standard and a universal application.

Quick revision

• The Covenant of 1919 has no human rights clause. Article 22 creates the mandates as a sacred trust of civilisation; article 23 records undertakings on fair and humane conditions of labour, just treatment of native inhabitants, trafficking in women and children and disease.
• The minorities treaties were imposed on new and enlarged States and on States seeking admission. They guaranteed life and liberty without distinction, equality, use of language, court facilities, and the right to establish and control schools.
• The machinery is the first international petition procedure: petition, Committee of Three of the Council, the Council, and the Permanent Court of International Justice.
• Four failures: selective, applying to some States only; group-framed, so protection required identification; exploitable by a neighbouring State claiming co-nationals; and the petitioner had no standing.
• 1945's answers: universal application, individual framing, and no minorities article in the Declaration. The subject returned as article 27 of the Covenant, a right of persons belonging to minorities, exercised in community with others. Thinner than what it replaced.

Test yourself

1. What did the Covenant of the League contain on human rights? No general clause, which is the first and most important point. Two provisions nevertheless bear on the subject. Article 22 created the mandates system and described the well-being and development of peoples not yet able to stand by themselves as a sacred trust of civilisation, which placed the administration of certain territories under international supervision. Article 23 recorded undertakings by Members: to secure and maintain fair and humane conditions of labour for men, women and children; to secure just treatment of the native inhabitants of territories under their control; to entrust the League with the general supervision of agreements on the traffic in women and children; and to take steps in matters of international concern for the prevention and control of disease. Article 23 is a list of second and third generation subjects written in 1919, and it is addressed to States as undertakings rather than to persons as rights. Comparing it with articles 55 and 56 of the Charter shows precisely what 1945 changed, since the subjects are similar and the grammar is not.

2. Describe the minorities system and its machinery. The obligations were imposed by treaties, by special chapters in the peace treaties, and by unilateral declarations required as a condition of admission to the League, on the new and enlarged States of central and eastern Europe. They guaranteed life and liberty to all inhabitants without distinction of birth, nationality, language, race or religion; equality before the law and equal civil and political rights; the free use of a minority's language in private, in commerce, in religion, in the press and at public meetings; adequate facilities for using that language before the courts; and the right to establish, manage and control at their own expense charitable, religious and social institutions and schools and other educational establishments, with the right to use their own language and exercise their religion freely in them. The machinery is what matters for this paper: the guarantees were placed under the guarantee of the League, a member of a minority could petition, the Secretariat put the petition to a Committee of Three of the Council, the Council could act, and a dispute could be referred to the Permanent Court of International Justice. That is the first international procedure by which a person could complain about their own government.

3. Why did the system fail? Four reasons, and they are connected. It was selective: the obligations bound defeated and newly created States and States seeking admission, and not the great powers, so a rule applied to Poland, Czechoslovakia, Romania, Yugoslavia and others but not to Britain, France or Italy was experienced as a penalty rather than as a standard, and the bound States resented it accordingly. It was group-framed: protection attached to membership of a minority, which required the minority to be identified and enumerated, and a hostile government could use that identification against the people it identified. It was exploitable from outside: a neighbouring State could take up the cause of its co-nationals abroad, and Germany did precisely that with German minorities in Poland and Czechoslovakia, converting a protective regime into an instrument of territorial policy. And the petitioner had no standing: the petition was information for the Council rather than a claim, so the petitioner was not a party, could not appear and was not entitled to be told the outcome.

4. What did 1945 learn, and what did it lose? Three design decisions in the post-war framework answer the three structural failures directly. Universal application: the Charter's articles 55 and 56 bind every Member and the Universal Declaration is addressed to all, so no obligation is imposed on a class of States as a condition or a penalty. Individual framing: the Declaration speaks of everyone and no one, and contains no minorities article at all, which is a deliberate omission and the League's clearest legacy. And when the subject returned it returned in individual form, as article 27 of the Covenant on Civil and Political Rights, which gives persons belonging to ethnic, religious or linguistic minorities the right, in community with the other members of their group, to enjoy their own culture, profess and practise their own religion and use their own language: the right is individual, its enjoyment is collective, and the group holds nothing that a hostile government can identify and use. What was lost is content. The minorities treaties protected language use before the courts, and the right to establish and control schools, in terms; article 27 is thinner, so the trade was fairness of application for specificity of protection.

Its output before 1939. Conventions on hours of work, unemployment, maternity protection, night work for women, minimum age, workmen's compensation, freedom of association and forced labour in 1930, together with a reporting and inspection system.

By 1948 the second generation already had thirty years of binding international law and working supervisory machinery, and the first generation had none. Any account that presents economic and social rights as a late and untested addition has the history backwards, and this is the fact that proves it.

The one that survived

The League dissolved in 1946. The Organization became a specialized agency of the United Nations and continues.

Why, in one sentence: it had a constituency independent of governments, and the League did not.

Three consequences for this paper.

Its supervisory machinery is the oldest in the field, and [The International Labour Organization: Supervision and Complaints] takes it in detail.

It is a specialized agency under Charter article 57, which is the relationship MU's 2025-26 Q4 asks about for the World Health Organization and Q7(c) for this one.

And its Declaration of Philadelphia in 1944 states, four years before the Universal Declaration, that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.

That sentence is worth memorising. It is the strongest human rights statement made by any international body before 1945, and it was made by a labour organisation.

What the interwar period proves

That machinery can exist without a general standard. The minorities system and the mandates both had procedures and neither rested on a statement of rights.

That selectivity destroys a system, which [The League of Nations and the Minorities Treaties] established.

That supervision needs a constituency, which the Organization proves by surviving.

And that a system can be well designed and still fail if the political conditions collapse. None of these arrangements survived the 1930s in working order, and the reason was not their design.

Worked example

A question asks why the League's human rights machinery failed while the International Labour Organization's did not.

Distinguish the three things first: the minorities treaties, the mandates and the Organization are separate arrangements with separate designs.

The minorities system failed on selectivity and group framing, and was exploited by a State that was not bound by it.

The mandates system did not fail so much as reveal itself: it was supervision of colonial administration, and no mandate became independent under it, so the principle survived and the practice did not.

The Organization survived because of tripartism. Governments alone could not abandon it, employers and workers had standing in it, and its standards were negotiated with those bound by them.

Close on the transfer: the League dissolved in 1946 and the Organization became a specialized agency, so the only interwar body still working is the one whose constituency was not governments.

What it does NOT mean

It does not mean the mandates were a human rights system. They were colonial administration with a reporting duty, and saying so is more accurate and more useful.

It does not mean tripartism could be copied everywhere. There is no obvious equivalent constituency for torture or for fair trial.

And it does not mean the Organization's record is unblemished. Its early conventions on colonial territories and on forced labour contain exceptions that would not be acceptable now.

Quick revision

• Article 22 of the Covenant: peoples not yet able to stand by themselves entrusted to advanced nations, their well-being a sacred trust of civilisation. Classes A, B and C, the last administered as integral portions of the mandatory's territory.
• Machinery: annual reports to the Council, examined by a Permanent Mandates Commission, which received petitions. No mandate reached independence under the League.
• What survived: administration of a territory can be internationally supervised, and the administering power owes a duty to the inhabitants.
• The International Labour Organization, 1919, on the proposition that universal and lasting peace can be established only if it is based upon social justice. Tripartite: two government, one employer and one worker delegate, the last two voting independently.
• By 1948 the second generation had thirty years of binding conventions and working supervision, and the first generation had none.
• The Declaration of Philadelphia, 1944: all human beings, irrespective of race, creed or sex, have the right to pursue their material well-being and spiritual development in conditions of freedom and dignity, of economic security and equal opportunity.

Test yourself

1. What was the mandates system, and what did it establish? Article 22 of the Covenant provided that territories taken from the defeated powers and inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world should be entrusted to advanced nations, and that the well-being and development of such peoples formed a sacred trust of civilisation. There were three classes: A, former Ottoman territories provisionally recognised as independent subject to administrative advice; B, central African territories where the mandatory administered under conditions guaranteeing freedom of conscience and religion and prohibiting abuses such as the slave trade and the arms and liquor traffics; and C, South West Africa and certain Pacific islands, administered as integral portions of the mandatory's own territory. Each mandatory reported annually to the Council, and a Permanent Mandates Commission of experts examined the reports, questioned representatives and received petitions from inhabitants. In substance it was colonial administration with a reporting duty, and no mandate achieved independence during the League's existence. What it established nonetheless was the principle that the administration of a territory can be subject to international supervision and that the administering power owes a duty to the inhabitants, which carried into the Charter and, through it, into decolonisation.

2. Why did the International Labour Organization survive when the League did not? Because its structure gave it a constituency that does not depend on governments. It is tripartite: each member State's delegation to the International Labour Conference contains two government delegates, one employer delegate and one worker delegate, and the employer and worker delegates vote independently of their government and of each other. Two consequences follow. A government cannot quietly abandon the Organization, because two other benches with independent standing would object. And its standards are negotiated with the people who must live under them rather than only with the States that will be bound, which gives its conventions a practical purchase that a purely intergovernmental instrument lacks. When the League dissolved in 1946 the Organization became a specialized agency of the United Nations under Charter article 57 and continued, so it is the only interwar body in this book still working, and the reason is structural rather than accidental.

3. Why does the Organization's pre-1939 record matter for the classification of rights? Because it reverses the usual account. Before 1939 the Organization had adopted conventions on hours of work, unemployment, maternity protection, night work for women, minimum age, workmen's compensation, freedom of association and forced labour, and had built a reporting and inspection system to supervise them. By the time the Universal Declaration was drafted, therefore, the second generation of rights already possessed nearly thirty years of binding international law and functioning supervisory machinery, while the first generation possessed neither: there was no treaty on torture, on fair trial or on arbitrary detention, and no body to examine any State's conduct on those subjects. Any account presenting economic and social rights as a late, untested or merely aspirational addition to the framework therefore has the history exactly backwards, and citing the Organization's pre-1948 record is the shortest way to establish it.

4. What does the Declaration of Philadelphia contribute? It is the strongest human rights statement made by any international body before 1945, and it was made in 1944 by a labour organisation. Adopted by the General Conference at its twenty-sixth session at Philadelphia on 10 May 1944 and later annexed to the Constitution, it affirms that labour is not a commodity, that freedom of expression and of association are essential to sustained progress, that poverty anywhere constitutes a danger to prosperity everywhere, and, most importantly for this paper, that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity. That sentence precedes the Universal Declaration by four years and precedes the Charter by a year, it is universal in terms, and it joins material and spiritual development in a single formulation. It also states that the attainment of the conditions in which this shall be possible must constitute the central aim of national and international policy, which is a statement about the international order in the sense this paper uses.

The line from 1919 to 1965

Read the 1948 entry carefully. Article 2's first sentence widens the grounds from four to ten and adds an open phrase. Its second sentence says no distinction shall be made on the basis of the political, jurisdictional or international status of the territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. In 1948 that reached most of the world's population, and it is the sentence that answers 1919 most directly.

How to use it in an answer

It is the strongest single fact available for two different questions.

On the development of the concept, it marks the moment the interwar order refused a standard and shows what the post-war order was correcting.

On the charge that the framework is a Western imposition, it is the fact a candidate should concede before answering, because conceding it makes the rest of the answer credible. The framework's authorship in 1948 was plural; its exclusions in 1919 were not; and both are true.

What it does not support is the claim that the framework is therefore illegitimate. The States excluded in 1919 pressed the successor framework hard from 1945 onwards, wrote the Racial Discrimination Convention, and ratified in large numbers, which is not how an illegitimate order is treated by those it excluded.

Worked example

A State argues that international human rights law reflects the values of the powers that wrote it and cannot bind others.

Concede 1919 immediately and precisely. A preambular statement of the equality of nations and the just treatment of their nationals obtained a majority and was ruled not carried, with a unanimity requirement applied to a proposal that had won a vote.

Then give what changed. Charter article 1(3) contains the clause 1919 refused. Declaration article 2 widens it and extends it to non-self-governing territories. The first core treaty of the post-war framework, in 1965, is on racial discrimination.

Then give the authorship. The Declaration's rapporteur was Lebanese, its vice-chair Chinese, and the amendment changing article 1 to "all human beings" came from India.

Then give the conduct. The States excluded in 1919 pressed for, drafted and ratified the successor instruments, which is evidence about how they regarded them.

Close on the distinction that does the work: 1919 is a fact about who decided, and it is not evidence about whose values the resulting text expresses. Conflating the two is the commonest error on this topic.

What it does NOT mean

It does not mean the proposal was radical. It was a preambular statement of principle, and that is what makes the refusal significant.

It does not mean the opposition was uniform. It came from several delegations for several reasons, and the domestic politics behind each is documented.

And it does not mean the League was uniquely bad. It means the interwar order refused a standard that the post-war order adopted, which is exactly the kind of change the development of a concept consists of.

Quick revision

• 1919, Paris Peace Conference: Japan proposes an endorsement of the principle of equality of nations and just treatment of their nationals, for the preamble of the Covenant.
• It obtains a majority of the votes cast and the chair declares it not carried, on the ground that a matter of such importance required unanimity.
• Four consequences: it dates the exclusion; it explains why the Covenant has no human rights clause; it is the direct ancestor of Charter article 1(3)'s "without distinction as to race, sex, language, or religion"; and it explains why the first core treaty, in 1965, was on racial discrimination.
• The line: 1919 refused, 1945 article 1(3), 1948 article 2 with ten grounds, other status and the territory sentence, 1960 decolonisation, 1963 Declaration, 1965 Convention, 1993 Vienna by consensus.
• The distinction to close on: 1919 is evidence about who decided, not about whose values the text expresses.

Test yourself

1. What exactly was proposed in 1919, and what happened to it? The Japanese delegation to the Paris Peace Conference proposed, in the commission drafting the Covenant of the League of Nations, an amendment on racial equality. In its final and most modest form it sought an endorsement of the principle of the equality of nations and the just treatment of their nationals, to be placed in the preamble rather than in an operative article: not a right held by individuals, not a prohibition on discrimination, not a procedure, but a statement of principle. A majority of those voting in the commission supported it. The chairman ruled that a matter of such importance required unanimous support and that the amendment was accordingly not carried. The opposition was not confined to one delegation: it included the British Empire delegation, under pressure from dominions whose immigration policies were expressly racial, and the position of the United States delegation reflected domestic politics in which such a clause would have been unusable. That a unanimity requirement was applied to defeat a proposal which had won a vote is what shows the question was not procedural.

2. Why does this episode matter to a paper about international order? In four ways. It dates the exclusion: critics say the order was built by and for a small group of States, the usual answer is the plural drafting record of 1948, and that answer has to concede 1919, which is documented and is not plural. It explains the Covenant's contents: an instrument that could not carry a preambular statement about race was never going to contain a general human rights clause, which is why the League protected named minorities in named States instead. It is the direct ancestor of Charter article 1(3), which makes it a Purpose of the United Nations to promote respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, so the clause refused in 1919 appears in the operative text of the successor organisation twenty-six years later. And it explains the sequence of the post-war framework, in which the first core treaty was not on torture or fair trial but the Convention on the Elimination of All Forms of Racial Discrimination in 1965, a year before the Covenants.

3. Trace the line from 1919 to 1965. In 1919 the proposal obtains a majority and is declared not carried. In 1945 Charter article 1(3) makes international co-operation in promoting and encouraging respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion, a Purpose of the Organization. In 1948 article 2 of the Universal Declaration widens the grounds from four to ten and adds the open phrase other status, and its second sentence provides that no distinction shall be made on the basis of the political, jurisdictional or international status of the territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty, which in 1948 reached most of the world's population. In 1960 the Declaration on the Granting of Independence to Colonial Countries and Peoples declares that subjection to alien domination is a denial of fundamental human rights. In 1963 the General Assembly adopts a Declaration on the Elimination of All Forms of Racial Discrimination and in 1965 the Convention, in force from 1969. And in 1993 Vienna restates universality by consensus with 171 States participating.

4. How should the episode be used against the claim that the framework is a Western imposition? By conceding it first and precisely, because conceding a documented fact is what makes the rest of the answer credible. Then by giving what changed: the clause refused in 1919 is in Charter article 1(3); the Declaration's article 2 widens it and extends it expressly to trust and non-self-governing territories; and the first core treaty of the post-war framework was on racial discrimination. Then by giving the authorship of 1948: an American chair, a Lebanese rapporteur, a Chinese vice-chair whose intervention kept the text free of any single philosophical foundation, and the Indian amendment that changed article 1 from all men to all human beings. Then by giving the conduct of the excluded States themselves, who pressed for, drafted and ratified the successor instruments in large numbers, which is not how an illegitimate order is treated by those it excluded. The distinction to close on is that 1919 is evidence about who decided and not about whose values the resulting text expresses, and conflating those two is the commonest error on this topic.

Article 56 supplies the State's obligation, and it is a pledge to take joint and separate action. Separate is the word that matters: a Member owes something acting alone.

The interpretive question is whether that creates a legal obligation to respect human rights or only a duty to co-operate in promoting them. The stronger view, and the one that prevailed in practice, is that a Member cannot pledge to promote universal observance while systematically denying it at home, and the General Assembly proceeded on that footing from its earliest sessions.

The weakness is real and must be stated. No right is defined, no obligation specified, no remedy created, and the pledge is to take action rather than to achieve a result.

A binding obligation with no content is exactly what made a declaration necessary, and it is the best short answer to the question why the Universal Declaration exists.

Article 2, which cuts the other way

2(1): the Organization is based on the principle of the sovereign equality of all its Members.

2(7): nothing in the Charter authorises the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state, and the principle shall not prejudice the application of enforcement measures under Chapter VII.

So the Charter contains the obligation and the objection. [Sovereignty, Domestic Jurisdiction and the Reach of the Order] takes the argument between them, which is the argument of the whole paper.

Article 68: the commission

The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may be required.

The only place in the Charter that names an institution for human rights, and it is mandatory. The Council shall. The Commission on Human Rights was established in 1946, drafted the Declaration and both Covenants, and was replaced by the Human Rights Council in 2006.

The Charter as an instrument of the order

Three of four, and the missing one is procedures, which is what Module III is about and what took from 1946 to 1976 to build.

Worked example

A Member State's law excludes a racial group from public employment. Another Member raises it in the General Assembly, and the first objects that the matter is within its domestic jurisdiction.

Article 1(3) makes promoting respect for human rights without distinction as to race a Purpose, so discussion is within the Organization's competence.

Article 55(c) commits the Organization to promoting universal respect for and observance of those rights.

Article 56 binds the objector itself, by its own pledge to take joint and separate action for those purposes, so the subject cannot be one it has reserved entirely to itself.

Article 2(7) forbids intervention in matters essentially within domestic jurisdiction, and discussion is not intervention while a matter governed by a pledge is not essentially domestic.

The structure of the answer: the Charter creates both the obligation and the objection, and the objection loses because a State cannot pledge and then say the subject of the pledge is nobody else's concern.

What it does NOT mean

It does not mean the Charter is a bill of rights. It is a constitutive instrument that made human rights a purpose.

It does not mean article 56 is enforceable by an individual. It binds Members towards the Organization, not towards persons.

And it does not mean the sovereignty objection was defeated in 1945. It was written into the same document, and the argument has run ever since.

Quick revision

• Signed 26 June 1945, in force 24 October 1945. Preamble: we the peoples, reaffirm faith in fundamental human rights, the dignity and worth of the human person.
• Article 1(2) self-determination; article 1(3) international co-operation in promoting and encouraging respect for human rights without distinction as to race, sex, language or religion.
• Article 55: the Organization shall promote higher standards of living and full employment, solutions of economic, social and health problems, and universal respect for, and observance of, human rights.
• Article 56: all Members pledge themselves to take joint and separate action for those purposes. Separate is the operative word.
• Article 2(1) sovereign equality and 2(7) domestic jurisdiction sit in the same instrument, with the Chapter VII proviso.
• Article 68: the Council shall set up a commission for the promotion of human rights. The Commission followed in 1946, drafted the Declaration and the Covenants, and was replaced in 2006.
• A binding obligation with no defined content is why the Declaration was drafted.

Test yourself

1. What is the relationship between articles 55 and 56, and why is it argued over? Article 55 addresses the Organization: with a view to creating conditions of stability and well-being necessary for peaceful and friendly relations, the United Nations shall promote higher standards of living and full employment, solutions of international economic, social, health and related problems and international cultural and educational co-operation, and universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. It says what the Organization shall promote and imposes nothing on a State. Article 56 supplies the State's obligation: all Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of those purposes. The argument is whether that creates a legal obligation to respect human rights or only a duty to co-operate in promoting them. The stronger view is that a Member cannot pledge to promote universal observance while systematically denying it at home, and the General Assembly proceeded on that footing from its earliest sessions. The word separate supports it, because separate action is something a State owes when acting alone.

2. Why did a binding Charter make a non-binding Declaration necessary? Because the obligation had no content. Articles 1(3), 55 and 56 commit the Organization and its Members to promoting and observing human rights and fundamental freedoms, and the Charter defines no right, specifies no standard, creates no procedure and supplies no remedy. A State asked what precisely it had pledged could answer, accurately, that nobody had said. The Universal Declaration was drafted to fill exactly that gap, and it was drafted by the Commission on Human Rights that article 68 required the Economic and Social Council to establish and which was created in 1946. The sequence is therefore the opposite of what students often assume: the binding instrument came first and was empty, the non-binding instrument came second and was full, and the Covenants of 1966 were the attempt to make the second binding as well. Stating the sequence that way answers, in one move, both the question why the Declaration exists and the question why it was not a treaty.

3. How does the Charter answer the sovereignty objection it also contains? By its own terms, in four steps. Article 2(7) provides that nothing in the Charter authorises the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state, with a proviso preserving enforcement measures under Chapter VII, so the objection is in the instrument rather than outside it. Step one: article 1(3) makes promoting respect for human rights without distinction as to race, sex, language or religion a Purpose of the Organization, so the subject falls within its competence and may be discussed. Step two: article 55(c) commits the Organization to promoting universal respect for and observance of those rights. Step three: article 56 binds the objecting State itself by its own pledge to take joint and separate action for those purposes, so it has already accepted that the subject is a common one. Step four: article 2(7) forbids intervention, which discussion and recommendation are not, and reaches only matters essentially within domestic jurisdiction, which a matter covered by the State's own pledge is not.

4. Assess the Charter against the four elements of an order. It supplies three of the four. Standards: it supplies a commitment and no content, since human rights become a Purpose in article 1(3) and a subject of promotion in article 55 without a single right being defined. Institutions: it creates the principal organs and, in article 68, requires the Economic and Social Council to set up commissions for the promotion of human rights, which is the only place in the Charter where an institution for this subject is named and where the requirement is mandatory. Duties: article 56 places the obligation on every Member by its own pledge, so the duty-bearer is identified and universal. What it does not supply is procedures: there is no complaint, no petition, no report and no forum in the Charter, and building them took from 1946 to 1976 and is the subject of Module III. That is why the Charter is properly described as the foundation of the order rather than as the order itself.

The Economic and Social Council: articles 62, 63 and 68

Article 62. The Council may make or initiate studies and reports on international economic, social, cultural, educational, health and related matters and may make recommendations on any such matters to the Assembly, the Members and the specialized agencies. It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. It may prepare draft conventions, and may call international conferences.

Article 63. The Council may enter into agreements with the specialized agencies defining the terms on which they are brought into relationship with the United Nations, subject to approval by the Assembly, and may co-ordinate their activities through consultation and recommendation.

Article 63 is why Module III has seven chapters on the specialized agencies. The relationship between the World Health Organization or the International Labour Organization and the United Nations is an agreement made under this article, and MU's 2025-26 Q4 asks about exactly that relationship.

Article 68, from [The Charter of the United Nations, and the Pledge]: the Council shall set up commissions for the promotion of human rights.

Note the difference in verb across the three. Article 62 says may make recommendations. Article 63 says may enter into agreements. Article 68 says shall set up commissions. The only mandatory human rights instruction in the Charter is to create a body.

The others, in one line each

The Security Council may act coercively, and only on a determination under article 39 that there is a threat to the peace, breach of the peace or act of aggression. [The Security Council as a Human Rights Actor] takes what follows.

The International Court of Justice decides disputes between States that have consented, and gives advisory opinions. [The International Court of Justice and Human Rights] takes it.

The Trusteeship Council supervised trust territories and suspended operation in 1994, its work complete.

The Secretariat services all of them, and the High Commissioner's Office is part of it, which is why [The Office of the High Commissioner for Human Rights] is a chapter about what a Secretariat can do.

What the machinery could and could not do in 1946

Set the powers against a single violation and the gap is visible.

Discuss it: yes, article 10.

Study it and recommend: yes, articles 13 and 62.

Set a standard about it: yes, article 13(1)(b), and that is what happened first.

Create a body to look at it: yes, article 68, and that happened in 1946.

Receive a complaint from the victim: nothing in the Charter provides for it.

Decide whether a violation occurred: nothing.

Order a remedy: nothing, unless the Security Council characterises the situation under article 39.

So the Charter's machinery is deliberative, and the whole of Module III is the story of procedures being added to it by treaty, by resolution and by practice, over thirty years.

Worked example

A question asks what powers the Charter gave the United Nations to protect human rights.

Begin with article 7 and the distinction it implies: six principal organs, and every human rights body in the system is a subsidiary organ, a treaty body or part of the Secretariat.

Give the Assembly: article 10's power to discuss anything and recommend; article 13(1)(b)'s power to initiate studies and make recommendations assisting in the realization of human rights, under which every instrument in this book was adopted; and article 14's power over situations resulting from a violation of the Purposes.

Give the Council: article 62's power to make studies, recommendations and draft conventions and to call conferences; article 63's agreements with the specialized agencies; and article 68's mandatory commission.

Give the limits: article 12's bar while the Security Council is seised, and the absence of any power to receive a complaint, find a violation or order a remedy.

Close on the consequence: a deliberative machinery with a mandatory commission produced a declaration first and procedures much later, which is the sequence Module III describes.

What it does NOT mean

It does not mean the Charter organs are powerless. Standard-setting under article 13(1)(b) produced the entire body of law this paper studies.

It does not mean the Assembly's recommendations have no legal effect. [What Kind of Instrument the Declaration Is] shows how a recommendation becomes binding by other routes.

And it does not mean the list of organs is closed. Subsidiary organs may be established under article 7(2), and the Human Rights Council is one.

Quick revision

• Article 7: six principal organs. Every human rights body in this book is a subsidiary organ, a treaty body, or part of the Secretariat.
• Article 10: the Assembly may discuss any question within the scope of the Charter and make recommendations. Widest competence, narrowest power.
• Article 13(1)(b): initiate studies and make recommendations assisting in the realization of human rights and fundamental freedoms for all. Every instrument in this book was adopted under it.
• Article 14: recommend measures for the peaceful adjustment of any situation, including situations resulting from a violation of the Purposes and Principles.
• Article 12: no Assembly recommendation while the Security Council is exercising its functions on the matter, unless the Council requests it.
• Article 62: studies, reports, recommendations for promoting respect for and observance of human rights, draft conventions and conferences. Article 63: agreements bringing the specialized agencies into relationship. Article 68: shall set up commissions.
• What is absent: any power to receive a complaint, find a violation, or order a remedy.

Test yourself

1. Why does article 7 matter for understanding the human rights machinery? Because it establishes that none of the bodies this paper is about is a principal organ. The principal organs are the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the Secretariat, and article 7(2) allows subsidiary organs to be established as needed. Every human rights body in this book falls into one of three other categories: a subsidiary organ, like the Commission on Human Rights created under article 68 and the Human Rights Council that replaced it as a subsidiary organ of the General Assembly; a treaty body, like the Human Rights Committee, which exists because its own treaty created it and binds only the parties to that treaty; or part of the Secretariat, like the Office of the High Commissioner. That classification explains most of what each body can and cannot do, because a subsidiary organ has the powers its parent could delegate, a treaty body has the powers its treaty gives it over the States that ratified, and a Secretariat unit has no decisional power at all.

2. What are the General Assembly's powers, and which one built this subject? Article 10 gives it the widest competence and the narrowest power: it may discuss any questions or matters within the scope of the Charter and make recommendations to Members, to the Security Council or to both. Article 11 covers the general principles of co-operation in the maintenance of peace and security. Article 12 bars it from making a recommendation on a dispute or situation while the Security Council is exercising its functions in respect of it, unless the Council so requests. Article 14 allows it to recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations, including situations resulting from a violation of the provisions of the Charter setting forth the Purposes and Principles, and that closing clause is a textual answer to a domestic jurisdiction objection. The provision that built the subject is article 13(1)(b), under which the 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. Every instrument in this book was adopted under it.

3. What does the Economic and Social Council contribute, and why does article 63 matter so much here? Article 62 gives it power to make or initiate studies and reports on international economic, social, cultural, educational, health and related matters, to make recommendations on such matters to the Assembly, the Members and the specialized agencies, to make recommendations for the purpose of promoting respect for and observance of human rights and fundamental freedoms for all, to prepare draft conventions and to call international conferences. Article 68 requires it to set up commissions in economic and social fields and for the promotion of human rights, and is the only mandatory human rights instruction in the Charter. Article 63 matters most for this paper because it empowers the Council to enter into agreements with the specialized agencies defining the terms on which they are brought into relationship with the United Nations, subject to approval by the General Assembly, and to co-ordinate their activities through consultation and recommendation. The relationship between the United Nations and the World Health Organization or the International Labour Organization is an agreement under that article, and MU's 2025-26 Q4 asks about precisely that relationship.

4. What could the Charter machinery not do in 1946? Three things, and they are the three that matter to a victim. It could not receive a complaint: nothing in the Charter provides any route by which a person alleging a violation can bring it to any organ, and the Commission created under article 68 took the position for its first two decades that it had no power to act on complaints. It could not find that a violation had occurred: no organ is given a power to determine a dispute about human rights, the International Court's jurisdiction depending on State consent and running between States. And it could not order a remedy, unless the Security Council first determined under article 39 that the situation was a threat to the peace, a breach of the peace or an act of aggression, which is a characterisation about international peace rather than about the rights of the persons affected. What the Charter gave was a deliberative machinery with a standard-setting power and a mandatory commission, which is why a declaration came first and procedures took thirty years.

Whether God should be mentioned

Brazil proposed that article 1 refer to human beings as created in the image of God. Peng Chun Chang and others opposed it, because a religious foundation would exclude those who did not share it. It was not adopted, and "endowed with reason and conscience" was the compromise.

Economic and social rights

Pressed by the Latin American States and by the socialist bloc; resisted by several Western States as being of a different kind.

They went in, as articles 22 to 27, in one instrument with the civil and political rights. [Why There Are Two Covenants] shows the resistance succeeding eighteen years later.

Whether it should bind

Some delegates wanted a treaty at once. The decision was to proceed in three stages: a declaration, then a convention, then measures of implementation. Only the first was achieved in 1948, and the second took until 1966.

The abstentions, which are the evidence

Eight abstained, and why each did is the fact that decides the universality argument.

The Soviet Union and five other socialist States, on the grounds that the Declaration did not go far enough on economic and social rights, said nothing about fascism, and intruded on sovereignty.

South Africa, because the equality and non-discrimination provisions were inconsistent with its racial policy.

Saudi Arabia, principally over article 18's freedom to change religion and article 16's provisions on marriage.

No State abstained on the ground that the rights were culturally alien in general. The objections were specific, and two of the three positions were that the Declaration did too little or that it reached a policy the objector could not defend openly. [Universality, and What Vienna Settled] uses this.

What was left out

A right of petition, proposed and dropped, so the Declaration created no remedy and no forum.

A minorities article, deliberately omitted for the reasons [The League of Nations and the Minorities Treaties] gave. The subject returned as article 27 of the Covenant.

And any reference to independence for colonial peoples, though article 2's second sentence extends the rights to persons in trust and non-self-governing territories, which was itself contested by the administering powers.

Worked example

A question asserts that the Declaration is a Western document imposed on the rest of the world.

Composition: officers American, Lebanese and Chinese; first outline Canadian; architecture French; the amendment changing article 1 Indian; the economic and social content largely Latin American, with twenty of the fifty-eight Members from that region and a regional declaration adopted at Bogotá months earlier.

Foundations: a religious grounding was proposed and rejected precisely so that the text would not rest on one tradition.

The vote: forty-eight for, none against; the eight abstentions were the socialist States for going too little, South Africa over racial equality, and Saudi Arabia over two specific articles.

Then concede what is true: most of Africa and much of Asia was under colonial rule and unrepresented, which is a real limitation about who was absent and not about whose values the text expresses.

The strongest version of the answer is the honest one, because the drafting record supports the framework better than a defensive account of it does.

What it does NOT mean

It does not mean the drafting was consensual. It was contested at every stage, over eighty meetings in the Third Committee alone.

It does not mean adoption settled the legal question. [What Kind of Instrument the Declaration Is] takes that next.

And it does not mean the absent were consulted later and satisfied. The instruments that answered the exclusion were fought for, not granted.

Quick revision

• Commission established 1946 under Charter article 68; drafting January 1947 to December 1948; adopted 10 December 1948, Paris, resolution 217 A (III).
• Vote: 48 for, 0 against, 8 abstentions, 2 absent.
• People: Roosevelt chair, Malik rapporteur, Chang vice-chair, Humphrey first outline, Cassin architecture, Hansa Mehta changed article 1 to all human beings, Santa Cruz and Latin America on economic and social rights.
• Twenty of fifty-eight Members were Latin American, and the American Declaration of the Rights and Duties of Man was adopted at Bogotá in April 1948, with duties as well as rights.
• Four arguments: the foundation, deliberately left open; God, proposed by Brazil and rejected; economic and social rights, included; whether to bind, deferred to a three-stage plan.
• The abstentions: socialist States for too little, South Africa over racial equality, Saudi Arabia over articles 18 and 16. None on general cultural grounds.
• Left out: a right of petition, a minorities article, and any reference to colonial independence.

Test yourself

1. Who drafted the Declaration, and why does the composition matter? Eleanor Roosevelt of the United States chaired the Commission on Human Rights, Charles Malik of Lebanon was rapporteur, Peng Chun Chang of China was vice-chair, John Humphrey of Canada produced the first documented outline drawing on constitutions and proposals from around the world, and René Cassin of France gave that outline the architecture the Declaration now has. Hansa Mehta of India changed article 1 from all men are born free and equal to all human beings, and pressed throughout for the equality of women to be written into the text rather than assumed. Hernán Santa Cruz of Chile and the Latin American delegations generally secured much of the economic and social content. Composition matters because the charge that the Declaration is a Western imposition has to be tested against who actually wrote it, and on the record the officers, the decisive amendments and a large part of the substantive content came from outside western Europe and north America. Twenty of the fifty-eight Member States were Latin American, the largest bloc, and they arrived with the American Declaration of the Rights and Duties of Man, adopted at Bogotá in April 1948 with duties as well as rights.

2. How did the drafters handle the question of foundations? By refusing to answer it. A text asserting rights invites the question what grounds them, and the drafters came from natural law, Marxist, Confucian, Islamic and secular liberal traditions that answered it incompatibly. Brazil proposed that article 1 describe human beings as created in the image of God; Peng Chun Chang and others opposed the proposal on the ground that a religious foundation would exclude those who did not share it; and the phrase endowed with reason and conscience was adopted instead. The philosophers consulted during the drafting are recorded as agreeing about the rights provided nobody asked why. That should be presented as a strength rather than a fudge: a conclusion reached independently from several traditions is more robust than one derived from a single foundation that most of the world rejects, and it is the reason an instrument could be adopted without a dissenting vote by States that agreed about almost nothing else.

3. What do the abstentions show? That the objections in 1948 were specific rather than general, which is the single most useful fact in the universality argument. Eight States abstained. The Soviet Union and five other socialist States abstained because the Declaration did not go far enough on economic and social rights, said nothing about fascism, and intruded on sovereignty. South Africa abstained because the equality and non-discrimination provisions were inconsistent with its racial policy. Saudi Arabia abstained principally over article 18's freedom to change religion and article 16's provisions on marriage. No State abstained on the ground that the rights were culturally alien in general, and two of the three positions amounted to saying that the instrument did too little or that it reached a policy the objector could not defend in open terms. That record is stronger evidence in the universality debate than any assertion about shared values, and it is available because the vote and the explanations are documented.

4. What did the drafters leave out, and why? Three things. A right of petition was proposed and dropped, so the Declaration created no remedy and no forum, and that gap was closed only by the first Optional Protocol in 1966 and then only for its parties. A minorities article was deliberately omitted, because the interwar minorities treaties had been selective in application, imposed on defeated and newly created States, and had framed protection around group status in a way that hostile governments and neighbouring States exploited; the subject returned in universal and individual form as article 27 of the Covenant on Civil and Political Rights. And there is no reference to independence for colonial peoples, though the second sentence of article 2 extends the rights to persons in trust and non-self-governing territories and under any other limitation of sovereignty, which the administering powers themselves contested. Each omission is traceable to a specific failure of the interwar system or a specific resistance at the drafting table, rather than to oversight.

Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Three absolute rights, and the drafting shows it. None carries a qualifying clause, and all three reappear in the non-derogable list of article 4(2) of the Covenant.

Articles 6 to 8: the legal person

Article 6. Everyone has the right to recognition everywhere as a person before the law.

The right to have rights. It is the status of being a subject of law rather than an object of it, and its absence is what statelessness, slavery and civil death consist of. The word everywhere addresses the person who crosses a border and would otherwise be a legal nullity on the far side.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law, and to equal protection against any discrimination in violation of the Declaration and against any incitement to such discrimination.

The incitement limb is the seed of the obligation, hardened later in article 4 of the Racial Discrimination Convention and article 20 of the Covenant, to act against advocacy of hatred and not merely to refrain from it.

Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law.

Read the words "national tribunals". In 1948 the remedy contemplated was domestic, because there was no international one. [Individual Communications] and Module II's regional courts are the answer to that gap, built over the following decades.

Articles 9 to 11: the accused person

Article 9. No one shall be subjected to arbitrary arrest, detention or exile. The operative word is arbitrary, not unlawful: a detention can be lawful and still arbitrary if unreasonable, unnecessary or disproportionate.

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of their rights and obligations and of any criminal charge.

It covers civil determinations too, through "rights and obligations", which many candidates miss.

Article 11(1). The presumption of innocence until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

Article 11(2). No retroactive criminal law, under national or international law, and no heavier penalty than the one applicable at the time.

The words "or international law" matter for this paper. They are the textual link to the Nuremberg reasoning and, through it, to [The International Criminal Court: The Crimes].

What the eleven gave the order

Content, which the Charter's pledge lacked.

A vocabulary, in which every later instrument in this book is written: the European Convention's article 3 is the Declaration's article 5, and the African Charter's article 5 is the same prohibition again.

And no procedure. Nothing in these eleven articles tells a person how to complain, and article 8 points them at their own courts.

Worked example

A State detains a journalist under a statute passed after the article they wrote, tries them before a tribunal of serving officials, denies them counsel, and does so in a territory it administers but has not annexed.

Article 11(2) is breached first and decisively: the statute is retroactive.

Article 10 is breached because a tribunal of serving officials is neither independent nor impartial, and article 11(1) because the guarantees necessary for the defence include counsel.

Article 9 is breached, since a detention resting on a retroactive law is arbitrary even if formally lawful.

Article 8 is breached unless an effective remedy exists before a competent national tribunal, which on these facts it does not.

And article 2's second sentence disposes of the territorial point: no distinction may be made on the basis of the status of the territory, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Five articles from four facts, and the fifth is the one an average answer omits.

What it does NOT mean

The Declaration is not a treaty. [What Kind of Instrument the Declaration Is] takes its status seriously rather than asserting either extreme.

These eleven are not the whole of the first generation. Articles 12 to 21 complete it.

And the absence of a limitation clause in an individual article does not make it absolute. Article 29(2) supplies the general limitation.

Quick revision

• 1: born free and equal in dignity and rights, endowed with reason and conscience. "All human beings" is Hansa Mehta's amendment.
• 2: all rights without distinction of any kind on ten grounds plus other status; and no distinction on the status of the territory, whether independent, trust, non-self-governing or under any other limitation of sovereignty.
• 3, 4, 5: life, liberty and security; no slavery or servitude in all their forms; no torture or cruel, inhuman or degrading treatment. All three absolute and non-derogable in the Covenant.
• 6, 7, 8: recognition everywhere as a person before the law; equality and protection against incitement to discrimination; an effective remedy by the competent national tribunals.
• 9, 10, 11: no arbitrary arrest; fair and public hearing by an independent and impartial tribunal, in civil matters too; presumption of innocence with all guarantees necessary for the defence; no retroactive offence under national or international law and no heavier penalty.

Test yourself

1. Why is the second sentence of article 2 the most important one in this paper? Because of when it was written and what it displaced. It provides that no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. In 1948 a very large share of the world's population lived under colonial administration, and several of the States drafting the Declaration were the administering powers. The sentence says that a person in a non-self-governing territory holds exactly what a person in a metropolitan capital holds, which is inconsistent with the legal architecture of empire and was understood as such at the time. For a paper about international order it matters twice over: it extends the Declaration's reach territorially as well as personally, and it is the provision that answers the exclusion recorded in the racial equality proposal of 1919. The first sentence, with its ten grounds and its open reference to other status, is quoted far more often and is doing less work.

2. What does article 6 protect, and why is it called the right to have rights? Article 6 provides that everyone has the right to recognition everywhere as a person before the law. It protects legal personality itself: the status of being a subject of law who can hold rights, own property, contract, marry, sue and be recognised by an official as existing. It is called the right to have rights because every other guarantee presupposes it, since a person the legal system does not recognise cannot assert a right to a fair hearing, there being nobody for the hearing to concern. Its absence is precisely what statelessness, chattel slavery and the old penalty of civil death consisted of, and its inclusion in the non-derogable list of article 4(2) of the Covenant on Civil and Political Rights shows that the drafters understood how basic it was. The word everywhere carries additional weight, because it addresses the person who crosses a border and would otherwise be a legal nullity on the far side of it.

3. What did articles 1 to 11 give the international order, and what did they not? They gave content, which is what the Charter's pledge lacked: articles 1(3), 55 and 56 committed Members to promoting respect for human rights without defining a single one, and these articles supplied the definitions. They gave a vocabulary in which every later instrument in this book is written, so that article 3 of the European Convention is the Declaration's article 5 and article 5 of the African Charter is the same prohibition again, which is why the regional systems in Module II are recognisably variations on one text. What they did not give is procedure. Nothing in these eleven articles tells a person how to complain or to whom, and article 8, which is the remedy provision, points the claimant at the competent national tribunals, because in 1948 there was no international one. Building the procedures took from 1948 to 1976 at the universal level and is what Module III describes, and the regional courts of Module II are the other half of the answer.

4. A journalist is tried under a retroactive statute by serving officials, without counsel, in an administered territory. Analyse it. Article 11(2) is breached first and decisively, because no one may be held guilty of a penal offence on account of an act which did not constitute a penal offence under national or international law at the time it was committed, and the statute post-dates the article. Article 10 is breached because a tribunal composed of serving officials is neither independent nor impartial, whatever the fairness of its procedure. Article 11(1) is breached because the guarantees necessary for the defence include access to counsel, without which the presumption of innocence is defeated in practice. Article 9 is breached because a detention resting on a retroactive law is arbitrary even where it is formally lawful, the operative word in the article being arbitrary rather than unlawful. Article 8 is breached unless an effective remedy exists before a competent national tribunal, which on these facts it does not. And article 2's second sentence disposes of any argument based on the territory's status, since no distinction may be made on the basis of the political, jurisdictional or international status of the territory, whether independent, trust, non-self-governing or under any other limitation of sovereignty.

Three obligations pulling in different directions. Equality inside marriage confronts personal laws; free and full consent confronts child and forced marriage; and protection of the family is the clause most often cited against reform of the family.

Article 17. The right to own property alone as well as in association with others, and no one shall be arbitrarily deprived of his property.

Property is in the Declaration and in neither Covenant. The Cold War drafting defeated it, and India removed it from Part III by the Forty-fourth Amendment in 1978. It is the clearest case of a right whose place in the framework is political rather than logical.

Articles 18 to 20

Article 18. Freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The freedom to change is express here and was fought over. The Covenant's article 18 later softened it to a freedom to have or to adopt a religion or belief of one's choice. Quoting both texts is a high-value point about how a declaration hardens into a treaty.

Article 19. Freedom of opinion and expression, including freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Four components: opinion; expression; the right to seek and receive, not only to impart; and regardless of frontiers. The third is what [The Right to Know] is built on and the fourth is why the article governs the internet without amendment.

Article 20. Freedom of peaceful assembly and association, and no one may be compelled to belong to an association.

Article 21: the political article

21(1): the right to take part in the government of his country, directly or through freely chosen representatives.

21(2): the right of equal access to public service.

21(3): The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 21(3) is the most demanding sentence in the Declaration, because it does not merely protect a voter: it prescribes a form of government. Periodic, genuine, universal, equal and secret are five separate conditions, and a State can satisfy four and fail. Elections that are periodic, universal, equal and secret but not genuine describe a large number of real States.

And it is the sentence that makes the Declaration contentious in an order of sovereign States, because it is the point at which an international instrument tells a government how it must be constituted.

Worked example

A State bars a minority from returning after they leave, refuses them nationality, requires every journalist to join a State press body, and holds elections in which one party may stand.

Article 13(2) is breached by the bar on return, since everyone has the right to return to his country.

Article 15 is breached by the refusal of nationality if the deprivation is arbitrary, and the two together produce statelessness, which detaches the person from the delivery of every other right.

Article 20 is breached expressly by the compulsory press body: no one may be compelled to belong to an association.

Article 19 is breached consequentially, because expression conditioned on membership of a State body is not free.

And article 21(3) is breached because a single-party election is not genuine, whatever its periodicity, suffrage and secrecy.

Note that four of the five failures are about the person's relationship to the State's own machinery, which is why this half of the Declaration matters most to a paper about order.

What it does NOT mean

It does not mean these rights are unqualified. Article 29(2) supplies the limitation clause, and the Covenant attaches specific ones.

It does not mean article 14 obliges a State to grant asylum. It does not, and saying so is the honest answer.

And it does not mean property's absence from the Covenants makes it less of a right. It makes it a right with a weaker treaty home.

Quick revision

• 12: no arbitrary interference with privacy, family, home or correspondence, plus a right to the protection of the law against it.
• 13: movement within a State; leave any country including his own and return to his country. No right to enter another State.
• 14: to seek and to enjoy asylum, not to be granted it.
• 15: a right to a nationality; no arbitrary deprivation; a right to change it. It does not say which.
• 16: marriage and family with equal rights at marriage, during it and at dissolution; free and full consent; the family as the natural and fundamental group unit.
• 17: property alone or in association; no arbitrary deprivation. In the Declaration and in neither Covenant.
• 18, 19, 20: thought, conscience and religion including freedom to change; opinion and expression including seek, receive and impart, regardless of frontiers; peaceful assembly and association, and no compulsory membership.
• 21(3): elections periodic, genuine, universal, equal and secret. Five conditions; a State can satisfy four and fail.

Test yourself

1. What is asymmetric about article 13, and why does it matter to this paper? Article 13 gives everyone freedom of movement and residence within the borders of each State, and the right to leave any country including their own and to return to their country. The asymmetry is that the right to leave is general while the right to enter is confined to one's own country: there is no right to enter any other State. That gap is the legal space in which the whole of immigration law operates and is half of the refugee problem, because a person may lawfully leave a State that persecutes them and find no State obliged to admit them. Article 14 does not close it, since it gives a right to seek and to enjoy asylum rather than to be granted it, and the Refugee Convention of 1951 approaches the problem from the other side, through non-refoulement, by forbidding return to a place of persecution rather than by creating a right of admission. For a paper about international order the point is structural: the Declaration states a right whose enjoyment depends entirely on a decision no instrument obliges anyone to make.

2. Why is article 21(3) the most demanding sentence in the Declaration? Because it prescribes a form of government rather than protecting an individual interest. It provides that the will of the people shall be the basis of the authority of government, and that this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Five separate conditions follow, and a State can satisfy four and fail. Periodic addresses frequency, so a government elected once and never again fails. Universal addresses who may vote, so excluding women, a caste or a minority defeats it. Equal addresses the weight of a vote, so grossly unequal constituencies defeat it. Secret addresses the conditions of casting, since an observed vote is a coerced one. And genuine addresses whether there was a real choice, which is the condition most often failed in practice and which describes a large number of real States. In an order of sovereign States it is also the most contentious sentence, because it is the point at which an international instrument tells a government how it must be constituted.

3. What happened to the property right, and what does it show? Article 17 gives everyone the right to own property alone as well as in association with others and forbids arbitrary deprivation, and it appears in neither Covenant. The reason is documented rather than theoretical: when the Declaration was converted into binding treaties, the socialist bloc would not accept a property right in the form the Western States wanted, and the Western States would not accept the heavily qualified version acceptable to the other side, so the provision was dropped from both instruments rather than compromised. India performed the same operation domestically thirty years later, when the Forty-fourth Amendment removed the property right from Part III in 1978 and relocated it elsewhere in the Constitution. What it shows is that the presence or absence of a right in a particular instrument reflects the politics of the negotiation rather than a judgment about whether the interest is fundamental, which is a lesson that applies again to the New International Economic Order in Module IV.

4. How do articles 18 and 19 differ between the Declaration and the Covenant? Article 18 of the Declaration expressly protects the freedom to change a religion or belief, alongside the freedom to manifest it in teaching, practice, worship and observance, alone or in community and in public or private. The Covenant's article 18 softened that wording to a freedom to have or to adopt a religion or belief of one's choice, a change made in response to objections during the drafting of the treaty, and the substance survives while the express reference to change does not. Comparing the two texts is a high-value point about how a declaration hardens into a treaty, because it shows the concessions that binding force cost. Article 19 travelled in the other direction: the Declaration's formulation, freedom to seek, receive and impart information and ideas through any media and regardless of frontiers, was carried into the Covenant's article 19(2) substantially intact and gained an explicit limitation clause in 19(3). The word seek is the one that later carried the whole right of access to information, and regardless of frontiers is why the article governs the internet without amendment.

Article 27: 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, and the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author.

27(1) and 27(2) are in tension, and the framework supplies no priority rule. A patent that prices a medicine beyond a population sets the two against each other.

Article 28: the article this paper is built on

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

One sentence, and it is the only article whose subject is the arrangement of the world rather than a right. [What an International Order Means] took it apart; the four elements of an order and the whole of Modules II and III are the answer to it.

It is also the textual origin of the third generation: the rights to development, to peace and to a shared environment are all claims about the order, and [The Role of the United Nations in Advocating the Order] shows the claim being pressed.

And its weakness is the mirror of its strength: no duty-bearer, no obligation, no mechanism.

Article 29: duties, and the limitation clause

29(1): Everyone has duties to the community in which alone the free and full development of his personality is possible.

The only provision imposing an obligation on the individual, and the duties run to the community, not to the State. It is the direct answer to any charge that the framework is purely individualistic, and [The African Charter: The Duties of the Individual] shows a regional instrument taking it much further.

29(2): in the exercise of his rights, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

The words "only" and "solely" make this a restriction on the power to restrict, not a general licence. That is the point candidates most often get backwards.

29(3): rights may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30: the saving clause

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Three addressees: State, group or person. It is one of the few places the Declaration speaks of groups and persons as potential violators. Its treaty counterpart is article 5(1) of both Covenants, and article 17 of the European Convention.

The danger in it is that a State can characterise its opponents as destroyers, and the safeguard is the threshold: activity aimed at the destruction of rights, which ordinary political opposition does not meet.

Worked example

A question asks what the Declaration contributed to the international order beyond a list of rights.

Articles 22 to 27 contributed the second generation, with the resource qualification in article 22 that the Covenant later turned into progressive realisation, and with the international co-operation clause that Module IV's economic-order claim was built on.

Article 28 contributed the concept of the order itself, and the entitlement to one.

Article 29 contributed the limitation clause every later instrument copied, and a statement of duties that answers the charge of individualism.

Article 30 contributed the anti-abuse rule, which every subsequent general instrument reproduces.

Close on the shape: articles 1 to 27 are the rights, and 28 to 30 are the terms on which they are held, which is why the last three are the constitutional provisions of the instrument.

What it does NOT mean

It does not mean article 22's resource clause excuses inaction. The Covenant's article 2(1) is resource-conditioned and has immediate elements.

It does not mean article 28 creates an obligation on any identified State. It names no duty-bearer, which is its known limitation.

And it does not mean article 29(2) authorises restriction generally. It permits restriction only by law and only for the listed purposes.

Quick revision

• 22: social security as a member of society, realised through national effort and international co-operation and in accordance with the organization and resources of each State, for rights indispensable for his dignity.
• 23 to 27: work, free choice, equal pay for equal work, a remuneration ensuring an existence worthy of human dignity, trade unions; rest and leisure with holidays with pay; an adequate standard of living including food, clothing, housing and medical care, and motherhood and childhood entitled to special care; education free at least in the elementary and fundamental stages and compulsory at elementary level, with parents' prior right to choose; cultural life, the benefits of scientific advancement, and the author's moral and material interests.
• 28: everyone is entitled to a social and international order in which the rights can be fully realized. The only article whose subject is the arrangement of the world.
• 29(1): duties to the community in which alone the free and full development of his personality is possible. 29(2): limitations only as determined by law and solely for the rights of others and the just requirements of morality, public order and the general welfare in a democratic society. 29(3): never contrary to the purposes and principles of the United Nations.
• 30: nothing implies for any State, group or person a right to activity aimed at the destruction of the rights.

Test yourself

1. What does article 22 add beyond social security? Three things that shape the whole second generation. It states the category relationally, beginning "Everyone, as a member of society", so these are rights held as part of a community rather than only against it. It divides the duty, providing for realisation through national effort and international co-operation, which is the ancestor of article 2(1) of the Economic, Social and Cultural Covenant and the textual root of every later claim about international assistance, including the New International Economic Order and the right to development. And it qualifies the entitlement, requiring realisation in accordance with the organization and resources of each State, a limitation with no counterpart anywhere in articles 1 to 21 and the seed of progressive realisation. The article closes by describing these as the economic, social and cultural rights indispensable for a person's dignity and the free development of their personality, which presents them as conditions of the dignity article 1 rests on rather than as welfare provision.

2. Why is article 28 the article this paper is built on? Because it is the only provision in the Declaration whose subject is the arrangement of the world rather than an entitlement of a person. Everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realised. Every other article names something a person may claim: a life, a trial, an education. This one names the conditions in which those claims can be met, which is exactly the subject of a paper on human rights and international order. It has two further consequences. It internationalises the duty, because an order that is international cannot be produced by any State acting alone, which is why Modules II and III are about institutions rather than about rights. And it is the textual origin of the third generation, since the claims to development, to peace and to a shared environment are all claims about the order rather than about a discrete entitlement. Its weakness is the mirror of its strength: it identifies no duty-bearer, specifies no obligation and creates no mechanism.

3. What do the three closing articles do? They state the terms on which every right in the instrument is held, which is why they function as the Declaration's constitutional provisions. Article 28 states the conditions: an entitlement to a social and international order in which the rights can be fully realised. Article 29 states the limits in three parts: everyone has duties to the community in which alone the free and full development of his personality is possible, which is the only obligation the Declaration imposes on an individual and runs to the community rather than to the State; limitations are permitted only as determined by law and solely for securing due recognition and respect for the rights of others and meeting the just requirements of morality, public order and the general welfare in a democratic society, where the words only and solely make it a restriction on the power to restrict rather than a licence; and rights may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30 states the instrument's integrity: nothing in it implies for any State, group or person a right to activity aimed at the destruction of the rights it sets out.

4. What tension does article 27 contain, and how should it be handled? Article 27(1) gives 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. Article 27(2) gives everyone the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which they are the author, which is the human rights root of intellectual property. The two pull against each other whenever exclusive rights restrict access, and the sharpest case is a patented medicine priced beyond the population that needs it, where one paragraph promises a share in scientific advancement and the other protects the interest that makes the price possible. Neither the Declaration nor article 15 of the Economic, Social and Cultural Covenant, which repeats the pairing, supplies a priority rule. The right approach is to state that the conflict is on the face of the article, to note that it is managed rather than settled through compulsory licensing and public health flexibilities, and to resist inventing an answer the instruments do not give.

And the regional instruments cite it in their preambles: the European Convention of 1950, the American Convention of 1969 and the African Charter of 1981 all do, which is why Module II reads as variations on one text.

Four: domestic constitutional adoption

Many constitutions written after 1948 reproduce its language or refer to it expressly.

India's route is interpretive rather than textual. The Declaration is not part of Indian law, and Indian courts use it to construe Part III, relying on the direction in article 51(c) that the State foster respect for international law and treaty obligations, and on the rule that international obligations are read in where no inconsistent statute occupies the field.

What "not binding" bought

The counter-intuitive point, and it is the one worth carrying. The Declaration achieved what it did because it was not a treaty.

No ratifications were needed, so it took effect immediately and universally rather than State by State.

No reservations were possible, so its text reads the same everywhere, which [Regional Systems Compared] shows is not true of the treaties.

And no State had to accept supervision, which is why it could be adopted in 1948 while the Covenants took eighteen more years and are still not universally ratified.

The cost was equally specific: no remedy, no forum, no complaint, and no consequence for breach except argument.

The comparison to carry

Worked example

A State is accused of prolonged arbitrary detention. It has not ratified the Covenant on Civil and Political Rights and argues that the Declaration is only a recommendation.

Concede the form. It is a resolution and was not binding as such in 1948.

Then take the routes. Prolonged arbitrary detention is among the provisions widely accepted as customary, so it binds regardless of ratification. The Declaration supplies the content of the State's own Charter obligation under articles 55 and 56, accepted on becoming a Member. It is reproduced in treaties the State has not ratified, which is evidence of the customary rule rather than a source of obligation for it. And if the State's own constitution reproduces the guarantee, the domestic route is available too.

Close on the evidential point. If the State denies the detentions rather than asserting a right to detain, its own conduct is evidence that it accepts the rule.

Concede the form, establish the substance by another route, and use the denial as proof of the standard.

What it does NOT mean

It does not mean the whole Declaration is customary law. The core is; the claim about every article is contested.

It does not mean form is irrelevant. A treaty gives a claimant a forum, and the Declaration gives none.

And it does not mean the Declaration has been superseded. It is still the text everyone cites, including in States that have ratified nothing.

Quick revision

• Adopted as General Assembly resolution 217 A (III), a recommendation under Charter article 10, describing itself as a common standard of achievement for all peoples and all nations.
• Four routes to binding force: customary international law; authoritative interpretation of Charter articles 55 and 56, endorsed by the Proclamation of Teheran 1968; incorporation into treaties, universal and regional; and domestic constitutional adoption, which in India is interpretive through article 51(c).
• Widely accepted as customary: genocide, slavery, torture, prolonged arbitrary detention, systematic racial discrimination and non-discrimination. Not every article.
• Non-binding form was an advantage: no ratification, no reservations, no supervision to accept. The cost was no remedy and no forum.
• The evidential point: a State accused of torture denies the torture rather than asserting a right to torture, and denial is evidence of the rule.

Test yourself

1. What was the Declaration in 1948, and why does the form matter? It was resolution 217 A (III) of the General Assembly. Under article 10 of the Charter the Assembly may discuss questions within the Charter's scope and make recommendations, so a resolution addressed to Members recommends rather than obliges, and the text says as much about itself, proclaiming the Declaration as a common standard of achievement for all peoples and all nations to the end that every individual and every organ of society shall strive by teaching and education to promote respect for the rights and by progressive measures to secure their universal and effective recognition and observance. The form matters twice. A candidate asserting that the Declaration was binding in 1948 has made a factual error that undermines everything else in the answer. And the form is what made adoption possible at all, since no State had to ratify anything, accept supervision or expose itself to a complaint, which is why forty-eight States could agree in 1948 to language that took a further eighteen years to put into treaties.

2. Set out the routes by which it now binds. Four. Customary international law: its provisions have been invoked, written into constitutions, reproduced in treaties and applied by courts and United Nations organs continuously for over seventy-five years, and there is broad acceptance that the core has become customary, in particular the prohibitions of genocide, slavery, torture, prolonged arbitrary detention and systematic racial discrimination, and the principle of non-discrimination. Authoritative interpretation of the Charter: articles 55 and 56 bind Members to promote and observe human rights without defining them, and the Declaration, drafted by the commission article 68 required and adopted without a dissenting vote, supplies that content, a position the Proclamation of Teheran stated expressly in 1968. Incorporation into treaties: the two Covenants reproduce most of it in binding form, and the European, American and African regional instruments cite it in their preambles. And domestic constitutional adoption, whether by textual reproduction or, as in India, by courts using it to construe fundamental rights under article 51(c)'s direction to foster respect for international law.

3. Why is a State's denial of an accusation evidence for the rule? Because custom requires a general and consistent practice followed out of a sense of legal obligation, and how a State responds to an accusation reveals whether it accepts the standard. A State accused of torture almost never asserts a right to torture: it denies that torture occurred, disputes the facts, or characterises the treatment as something else. Each of those responses concedes that torture would be unlawful, because a State denying an allegation is arguing about facts within a rule it accepts rather than about whether the rule exists. Systematic denial across many States over many decades is therefore stronger evidence of an accepted legal standard than compliance would be, since compliance is ambiguous between obligation and convenience. The argument has limits that should be stated with it: it works for the core prohibitions where denial is the invariable pattern, and it does not establish that every one of the thirty articles has become customary.

4. In what sense was the Declaration's non-binding form an advantage? In three specific senses a treaty could not have delivered. No ratification was required, so the standard applied immediately and to everyone rather than accumulating State by State over decades, which is what actually happened to the Covenants, adopted in 1966 and in force only in 1976. No reservations were possible, so the text reads the same everywhere, whereas the treaties that followed carry reservations that vary the obligation from party to party and, in some cases, hollow out central provisions. And no State had to accept supervision, which removed the objection that has delayed or prevented ratification of binding instruments ever since. The cost was equally specific: no remedy, no forum, no complaints procedure and no consequence for breach beyond argument and reputation. The honest assessment is that the Declaration bought universality of application at the price of enforceability, and that the four routes to binding force are how the framework has spent seventy-five years recovering what the form gave away.

The evidence that politics mattered is the ratification pattern that followed: several States ratified one Covenant long before the other, which a single instrument would have prevented.

What the split preserved

Adopted and opened for signature on the same day, 16 December 1966, by the Assembly's own 1952 direction, so neither could be presented as senior.

Article 1 is identical in both. All peoples have the right of self-determination; they freely determine their political status and freely pursue their economic, social and cultural development; they may freely dispose of their natural wealth and resources; and in no case may a people be deprived of its own means of subsistence.

That identical article is the drafters' own statement that the two instruments are one framework, and it is the moment self-determination became a treaty right. [Self-Determination] and [Permanent Sovereignty over Natural Resources] both start there.

Both preambles are identical, and both recite that the ideal of free human beings enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his civil and political rights as well as his economic, social and cultural rights.

What it cost the order

A hierarchy in practice. One treaty had a complaints procedure and the other did not for forty-seven years, so one generated jurisprudence and the other generated reports, and the difference in visible law was read as a difference in status.

Selective ratification, so the same instrument does not bind the same set of States.

Two committees, two reporting cycles and two bodies of practice for rights the Declaration treated as one, which is a real burden on a small State's administration.

And a vocabulary for dismissal, used in both directions during the Cold War.

Vienna 1993 is the formal repair: all human rights are universal, indivisible, interdependent and interrelated, and must be treated globally in a fair and equal manner, on the same footing and with the same emphasis.

Worked example

A question asks whether the decision to draft two covenants was justified.

Give the chronology: 1950 for one, 1952 for two, 1966 for adoption, 1976 for entry into force.

Give the four reasons, marking which are formal and which political.

Concede the strongest: supervision genuinely differs, and periodic reporting is the right technique for a progressive obligation. That is a reason, not a pretext.

Then attack: the different-obligation argument fails in both directions, justiciability has been disproved by practice, and the political explanation accounts for a ratification pattern the formal reasons cannot.

Note what the drafters did to prevent a hierarchy: simultaneous adoption, identical article 1, identical preambles.

And close on the outcome: the hierarchy arrived anyway, through the machinery, and Vienna was needed to repudiate it.

What it does NOT mean

It does not mean the drafters intended a hierarchy. Simultaneous adoption and the identical article 1 are evidence they intended the opposite.

It does not mean the split was wrong. The reasons were partly sound and partly convenient, and the consequences were worse than anticipated.

And it does not mean the two are separate frameworks. They share article 1, share a preamble, and were drafted by the same commission from the same Declaration.

Quick revision

• 1950 one covenant; 1952 two, to be adopted simultaneously; 16 December 1966 both adopted with the first Optional Protocol; in force January and March 1976.
• Four reasons: different obligations (respect and ensure against progressively, to the maximum of available resources); different supervision, complaints against reporting, which is the strongest; justiciability; and Cold War politics.
• The machinery consequence: a complaints procedure for one from 1966, and none for the other until the Optional Protocol entered into force in 2013, forty-seven years later.
• Preserved: same-day adoption, identical article 1 on self-determination, identical preambles reciting that the ideal is achieved only if both sets are enjoyed.
• Cost: a practical hierarchy, selective ratification, two committees, and a vocabulary for dismissal. Vienna 1993 is the repair.

Test yourself

1. Trace the decision to split, with dates. The Universal Declaration of 1948 contained both categories in a single instrument. In 1950 the General Assembly resolved that the covenant to be drafted should include economic, social and cultural rights, and the Commission on Human Rights prepared articles on them during 1951. In 1952 the Assembly reversed itself and requested two covenants instead, directing that they be adopted and opened for signature simultaneously so that neither would appear senior to the other. Draft covenants reached the Assembly in 1954, and the Third Committee then considered them article by article for twelve years. Both Covenants and the first Optional Protocol were adopted on 16 December 1966, and they entered into force on 3 January and 23 March 1976 respectively. The interval is worth stating in any answer: eighteen years from the Declaration to adoption and a further decade to entry into force, which is the strongest practical vindication of the decision to produce a declaration first rather than waiting for a treaty.

2. Which of the four reasons survives scrutiny, and why does it matter most to this paper? The supervision argument. A right that must be respected immediately can be supervised by an individual complaint, because a body can decide on given facts whether a particular trial was fair or a particular detention arbitrary. A right realised progressively to the maximum of available resources is harder to supervise that way, because the question is whether the State has done enough over time given what it had, and periodic reporting is the technique suited to that question. That is a genuine institutional reason rather than a pretext. It matters most to a paper about international order because it is the reason that produced two different machineries rather than two different texts: a Human Rights Committee with an individual complaints procedure from 1966, and no complaints procedure at all for economic, social and cultural rights until the Optional Protocol was adopted in 2008 and entered into force in 2013. Forty-seven years of difference in visible law is what created the practical hierarchy, and it is a fact about mechanism rather than about principle.

3. What did the drafters do to prevent a hierarchy, and did it work? Three things. They directed in 1952 that the two Covenants be adopted and opened for signature simultaneously, and both were adopted on 16 December 1966, so neither could be presented as the primary instrument. They gave both an identical article 1, providing that all peoples have the right of self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, and that all peoples may freely dispose of their natural wealth and resources and may in no case be deprived of their own means of subsistence. And they gave both identical preambles, reciting that the ideal of free human beings enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy civil and political rights as well as economic, social and cultural rights. It did not work. The hierarchy arrived through the machinery rather than the text, because one Covenant could be invoked by an individual from the outset and the other could not for forty-seven years, so one accumulated visible jurisprudence and the other accumulated reports, and the difference was read as a difference in status.

4. What did the split cost the international order? Four things. A practical hierarchy, since for forty-seven years only one Covenant could be invoked by an individual, and law that is visible looks more real than law that is reported. Selective ratification, because States could adopt the instrument they favoured and postpone the other, so the same set of rights does not bind the same set of States, which a single covenant would have prevented. Institutional duplication, with two committees, two reporting cycles and two bodies of practice for rights the Declaration had treated as one, which is a genuine administrative burden on a small State and part of the reason for chronic non-reporting. And a vocabulary for dismissal, because anyone wishing to downgrade either category acquired a textual argument, which both blocs used during the Cold War. The formal repair is the Vienna Declaration of 1993, which states that all human rights are universal, indivisible, interdependent and interrelated and must be treated globally in a fair and equal manner, on the same footing and with the same emphasis. The practical repair is the Optional Protocol that finally gave the second Covenant a complaints procedure.

Article 4: derogation. A public emergency threatening the life of the nation, officially proclaimed; measures strictly required by the exigencies; consistent with other international obligations; no discrimination solely on race, colour, sex, language, religion or social origin; immediate notification through the Secretary-General.

Article 4(2) lists the seven that cannot be touched: 6 life, 7 torture, 8(1) and 8(2) slavery and servitude, 11 no imprisonment for contractual debt, 15 no retroactive offence or heavier penalty, 16 recognition as a person before the law, and 18 thought, conscience and religion.

Read the list twice. Four are expected. Three are not: debt imprisonment, retroactivity and legal personhood. Their presence tells you the drafters were protecting against a State that abolishes a person in law, punishes yesterday's lawful act, or jails the poor for poverty. [Counter-Terrorism Measures and the Rights They Engage] uses the list.

Article 5: the two saving clauses

Article 5(1) is the abuse of rights clause: nothing in the Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for.

Article 5(2) is the more useful one: there shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in any State Party pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

That is the pro homine rule in the Covenant itself, identical to article 5(2) of the other Covenant, and it is what prevents ratification from being used to lower a standard a State already meets. [Regionalism Against Universality] traces the same rule through the regional treaties.

Articles 6 to 27, in outline

6 life, with the death penalty regulated and not abolished, only for the most serious crimes, never for offences by under-eighteens and never carried out on pregnant women.

7 torture and cruel, inhuman or degrading treatment, absolute, with no medical or scientific experimentation without free consent.

8 slavery, servitude and forced labour, with the first two non-derogable and the third not.

9 liberty and security: no arbitrary arrest, reasons at the time of arrest, prompt production before a judge, trial within a reasonable time or release, pre-trial detention not the general rule, proceedings to test lawfulness, and enforceable compensation.

10 treatment in custody with humanity and respect for the inherent dignity of the human person, accused segregated from convicted, and reformation and social rehabilitation as the essential aim.

11 no imprisonment merely for inability to fulfil a contractual obligation.

12 movement and residence, freedom to leave any country, and no arbitrary deprivation of the right to enter his own country.

13 expulsion of an alien only by a decision in accordance with law, with rights to submit reasons, review and representation, except where compelling reasons of national security otherwise require.

14 fair trial, in seven lettered minimum guarantees, plus appeal, compensation for a miscarriage, and double jeopardy.

15 no retroactive offence under national or international law, no heavier penalty, and the benefit of a lighter penalty enacted later.

16 recognition everywhere as a person before the law.

17 no arbitrary or unlawful interference with privacy, family, home or correspondence, plus the right to the protection of the law.

18 thought, conscience and religion, with 18(3) limiting only manifestation and containing no national security ground.

19 opinion absolutely, and expression with special duties and responsibilities, restricted only as provided by law and necessary for the rights or reputations of others, national security, public order, public health or morals.

20 the only mandatory prohibitions: war propaganda and advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence shall be prohibited by law.

21 peaceful assembly, and 22 association including trade unions, both on the necessary in a democratic society formula.

23 family and marriage, with free and full consent and equality of rights and responsibilities of spouses.

24 the child: measures of protection from family, society and the State, registration immediately after birth, and the right to acquire a nationality.

25 the political rights: citizens only, the right and the opportunity, genuine periodic elections by universal and equal suffrage and secret ballot, and access on general terms of equality to public service.

26 equality before the law and equal protection as a free-standing right, reaching any field regulated and protected by public authorities, not only Covenant rights.

27 persons belonging to ethnic, religious or linguistic minorities, in community with other members of their group, to enjoy their culture, profess and practise their religion and use their language.

Why this Covenant matters to an order

Because it is the first universal instrument with machinery attached. [The Treaty Bodies] and [Individual Communications] take the Committee under article 28 and the Optional Protocol.

And because article 26 is the door through which claims the Covenant does not contain reach the stronger machinery. A discriminatory pension is not a Covenant right; it is a field regulated by public authorities, and article 26 reaches it.

Worked example

A State proclaims an emergency, detains without trial, tries detainees before military officers, and applies a statute enacted after the conduct.

Article 4 permits derogation from articles 9 and 14 if the conditions are met, and not from article 15, which is on the 4(2) list.

So the retroactive statute fails outright, and no emergency is relevant to it.

Article 9's derogation must still be strictly required, and the remedy protecting the non-derogable core survives, so proceedings to test the lawfulness of detention must remain available.

Article 14's guarantees may be derogated from, and a military tribunal must still be independent and impartial if the State has not derogated from that.

And article 2(3) requires an effective remedy throughout.

The order of the answer: identify the non-derogable article first, then the conditions on the derogable ones, then the remedy.

What it does NOT mean

Article 1 does not give an individual remedy. It is a right of peoples, and no communication lies on it.

Article 6 does not abolish the death penalty. It restricts it, and the Second Optional Protocol of 1989 abolishes it for its parties.

And article 20 does not make offensiveness criminal. The threshold is advocacy amounting to incitement.

Quick revision

• 1: all peoples self-determination; free disposal of natural wealth and resources; in no case deprived of their means of subsistence; administering States must promote and respect it. Identical in both Covenants; no individual communication.
• 2: respect and ensure, within its territory and subject to its jurisdiction, without distinction; legislate; and an effective remedy notwithstanding official capacity, determined by a competent authority and enforced.
• 3 equal enjoyment by men and women. 4 derogation, with the non-derogable seven: 6, 7, 8(1) and 8(2), 11, 15, 16, 18.
• 6 to 27: life; torture; slavery; liberty; custody; contractual debt; movement; expulsion of aliens; fair trial in seven guarantees; retroactivity with the lighter penalty benefit; legal personality; privacy with a duty to protect; religion, with no national security ground in 18(3); expression with duties and responsibilities; article 20's mandatory prohibitions; assembly; association; family; the child; article 25's right and the opportunity; article 26 free-standing equality; and article 27 minorities.

Test yourself

1. Why is article 1 unusual, and what does it do for this paper? It provides that all peoples have the right of self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development; that all peoples may freely dispose of their natural wealth and resources without prejudice to obligations arising out of international economic co-operation based on the principle of mutual benefit, and that in no case may a people be deprived of its own means of subsistence; and that States Parties, including those responsible for administering Non-Self-Governing and Trust Territories, shall promote and respect it. Three features are unusual. It is identical in both Covenants, which is the drafters' own statement that the two instruments form one framework. It is a right of peoples rather than individuals, so the Human Rights Committee has held that it cannot found an individual communication under the Optional Protocol, making it a treaty right with no individual remedy. And paragraph 3 names the administering powers, which converted decolonisation from a political programme into a treaty obligation. For this paper it does double duty, since paragraph 2 is the treaty form of permanent sovereignty over natural resources and is where the Module IV claim on the economic order begins.

2. Set out the five obligations in article 2. To respect the rights, meaning not to violate them by the State's own conduct. To ensure them, which imports the duties to protect against third parties and to take positive steps, and is the word that makes the Covenant more than a list of prohibitions. To do both without distinction of any kind on an open list of grounds, an obligation that is immediate and admits no progressive defence. To legislate, since article 2(2) requires a State, where a right is not already provided for, to take the necessary steps in accordance with its constitutional processes to adopt such laws or other measures as may be necessary. And to provide a remedy under article 2(3), which has three limbs: an effective remedy notwithstanding that the violation was committed by persons acting in an official capacity, determination of the claim by competent judicial, administrative or legislative authorities with a duty to develop the possibilities of judicial remedy, and enforcement of remedies when granted. The words within its territory and subject to its jurisdiction in article 2(1) are the extraterritoriality question in six words, and effective control and custody extend the obligation beyond the territory.

3. What is on the article 4(2) list, and what does its composition reveal? Articles 6, 7, 8 paragraphs 1 and 2, 11, 15, 16 and 18: the inherent right to life; freedom from torture and from cruel, inhuman or degrading treatment and from medical or scientific experimentation without free consent; freedom from slavery, the slave trade and servitude; freedom from imprisonment merely for inability to fulfil a contractual obligation; freedom from retroactive criminal law and from a heavier penalty than was applicable at the time; the right to recognition everywhere as a person before the law; and freedom of thought, conscience and religion. Four of these are what anyone would predict. The other three are the interesting ones: debt imprisonment, retroactivity and legal personhood are on the list because the drafters were protecting not only against cruelty but against a State that abolishes a person in law, punishes what was lawful when done, or jails people for poverty. Note also the precision on article 8, where paragraphs 1 and 2 are non-derogable while paragraph 3, forced or compulsory labour, is not, and that paragraph already excludes service exacted in an emergency threatening the life of the community.

4. Why is article 26 the most useful article in the Covenant for a machinery paper? Because it is free-standing where article 2(1) is accessory, and it therefore lets claims the Covenant does not contain reach the stronger of the two supervisory systems. Article 2(1) forbids discrimination in the enjoyment of the rights recognised in the Covenant, so a complaint under it must attach to a Covenant right. Article 26 provides independently that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law, and requires the law to prohibit discrimination and guarantee equal and effective protection on any ground. The Human Rights Committee has held that it applies to any field regulated and protected by public authorities, not only to the Covenant's own subject-matter. The consequence for machinery is direct: a discriminatory social security scheme, tax rule or education subsidy can be challenged under the Civil and Political Covenant, which has had an individual complaints procedure since 1966, even though the underlying entitlement belongs to the other Covenant, whose procedure arrived only in 2013.

Article 5: the abuse-of-rights clause, and paragraph 2 forbids restricting an existing national right on the pretext that the Covenant recognises it less generously.

Articles 6 to 15, in outline

6 work, as the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, with technical and vocational guidance and training among the steps.

7 just and favourable conditions: fair wages and equal remuneration for work of equal value without distinction of any kind, with women guaranteed conditions not inferior to men's; a decent living for the worker and the family; safety and health; equal opportunity of promotion subject to seniority and competence only; and rest, leisure, limited hours, periodic holidays with pay and pay for public holidays.

8 trade unions in four limbs: to form and join, to federate and to join international trade-union organisations, to function freely, and the right to strike, provided that it is exercised in conformity with the laws of the particular country, which is the only express treaty right to strike in the Bill.

9 social security, including social insurance, in a single sentence.

10 the family: the widest possible protection and assistance, marriage on free consent, paid leave or leave with adequate social security benefits for working mothers before and after childbirth, protection of children and young persons from economic and social exploitation, and age limits below which paid child labour is prohibited and punishable by law.

11 an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions; plus the fundamental right of everyone to be free from hunger, with duties to improve production, conservation and distribution and to ensure an equitable distribution of world food supplies in relation to need.

12 the highest attainable standard of physical and mental health, with four named steps including reduction of the stillbirth rate and infant mortality, environmental and industrial hygiene, control of epidemic and other diseases, and medical service in the event of sickness.

13 education, directed to the full development of the human personality and the sense of its dignity; primary compulsory and free to all, secondary generally available and accessible with free education progressively introduced, higher education equally accessible on the basis of capacity, fundamental education for those who missed primary, and respect for the liberty of parents to choose non-public schools.

14 a two-year deadline: a State that cannot yet secure free compulsory primary education must, within two years, work out and adopt a detailed plan of action with its own timetable. This is the answer to anyone who says the Covenant sets no dates.

15 culture: to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to benefit from the moral and material interests of one's own scientific, literary or artistic production, with an undertaking to respect the freedom indispensable for scientific research and creative activity.

Why the differences matter to an order

Because they are the reason the two halves developed different machinery. [Why There Are Two Covenants] traced the split; the consequence is that this Covenant had reporting only for decades and its complaints procedure arrived with the Optional Protocol in 2013.

And because article 2(1)'s co-operation clause is the only treaty text a developing State can point to when it argues that the order itself, and not only its own government, owes something. [The New International Economic Order Assessed Today] turns on how far that clause can be pressed.

Worked example

A State cuts its health budget in a recession, closes rural clinics, and defends the decision by saying that article 2(1) makes the right progressive.

Progressive realisation sets a direction, and a deliberately retrogressive measure is presumed impermissible.

The test is the State's own maximum available resources, so the question is whether the cut was unavoidable given everything the State had, including international assistance sought under article 2(1).

Article 2(2) is immediate, so if the closures fall on one ethnic region, the discrimination limb is breached whatever the resource position.

Article 12(2)(d) names medical service in the event of sickness as a step towards full realisation, which is where the substance sits.

And article 4 does not help the State, because a budget cut is not a limitation determined by law for the general welfare; it is a failure of realisation, which is a different question.

What it does NOT mean

Progressive realisation is not a promise to try. The obligations to take steps and not to discriminate are immediate, and the destination is fixed.

Article 8 does not make strikes lawful everywhere. The right is expressly subject to the laws of the particular country.

And article 2(3) does not let a developed State treat aliens worse. Only developing countries may invoke it, and only for economic rights.

Quick revision

• 1 identical to its twin. 2(1): take steps, individually and through international assistance and co-operation, to the maximum of available resources, progressively achieving full realisation, by all appropriate means, including particularly legislative measures. 2(2) non-discrimination, immediate. 2(3) developing countries and economic rights of non-nationals only.
• 3 equal enjoyment by men and women. 4 limitation clause, no derogation clause: determined by law, compatible with the nature of the rights, solely to promote the general welfare in a democratic society. 5 abuse of rights.
• 6 work freely chosen. 7 fair wages, equal remuneration for work of equal value, decent living, safety, promotion on seniority and competence, holidays with pay. 8 unions, federations, free functioning and the right to strike in conformity with national law. 9 social security including social insurance.
• 10 family, free consent, paid maternity leave, child labour punishable by law. 11 adequate food, clothing and housing, continuous improvement, and freedom from hunger with equitable distribution of world food supplies. 12 highest attainable standard of physical and mental health.
• 13 education for the full development of the human personality; primary free and compulsory. 14 a detailed plan of action within two years. 15 cultural life, benefits of scientific progress, authors' interests, and freedom of research.

Test yourself

1. Take article 2(1) apart and say which parts are immediate. The clause requires each State Party to undertake to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised by all appropriate means, including particularly the adoption of legislative measures. Two things in it are immediate. The undertaking to take steps is due at once, so a State that has done nothing is in breach however poor it is; only the full result is deferred. And the choice of means, though left to the State, is not a licence to choose nothing, since legislative measures are singled out as expected. Read with article 2(2), whose guarantee that the rights will be exercised without discrimination of any kind is immediate and admits no progressive defence, the Covenant contains more that is owed today than its reputation suggests. The phrase to the maximum of its available resources sets the yardstick against the State's own capacity, so poverty is a real defence and competing spending priorities in a rich State are not. And the reference to international assistance and co-operation is the only place in either Covenant where the obligation clause itself looks outward at other States.

2. How does article 4 differ from article 4 of the other Covenant, and why does that matter? They share a number and do opposite work. Article 4 of the Civil and Political Covenant is a derogation clause: in a public emergency threatening the life of the nation, officially proclaimed, a State may suspend obligations to the extent strictly required, subject to a list of seven articles it can never touch. Article 4 of this Covenant is a general limitation clause and there is no derogation clause at all: the State may subject the rights only to limitations determined by law, only in so far as compatible with the nature of these rights, and solely for the purpose of promoting the general welfare in a democratic society. Two consequences follow. A State cannot suspend the right to education or to health by proclaiming an emergency, because the instrument gives it no mechanism to do so. And every limitation on these rights must be justified by the general welfare, a positive purpose, rather than by the negative purposes of national security or public order that the other Covenant's individual articles allow.

3. Which articles put dates or hard edges on a Covenant said to have none? Article 14 is the clearest: a State that at the time of becoming a party has not secured free compulsory primary education in its metropolitan territory or other territories under its jurisdiction must, within two years, work out and adopt a detailed plan of action for progressive implementation within a reasonable number of years to be fixed in the plan. That converts progressive realisation into a dated planning obligation with a two-year fuse. Article 2(2)'s non-discrimination guarantee is immediate. Article 11(2) describes freedom from hunger as a fundamental right, using a stronger register than the surrounding text and attaching specific duties on food production and equitable distribution of world food supplies in relation to need. Article 13(2)(a) makes primary education compulsory and free to all without a progressive qualifier, in contrast with the express progressive introduction of free education at the secondary and higher levels. And article 10 requires that child labour below a set age be punishable by law, an obligation on the statute book rather than on outcomes.

4. Why is article 2(1) important to Module IV of this paper? Because it is the only obligation clause in the International Bill of Human Rights that expressly contemplates duties running between States rather than only from a State to the people in its territory. The words individually and through international assistance and co-operation, especially economic and technical, give a treaty foothold to the argument that realising these rights is a shared enterprise. That foothold is what the New International Economic Order resolutions of 1974 and the Declaration on the Right to Development of 1986 build on when they assert that the structure of trade, finance and technology transfer is itself a human rights question. The counter-argument is equally textual: the clause obliges each State to take steps through co-operation, and does not in terms oblige any particular State to supply assistance to any other, so it creates no entitlement to aid. The debate over whether there is a right to a just international order is largely a debate about how much weight those eleven words can carry.

Why the paper asks for it

Because the syllabus moves from the concept of a bill of rights to the international one and then to the Indian one, and the examiner wants the comparison. [What a Bill of Rights Is] gives the four elements to compare against, [The Bill of Rights in the Constitutional Tradition] gives the ancestry, and [Fundamental Rights as India Bill of Rights] gives the domestic case.

Worked example

Asked whether the International Bill of Human Rights is properly so called, take the four elements of a bill of rights in turn.

A statement of rights held against power: yes, and a fuller one than any national text of 1948.

Superiority over ordinary law: partly. The Covenants bind States in international law and article 27 of the Vienna Convention on the Law of Treaties forbids pleading internal law, but there is no international invalidation of a national statute.

Entrenchment: yes in form, since a treaty cannot be amended by one party, and no in substance, since a State may denounce some instruments and reserve to others.

A remedy: the weakest element. Committees receive communications and express views; execution depends on the State.

The honest conclusion: it is a bill of rights in content and in design, and an incomplete one in enforcement. Say that, and then say which of the four elements you would strengthen first.

What it does NOT mean

It is not a single document, and there is nothing to sign called the International Bill of Human Rights.

It is not universally binding as a whole. A State may be party to one Covenant and not the other.

And it did not spring from 1948. The name was in use before the Declaration and described a project that took until 1976 to become operative.

Quick revision

• Contents: UDHR 1948; ICESCR 1966 in force 3 January 1976; ICCPR 1966 in force 23 March 1976; the first Optional Protocol 1966 (individual communications); the Second Optional Protocol 1989 (death penalty); the Optional Protocol to the ICESCR 2008, in force 5 May 2013.
• The phrase predates the texts, used by the Commission from 1947 for a package of declaration, convention and implementation.
• Twenty-eight years to assemble, eighteen of them with a declaration and nothing else.
• The claim: one design, full coverage, and machinery. Enforcement is the weak element; committees express views, not judgments.

Test yourself

1. Name the instruments in the International Bill of Human Rights with their dates. The Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948 as resolution 217A (III). The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, both adopted on 16 December 1966 by resolution 2200A (XXI), which entered into force on 3 January 1976 and 23 March 1976 respectively. The Optional Protocol to the Civil and Political Covenant, adopted with its parent in 1966, which establishes the individual communications procedure before the Human Rights Committee. The Second Optional Protocol to that Covenant, adopted in 1989, aiming at abolition of the death penalty. And the Optional Protocol to the Economic, Social and Cultural Covenant, adopted in 2008 and in force on 5 May 2013, which gave the second Covenant its own complaints procedure forty-seven years after it was drafted. Older accounts of the Bill name only the first Protocol, since the later two did not then exist, but the Declaration and the two Covenants appear in every version.

2. Why is it accurate to say the name is older than the thing? Because the Commission on Human Rights used the expression international bill of rights from 1947 to describe the whole enterprise it had been asked to carry out, which was understood from the beginning as three connected pieces: a declaration of principles, a binding convention, and measures of implementation. Only the first piece was delivered in 1948. The convention took until 1966 and arrived as two instruments rather than one. The measures of implementation for civil and political rights arrived with the Optional Protocol in the same year, and for economic, social and cultural rights only in 2008, in force 2013. So for eighteen years the international order possessed a text called a declaration and nothing that could be invoked, and the name described an intention. Only when both Covenants entered into force within ten weeks of each other in 1976 did the phrase describe an operative body of law. That long interval is exactly why the debate about the Declaration's status as custom or as general principles mattered so much in practice.

3. Test the name against the four elements of a bill of rights. On content it passes comfortably: the three texts state rights held by individuals against power, and cover more ground than any national instrument of the period, with self-determination placed in front of both catalogues. On superiority over ordinary law it passes in part: the Covenants bind States as a matter of international law, and article 27 of the Vienna Convention on the Law of Treaties prevents a party from invoking its internal law as justification for failure to perform, but no international organ can invalidate a national statute. On entrenchment it passes in form, since no single party can amend a treaty and the substantive obligations are not at the mercy of an ordinary legislature, but the form is softened by reservations and, for some instruments, by denunciation. On remedy it is weakest: the treaty bodies receive communications where the State has accepted the procedure and express views that are authoritative interpretations but are not judgments, and execution depends on the State's own machinery. The fair conclusion is that it is a bill of rights in content and design and an incomplete one in enforcement.

Superiority is approximated by the rule that a State may not plead internal law to justify a breach.

Entrenchment is approximated by the difficulty of amending a treaty and by the concept of peremptory norms that no agreement may derogate from.

And remedy is approximated by treaty body procedures and regional courts, which is why [Regional Systems Compared] ends with a table of what each of them actually gives the individual.

Worked example

A State enacts a Charter of Rights as an ordinary statute, with a clause that any later Act inconsistent with the Charter is to be read down so far as possible, and a power in the highest court to declare an incompatibility that does not affect the validity of the impugned Act.

Element one: present. The Charter states rights against the State.

Element two: absent. An express later inconsistency prevails.

Element three: absent. The Charter can be amended by an ordinary majority.

Element four: present in a weakened form. The individual reaches a court and gets a declaration, not relief.

Conclusion: a statutory bill of rights, whose strength lies outside the text. Ask what has actually happened to declarations of incompatibility in that country, because the answer is the measure of the instrument.

What it does NOT mean

A long list of rights is not a bill of rights. The Soviet constitutions of 1936 and 1977 contained long catalogues without element four.

And a bill of rights is not a guarantee of good outcomes. [Challenges in the Effective Implementation of a Bill of Rights] is about the distance between the text and the life.

Quick revision

• Four elements: rights against public power; superiority over ordinary law; entrenchment against ordinary amendment; a remedy in the rights-holder's own hands.
• Element four is the discriminator. Test it first.
• Two families: entrenched (India, the United States, Germany, South Africa), where a court may invalidate; statutory (the United Kingdom's Human Rights Act 1998, New Zealand's Bill of Rights Act 1990), where a court may interpret compatibly and declare incompatibility only.
• The international order had element one alone in 1948, and approximates the others through the rule against pleading internal law, the difficulty of treaty amendment and peremptory norms, and treaty body and regional court procedures.

Test yourself

1. State the four elements and say which one decides. First, a statement of rights held by the individual against public power, addressed to the State and stating limits rather than conferring benefits. Second, superiority, so that ordinary legislation inconsistent with the rights is invalid and not merely criticised. Third, entrenchment, so that amendment needs more than the ordinary majority which the sitting government commands, preventing a temporary majority from removing constraints at the moment it finds them inconvenient. Fourth, an enforceable remedy in the hands of the person whose right is affected, so that the individual can go to a court, identify the violation and obtain relief. The fourth decides. The first three describe the law's content and status and can all be satisfied by a document that never changes anyone's position, as the long catalogues of rights in constitutions with no independent judiciary demonstrate. Only the fourth converts a statement about the law into law that a person can use, which is why the Universal Declaration, complete in the first element and diffuse in the second and third, needed the Covenants and their Protocols before the international order could claim to have a bill of rights at all.

2. Distinguish the entrenched from the statutory family, and say where the strength of the second lies. An entrenched bill of rights is part of a superior instrument, so a court finding a statute inconsistent with it may declare that statute invalid, and the bill can be amended only by the special procedure the constitution prescribes. India's Part III, read with article 32, is the clearest example, along with the United States, Germany and South Africa. A statutory bill of rights is an ordinary Act of the legislature: the courts are directed to read other legislation compatibly with it so far as possible, and where that is impossible the highest court may declare an incompatibility that leaves the impugned statute valid and in force, as under the United Kingdom's Human Rights Act 1998 and New Zealand's Bill of Rights Act 1990. On the four elements the statutory family satisfies the first and, in weakened form, the fourth, and satisfies neither the second nor the third. Its strength therefore lies outside the text, in the political convention that a declaration of incompatibility will be answered by amending legislation. That is a fact about the polity, and it can change without a word of the statute changing.

3. How does the international order approximate the elements it cannot have? It has no legislature that enacts superior law, no single hierarchy of norms in the domestic sense, and no court of compulsory general jurisdiction, so each element is approached by a substitute. Superiority is approximated by the rule, codified in article 27 of the Vienna Convention on the Law of Treaties, that a party may not invoke the provisions of its internal law as justification for failure to perform a treaty; the national statute is not invalidated, but it is no defence. Entrenchment is approximated in two ways: a treaty cannot be amended by one party acting alone, and the category of peremptory norms marks out rules from which no agreement may derogate at all. Remedy is approximated by the individual communications procedures of the treaty bodies, which produce views rather than judgments, and by the regional courts, whose judgments do bind the respondent State. The result is a bill of rights that is complete in content, partial in status, and strongest in remedy exactly where a regional court exists.

The Bill of Rights of 1791, the first ten amendments, gave the United States Constitution a list, and the Constitution's own supremacy clause gave it element two.

Marbury v Madison (1803) supplied element four by holding that a court may refuse to apply a statute repugnant to the Constitution.

1789: universality

The French Declaration of the Rights of Man and of the Citizen states that men are born and remain free and equal in rights, that the aim of every political association is the preservation of the natural and imprescriptible rights of man, and that these are liberty, property, security and resistance to oppression.

What it added is the addressee. Where the English documents spoke to Englishmen and the American ones to a people constituting itself, this one speaks about man as such. That is the direct ancestor of the word universal in 1948.

And it added the limitation clause. Liberty consists in being able to do anything that does not harm others, and its limits may be determined only by law. Every limitation clause in every modern instrument is descended from that sentence.

The additions, in order

1215: the ruler is under law. 1689: the legislature sets the limits, and some limits are rights. 1776: rights precede the State and bind the legislature too. 1789: rights belong to man as such, and are limited only by law. 1948: all of it, addressed to every State at once, in [Drafting the Universal Declaration].

Worked example

Asked to trace the ancestry of article 9 of the Civil and Political Covenant, which forbids arbitrary arrest and requires prompt production before a judge:

1215 supplies the core, that no free man be imprisoned except by the lawful judgment of his peers or by the law of the land.

1689 supplies the bail limb, since excessive bail ought not to be required.

1791 supplies the procedural detail through the Fourth and Fifth Amendments and the suspension clause protecting habeas corpus.

1789 supplies the universal addressee, so that the right belongs to the person and not to the subject of a particular Crown.

And 1966 supplies what none of them had: an enforceable compensation clause and an international procedure.

That is the shape of a good answer on this topic: not four paragraphs of description, but one line of descent per element of the modern right.

What it does NOT mean

Magna Carta was not a bill of rights. It was a feudal settlement with two clauses of lasting general effect.

And the sequence is not a march of progress. The French Declaration of 1789 was followed by the Terror, and the American Bill of Rights coexisted with slavery for seventy-four years. [Abolition, and the First International Concern] deals with that.

Quick revision

• 1215 Magna Carta: no free man taken or imprisoned except by the lawful judgment of his peers or by the law of the land, and right or justice will not be sold, denied or delayed. Adds: the ruler is under law. Estates, not persons.
• 1689 Bill of Rights: no suspending or dispensing power, no taxation or standing army without Parliament, petition, free elections, freedom of speech in Parliament, no excessive bail or fines and no cruel and unusual punishments. Adds: the legislature sets the limits. No superiority.
• 1776: unalienable rights, government instituted to secure them with consent of the governed; Virginia Declaration a fortnight earlier; 1791 ten amendments; Marbury v Madison (1803) adds judicial review. Adds: rights precede the State.
• 1789 France: born and remain free and equal in rights; liberty, property, security and resistance to oppression; limits determined only by law. Adds: universality, and the ancestor of every limitation clause.

Test yourself

1. What did Magna Carta actually add, and what is commonly claimed for it that it will not bear? It added the proposition that the ruler is under law and that those subject to him may hold him to it, embodied in the two clauses that outlived the rest: that no free man shall be taken, imprisoned, dispossessed, outlawed, exiled or in any way destroyed, nor will the King go upon him, save by the lawful judgment of his peers or by the law of the land; and that to no one will right or justice be sold, denied or delayed. Those two supply the ancestry of due process and of access to justice. What it will not bear is the claim to be a bill of rights or a charter of liberty for all. It was a peace treaty between King John and his barons, written in Latin and largely concerned with feudal incidents such as wardship, relief and scutage; it was annulled by Pope Innocent III within ten weeks; and its beneficiary, the free man, excluded the villeins who were the majority of the population. It speaks of estates, not of persons, and it contains nothing of superiority, entrenchment or an individual remedy.

2. Why is 1776 the decisive year in the sequence? Because it relocated the source of rights. The English documents of 1215 and 1689 extracted limits from a ruler and vested the power to set them in Parliament, which left the rights dependent on the body that granted them; Parliament could repeal the Bill of Rights the day after passing it. The American Declaration of Independence asserted instead that all men are created equal and are endowed with certain unalienable rights, that governments are instituted among men to secure these rights, and that they derive their just powers from the consent of the governed. If rights precede the State, they are not the State's to withdraw, and the legislature is bound by them as much as the executive. That claim is what makes an entrenched bill of rights conceivable, and the United States supplied the remaining machinery in two steps, adding the first ten amendments in 1791 and, in Marbury v Madison in 1803, the power of a court to refuse to apply a statute repugnant to the Constitution. The Virginia Declaration of Rights, adopted in June 1776, had already put the claim into an operative instrument.

3. What does the French Declaration of 1789 contribute that the earlier documents do not? Two things. The first is universality of address. Magna Carta spoke to the free men of England, the Bill of Rights of 1689 to the subjects of the English Crown, and the American documents to a particular people constituting itself as a State. The French Declaration speaks about man as such: men are born and remain free and equal in rights, and the aim of every political association is the preservation of the natural and imprescriptible rights of man, namely liberty, property, security and resistance to oppression. That is the direct ancestor of the word universal in the title of the 1948 Declaration. The second contribution is the modern limitation clause. By providing that liberty consists in being able to do anything that does not harm others, and that its limits may be determined only by law, it introduced the structure that every later instrument uses: a right stated broadly, then a defined power to restrict it, exercisable only by law and only for stated purposes. Article 29 of the Universal Declaration and the limitation clauses of both Covenants are that sentence in modern dress.

Article 226 gives the High Courts a wider writ jurisdiction, reaching legal rights as well as fundamental ones.

The four articles the syllabus names

Article 14: the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. It runs to any person, not only citizens, and it is the article that answers to article 26 of the Civil and Political Covenant.

Article 19(1) gives citizens six freedoms: speech and expression; assembly peaceably and without arms; association or unions; free movement throughout the territory; residence and settlement; and practice of any profession, occupation, trade or business. Article 19(2) to (6) allows reasonable restrictions on stated grounds, and the word reasonable imports judicial scrutiny of proportionality.

Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law. Maneka Gandhi v Union of India (1978) held that the procedure must be right, just and fair, and not arbitrary, fanciful or oppressive, which converted a procedural guarantee into the source of a large body of substantive rights.

Article 32, above.

How it compares with the international instruments

Part III is stronger on remedy and narrower on content.

Stronger: article 32 gives a direct route to the apex court, where the Covenants give a communication to a committee whose views are not binding.

Narrower: economic and social rights sit mainly in Part IV as non-justiciable directive principles, whereas the Economic, Social and Cultural Covenant treats them as obligations.

The gap has been narrowed by interpretation and not by amendment. Article 21 has been read to include livelihood, shelter, health, a clean environment and education, and article 21A now guarantees free and compulsory education for children between six and fourteen.

Worked example

A statute bars persons without a certain qualification from a trade, and the bar falls disproportionately on one community.

Article 19(1)(g) is engaged, and the State must bring the law within article 19(6) as a reasonable restriction in the interests of the general public, which is a proportionality question, not a rationality one.

Article 14 is engaged separately, and after the Maneka line an arbitrary classification fails equality regardless of the trade freedom.

Article 21 may be engaged if the trade is the person's livelihood.

And article 32 is the route, because a fundamental right is asserted.

Note the sequence. Identify the right, then the express restriction clause, then the standard of scrutiny that the word reasonable imports, then the forum.

What it does NOT mean

Part III is not suspended by an emergency as a whole. Article 359 permits suspension of the right to move a court for enforcement of specified rights, and after the Forty-fourth Amendment articles 20 and 21 are outside that power.

And article 32 is not a general appeal. It lies for enforcement of fundamental rights, and a claim of illegality alone belongs under article 226.

Quick revision

• Element one: articles 12 to 35; article 12 defines the State to include local or other authorities; only 15(2), 17, 23 and 24 bind private persons.
• Element two: article 13(1) voids inconsistent pre-Constitution law; 13(2) voids any law that takes away or abridges the rights.
• Element three: article 368, plus Kesavananda Bharati v State of Kerala (1973), basic structure.
• Element four: article 32 is itself a fundamental right, with the five writs, not suspendable except as the Constitution provides; article 226 is wider in the High Courts.
• 14 equality, to any person. 19 six freedoms with reasonable restrictions. 21 life and personal liberty, and Maneka Gandhi v Union of India (1978): procedure must be right, just and fair. 32 the remedy.

Test yourself

1. Show that Part III satisfies all four elements of a bill of rights. On the first, articles 12 to 35 state rights held by individuals against public power, with article 12 defining the State widely enough to include local or other authorities within the territory of India or under the control of the Government of India, and four articles, 15(2), 17, 23 and 24, reaching private conduct as well. On the second, superiority is in the text: article 13(1) makes pre-Constitution laws void to the extent of their inconsistency with Part III, and article 13(2) forbids the State to make any law taking away or abridging the rights and makes such a law void to the extent of the contravention, so India did not need to derive judicial review from a supremacy clause as the United States did. On the third, article 368 prescribes a special amendment procedure, and Kesavananda Bharati v State of Kerala in 1973 added a substantive limit by holding that the amending power cannot destroy the basic structure, which places some content beyond any majority. On the fourth, article 32(1) makes the right to move the Supreme Court for enforcement of Part III rights itself a guaranteed right, article 32(2) arms the Court with the five writs, and article 32(4) forbids suspension except as the Constitution provides.

2. Why is article 32 the most striking of the four? Because in most constitutions the remedy is an inference or a separate jurisdictional provision, whereas here the remedy is itself one of the rights. Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, so a law or executive act obstructing access to the Court is not merely a procedural obstacle but a violation of a fundamental right in its own terms. Article 32(2) supplies the instruments, empowering the Court to issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari, and article 32(4) provides that the right shall not be suspended except as otherwise provided for by the Constitution. Dr Ambedkar described the article as the heart and soul of the Constitution for this reason. The practical consequence is that the strongest of the four elements in the Indian instrument is the one that is weakest in the international instruments, where the individual reaches a committee that issues views rather than a court that issues orders.

3. Where does Part III fall short of the international instruments, and how has the gap been managed? Its content is narrower on the economic and social side. The rights to work, to social security, to an adequate standard of living, to health and to education are obligations under the Economic, Social and Cultural Covenant, but in the Constitution most of that ground lies in Part IV as directive principles, which article 37 declares fundamental in the governance of the country and not enforceable by any court. The gap has been managed almost entirely by interpretation rather than amendment. After Maneka Gandhi v Union of India in 1978 required that any procedure depriving a person of life or personal liberty be right, just and fair rather than merely enacted, article 21 became the vehicle through which livelihood, shelter, health, a clean environment and education were brought within judicial protection, with the directive principles used as the interpretive guide. The one structural change is article 21A, which makes free and compulsory education for children between six and fourteen a fundamental right in terms. The technique is powerful and it has a cost, since a right created by construction can be narrowed by construction.

Six: knowledge

A right nobody knows about is not exercised, and a right the police do not know about is not respected.

This is why human rights education appears in the instruments as an obligation and not as a pious hope, in the Declaration's preamble and article 26(2) and in the Vienna Declaration.

Which of them a text can cure

This is the discriminating part of the answer.

Curable by drafting: obstacle three entirely, obstacle four largely, and obstacle two in part through express provision for interim relief and compensation.

Curable only by institutions: obstacle one, which needs a real appointments process, security of tenure and financial autonomy.

Curable only by policy over time: obstacle five.

Curable by both: obstacle six, since a text may impose a duty of education but only a programme delivers it.

A candidate who writes six obstacles and stops has answered half the question. The examiner asked about effective implementation, which is an invitation to say what would work.

Worked example

A State has an entrenched bill of rights, an independent apex court, and no legal aid; its emergency clause allows suspension of all rights on the executive's own declaration; and its free expression clause permits restriction in the public interest.

Obstacle one is present in its reachability half only. The court is independent and unreachable.

Obstacle three is acute. "In the public interest" is an open grant, and the answer is to replace it with a closed list plus a necessity test.

Obstacle four is acute. There is no non-derogable core and no external check on the declaration.

Priority order for reform: the emergency clause first, because it can extinguish everything else overnight; then the limitation clause; then legal aid.

What it does NOT mean

These are not arguments against having a bill of rights. The comparison is not with a perfect instrument but with a State whose limits are set by the government of the day.

And the obstacles are not peculiar to poor States. Obstacle three is a drafting failure available to anyone, and obstacle four has produced its worst results in States with long constitutional traditions.

Quick revision

• Six obstacles: the court (independence and reachability); the remedy (delay and non-execution); drafting (broad rights, open limitation clauses); emergency; resources; knowledge.
• Emergency safeguards, four: defined threshold, formal proclamation, a non-derogable list, time limits with review.
• Resources technique: minimum core plus non-retrogression.
• Say which a text can cure: drafting fully, emergency largely, remedy partly; independence needs institutions, resources need policy, knowledge needs both.
• India: 1975 to 1977, and the Forty-fourth Amendment putting articles 20 and 21 beyond article 359.

Test yourself

1. Set out the six obstacles to the effective implementation of a bill of rights. First, the court: the fourth element of a bill of rights is worth only what the institution supplying it is worth, so executive control of appointments, the use of transfers as discipline, contempt powers turned against criticism, or dependence for budget all hollow out a formal remedy, and even an independent court is useless to a claimant who cannot reach it for reasons of distance, language or cost. Second, the remedy itself: delay defeats the right, since an order quashing a detention after the detention has run its course vindicates the law and not the person, and non-execution defeats it twice by teaching the population that the instrument is decorative. Third, drafting: a broadly stated right paired with an open-ended limitation clause leaves the right at the mercy of the ordinary legislature. Fourth, emergency: every workable bill of rights provides for its own partial suspension, and without safeguards that provision becomes the route by which the whole is set aside. Fifth, resources, because rights requiring expenditure cannot be conjured by an order. Sixth, knowledge, since a right the holder has never heard of is not exercised and one the police have never heard of is not respected.

2. Which of the six can a better text cure, and which cannot? Drafting is curable by text alone and completely: narrow the grounds of limitation to a closed list, require that any restriction be prescribed by law and necessary in a democratic society for one of those grounds, and place the burden of justification on the State. Emergency is largely curable by text, through the four safeguards of a defined threshold, a formal proclamation, an express list of rights beyond the reach of derogation, and time limits with legislative or judicial review of both the declaration and the measures taken under it. The remedy is partly curable, since a text can provide expressly for interim relief, for compensation, and for a duty on public authorities to give effect to orders. Independence is not curable by the rights text at all: it needs a real appointments process, security of tenure, and financial autonomy, which are structural provisions elsewhere in the constitution and, more importantly, a political practice. Resources are not curable by text either, only by policy over time, with courts confined to enforcing a minimum core and preventing retrogression. Knowledge needs both, since a text can impose a duty of human rights education but only a sustained programme delivers it.

3. What are the four safeguards on an emergency clause, and what does the Indian experience add? The threshold must be defined and severe, so that the clause is available only for a genuine crisis such as a public emergency threatening the life of the nation, and not for ordinary difficulty. The invocation must be formally proclaimed, which creates a dated public act that can be challenged and reviewed rather than a silent suspension. A list of rights must be placed beyond the reach of derogation altogether, as article 4(2) of the Civil and Political Covenant does for life, torture, slavery and servitude, contractual debt imprisonment, retroactivity, legal personality, and thought, conscience and religion. And there must be limits of time and of scope, with the proclamation and the measures taken under it reviewable. The Indian experience of 1975 to 1977 shows what the absence of the third safeguard costs, since the effect of the proclamation under article 359 was to bar even applications concerning life and personal liberty. The Forty-fourth Amendment answered exactly that, placing articles 20 and 21 outside the suspending power, which is the domestic version of a non-derogable list.

The threshold is incitement, not offence. Advocacy that is merely insulting is protected by article 19; advocacy that constitutes incitement must be prohibited under article 20 and is a restriction that satisfies article 19(3) because it protects the rights of others.

The same right in the other instruments

European Convention, article 10 protects freedom of expression including freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers, and its second paragraph is the longest limitation clause in the Convention, adding territorial integrity, the prevention of disorder or crime, the protection of the reputation or rights of others, preventing disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary.

Article 10 expressly preserves State licensing of broadcasting, television or cinema enterprises, which the Covenant does not.

American Convention, article 13 is the strongest text of the four. It forbids prior censorship except for regulating access to public entertainments for the moral protection of childhood and adolescence, and it forbids indirect restriction, naming the abuse of government or private controls over newsprint, radio frequencies and equipment.

African Charter, article 9 is the weakest text. Every individual has the right to receive information and to express and disseminate opinions within the law, which appears to leave the standard to the national legislature.

A comparison question is answered by these four features: the closed list in the Covenant, the longer list and the licensing proviso in Europe, the ban on prior censorship and on indirect restriction in the Americas, and the clawback in Africa. [Regional Systems Compared] carries the comparison across all the rights.

Why it belongs in a paper on the order

Because "regardless of frontiers" is a claim about the international order itself. It makes the transmission of information across borders a matter of right, which is why jamming, blocking and the expulsion of foreign correspondents are treated as violations and not merely as unfriendly acts.

And because expression is the enabling right. Assembly, association, participation under article 25, and the whole machinery of reporting and communications depend on people being able to say what has happened to them. [Non-Governmental Organizations as a Protection Mechanism] rests on this.

Worked example

A State makes it an offence to publish information that "tends to bring the government into disrepute", and prosecutes a journalist who reported a procurement scandal.

Provided by law: the phrase is imprecise and confers unfettered discretion, so the restriction fails at limb one.

Legitimate aim: the reputation of the government is not on the list. The rights or reputations of others protects persons, not institutions, so it fails at limb two as well.

Necessary: even if a national security interest were asserted, prosecution of a reporter on true facts about public spending is not the least intrusive means and is not proportionate, so it fails at limb three.

The answer runs the three limbs and finds a failure at each, and then notes the aggravating feature: the offence targets criticism of authority, which is the core of what article 19 protects.

What it does NOT mean

Article 19 does not protect opinion and expression equally. Opinion is absolute; expression is qualified by paragraph 3.

And the phrase "special duties and responsibilities" does not create a free-standing power to restrict. It explains why paragraph 3 exists; the restriction must still pass all three limbs.

Quick revision

• UDHR 19: hold opinions without interference; seek, receive and impart information and ideas through any media and regardless of frontiers.
• ICCPR 19(1) opinion, unqualified. 19(2) expression, of all kinds, orally, in writing, in print, in the form of art, or any other media. 19(3): special duties and responsibilities; restrictions only provided by law and necessary for the rights or reputations of others, national security, public order, public health or morals.
• Three-part test: provided by law, listed aim (closed list), necessary (proportionate, least intrusive).
• Article 20: war propaganda and advocacy of hatred constituting incitement shall be prohibited by law. Threshold is incitement, not offence.
• ECHR 10 longest limitation clause plus a licensing proviso; ACHR 13 no prior censorship, and no indirect restriction through newsprint or frequencies; African Charter 9 within the law.

Test yourself

1. Set out article 19 of the Covenant and explain the asymmetry between its paragraphs. Paragraph 1 provides that everyone shall have the right to hold opinions without interference. Paragraph 2 provides that everyone shall have the right to freedom of expression, which includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Paragraph 3 provides that the exercise of the rights in paragraph 2 carries with it special duties and responsibilities and may therefore be subject to certain restrictions, but only such as are provided by law and are necessary for respect of the rights or reputations of others, or for the protection of national security, public order, public health or morals. The asymmetry is that paragraph 3 attaches only to paragraph 2. Holding an opinion is therefore protected absolutely: a State may not require adherence to an ideology, penalise a belief, or make an opinion itself an offence, and no emergency or public interest justification is available, since article 19 as a whole is not on the article 4(2) non-derogable list but paragraph 1 contains no internal limitation at all.

2. Apply the three-part test to a law criminalising publication that brings the government into disrepute. The first limb asks whether the restriction is provided by law, which requires more than a statute on the books: the rule must be accessible and formulated with enough precision for a person to regulate his conduct, and must not confer unfettered discretion on those enforcing it. A phrase such as tends to bring the government into disrepute fails, because nobody can predict its application and everything depends on the enforcer. The second limb asks whether the restriction serves one of the aims on a closed list, and the reputation of a government is not among them: the rights or reputations of others protects persons, and national security is not engaged by criticism of spending. The third limb asks whether the measure is necessary, which requires proportionality and the least intrusive instrument capable of achieving the aim, and criminal prosecution of a journalist for accurate reporting on public procurement is neither. The law therefore fails at every limb, and the aggravating feature is that it targets precisely the criticism of authority which article 19 exists to protect.

3. Compare the four instruments on this right. The Covenant states the right broadly and closes the list of permissible aims at five, which is its principal discipline on the State. The European Convention's article 10 protects the same freedom but attaches the longest limitation clause in that Convention, adding territorial integrity, the prevention of disorder or crime, preventing the disclosure of information received in confidence, and maintaining the authority and impartiality of the judiciary, and it expressly preserves the power of States to require the licensing of broadcasting, television or cinema enterprises, a proviso with no counterpart in the Covenant. The American Convention's article 13 is the strongest of the four: it forbids prior censorship outright, subject only to the regulation of access to public entertainments for the moral protection of childhood and adolescence, and it forbids indirect restriction, naming the abuse of government or private controls over newsprint, radio broadcasting frequencies and equipment, which addresses economic strangulation as well as legal prohibition. The African Charter's article 9 is the weakest, since the right to express and disseminate opinions is stated to exist within the law, a clawback that on its face returns the standard to the national legislature.

The public interest override is the important feature. Information otherwise exempt must be disclosed if the public interest in disclosure outweighs the harm to the protected interest, and most of the exemptions cannot be used to withhold information that could not be denied to Parliament or a State Legislature.

The constitutional root is earlier than the Act. The Supreme Court derived a right to know from article 19(1)(a) well before 2005, and the Act gives that right machinery rather than creating it.

Why the paper wants it

Because the international order runs on reporting, and reporting runs on information. Every treaty body's periodic review, every Universal Periodic Review submission, and every non-governmental shadow report is an exercise of the right to know applied to a State's own conduct. [Reporting, and Concluding Observations] and [Non-Governmental Organizations as a Protection Mechanism] both depend on it.

And because "regardless of frontiers" makes it international. A domestic secrecy law that blocks information about a State's conduct abroad restricts a right the treaty protects across borders.

Worked example

A citizen asks for the file on the award of a road contract. The authority refuses, citing commercial confidence and an ongoing investigation.

Commercial confidence is an available exemption, and it is subject to the public interest override, so the authority must weigh the harm to the third party against the public interest in knowing how public money was spent.

The investigation exemption protects the process of investigation and prosecution, not the existence of the file, so it cannot justify a blanket refusal.

Severance is required, since where part of a record is exempt the remainder that can reasonably be severed must be provided.

And the burden lies on the authority, which must show that the denial was justified.

The structure of the answer: identify the exemption claimed, ask whether it fits, apply the override, require severance, and place the burden.

What it does NOT mean

It is not a right to be told anything by anyone. It runs against public bodies and, where a regime so provides, against bodies substantially financed by public funds.

And it is not absolute. Privacy is a competing right, and disclosure of personal information with no relation to public activity is a violation of article 17 of the Covenant, not a vindication of article 19.

Quick revision

• Derivation: the word seek in article 19 of the Declaration and the Covenant, plus the democratic, instrumental and accountability arguments.
• Stated in terms: ACHR article 13 as read by the Inter-American Court; Aarhus Convention 1998 for environmental information; UN Convention against Corruption 2003 on transparency.
• India: Right to Information Act 2005; suo motu publication; thirty days, forty-eight hours for life or liberty; two appeals, the second to an Information Commission; a closed list of exemptions with a public interest override and the Parliament test; severance; burden on the authority.
• The constitutional root precedes the Act, in article 19(1)(a).
• Limits: runs against public bodies; privacy under article 17 is the competing right.

Test yourself

1. Derive the right to know from the text, and say why the derivation matters. The textual root is the word seek in article 19 of both the Universal Declaration and the Civil and Political Covenant, each of which protects the freedom to seek, receive and impart information and ideas. Receive on its own would protect only a person's ability to take in what someone else chooses to send, so a State could satisfy it by not jamming broadcasts. Seek points outward at whoever holds the information and converts a liberty into a claim addressed to a holder, which is what an access regime is. Three functional arguments complete the derivation: the democratic one, since article 25 guarantees a genuine choice at periodic elections and a vote cast in ignorance of what the government did is not genuine; the instrumental one, since no other right can be enforced without facts about the decision complained of; and the accountability one, since secrecy is the condition in which misuse of public power survives. The derivation matters because the right is nowhere stated in terms in the Bill, so an answer that merely defines it has skipped the question the examiner asked.

2. Describe the working of the Indian Act. The Right to Information Act 2005 obliges every public authority to maintain its records in a manner facilitating access and to publish specified categories of information on its own motion, so that citizens need to ask for less. A citizen may make a request without giving reasons; a Public Information Officer must dispose of it, ordinarily within thirty days, and within forty-eight hours where the information concerns the life or liberty of a person. Refusal must state the exemption relied on and the appeal route. Two appeals lie, the first internally to a senior officer and the second to the Central or State Information Commission, which can order disclosure and impose a penalty on an officer who refused without reasonable cause. The exemptions cover sovereignty and integrity, security and foreign relations, contempt of court, breach of privilege, commercial confidence, fiduciary relationships, confidences received from foreign governments, danger to life or safety, impediment to investigation, cabinet papers, and personal information without public interest. Two features do the real work: information otherwise exempt must be disclosed where the public interest in disclosure outweighs the protected harm, and exempt portions must be severed so the rest is supplied.

3. How does the right to know connect to the international order rather than only to domestic administration? In three ways. First, article 19 protects the freedom to seek information regardless of frontiers, so a restriction on obtaining information about a State's conduct abroad, or on transmitting it outward, engages the treaty right directly and is not a purely internal matter. Second, the supervisory machinery of the order is built on information: periodic reporting to the treaty bodies, the national report and the stakeholder submissions in the Universal Periodic Review, the country visits of special procedures, and the shadow reports of non-governmental organisations all consist of information about State conduct, and a State that can lawfully conceal that information disables the machinery without breaching any reporting obligation on its face. Third, the right supplies the evidentiary basis for individual complaints, since a communication alleging discrimination or an unexplained death depends on records the State holds. That is why access to information appears in the anti-corruption convention as a transparency obligation and in the environmental field as a treaty right with fixed time limits and review, rather than being left to domestic policy.

Four: the third generation lacks identifiable holders and duty-bearers, which makes it hard to convert into a right in the strict sense. This is the argument [The New International Economic Order Assessed Today] weighs.

What replaced it

The Vienna Declaration of 1993, paragraph 5: all human rights are universal, indivisible and interdependent and interrelated, and the international community must treat them globally in a fair and equal manner, on the same footing, and with the same emphasis.

Indivisible answers the hierarchy. Interdependent answers the false division of duties. On the same footing answers the deferral. [Universality, and What Vienna Settled] takes the paragraph apart.

The generations survive as vocabulary because they are useful shorthand, and an examiner who asks about them expects both the scheme and the correction.

Worked example

Asked whether the right to a healthy environment is a human right, use the scheme to structure the answer rather than to decide it.

As a third-generation claim, it has a holder that is hard to identify, a duty-bearer that is the whole community, and no individual remedy.

As a first-generation claim, it is enforceable now, because environmental harm reaches life under article 6, home and private life under article 17, and health under article 12 of the other Covenant.

As a second-generation claim, article 12(2)(b) already requires the improvement of all aspects of environmental and industrial hygiene.

Conclusion: the substance is protected through the first two generations while the third supplies the framing. That is the pattern for every solidarity right, and saying so shows you understand what the scheme is for.

What it does NOT mean

The generations are not chronological. They are thematic, and the chronology does not fit.

And they are not degrees of bindingness. A treaty obligation is a treaty obligation whichever generation the right is assigned to.

Quick revision

• Karel Vasak, 1977, from liberty, equality, fraternity.
• First: civil and political; restraint; individual holder; judicial enforcement; ICCPR.
• Second: economic, social and cultural; provision; ICESCR; roots in the ILO from 1919 and the Mexican and Weimar constitutions.
• Third: solidarity rights, development, peace, environment, common heritage, communication, humanitarian assistance; holder is a people or humanity; duty on the international community.
• What each asks of other States: tolerate, assist (ICESCR article 2(1)), restructure.
• Four criticisms: false history; invites hierarchy; misdescribes duties; no identifiable holder or duty-bearer in the third.
• Answer: Vienna 1993, paragraph 5: universal, indivisible and interdependent and interrelated, on the same footing and with the same emphasis.

Test yourself

1. Set out the three generations with their content, duty and treaty form. The first generation is liberty: the civil and political rights, whose principal duty is restraint by the State, whose holder is the individual, whose characteristic enforcement is judicial, and whose treaty form is the International Covenant on Civil and Political Rights of 1966. The second is equality: the economic, social and cultural rights, whose principal duty is provision, whose enforcement runs through budgets and administration as much as through courts, whose historical source is the labour movement of the nineteenth century together with the Mexican Constitution of 1917 and the Weimar Constitution of 1919, and whose treaty form is the International Covenant on Economic, Social and Cultural Rights. The third is fraternity: the solidarity rights, including development, peace, a healthy environment, the common heritage of mankind, communication and humanitarian assistance, whose holder is usually a people or humanity as a whole rather than an individual, and whose duty-bearer is the international community. Karel Vasak proposed the scheme in 1977, taking the three terms from the motto of the French Revolution, and he offered it as an exposition rather than as a ranking.

2. What does each generation demand of States other than the one where the right-holder lives? The first demands very little: the obligation is owed by each State to those within its territory and subject to its jurisdiction, and the only genuinely outward-facing demands are that other States not shelter those responsible for the gravest violations and that they co-operate in extradition and, for some offences, exercise universal jurisdiction. The second demands co-operation in terms, since article 2(1) of its Covenant requires each State to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources. The third demands structural change, because no amount of good behaviour by a single State satisfies a right to development: the claim is against the terms of trade, the flow of technology, the rules of finance and the distribution of decision-making power in international institutions. Read this way the generations form a ladder of demands on the order itself, running from tolerate to assist to restructure, and that ladder is why the third generation is the contested one and why it belongs in the module on the international economic order.

3. State the criticisms of the scheme and the answer Vienna gave. The first criticism is historical: the generations did not arrive in sequence, since the International Labour Organization was producing binding second-generation standards from 1919, before any general civil and political treaty existed, and the Universal Declaration of 1948 states both categories in a single text with no seam. The second is that the numbering invites a hierarchy, and States have used it to treat economic and social rights as aspirations to be reached later and third-generation claims as rhetoric. The third is analytical: the division between duties of restraint and duties of provision does not hold, since a fair trial requires courts, judges, interpreters and legal aid, all of which cost money, while much of the right to food is satisfied by not destroying crops and not obstructing markets. The fourth is that the third generation lacks an identifiable right-holder and an identifiable duty-bearer, which makes it difficult to treat as a right in the strict sense. Paragraph 5 of the Vienna Declaration of 1993 answers the first three by declaring all human rights universal, indivisible and interdependent and interrelated, and requiring the international community to treat them globally in a fair and equal manner, on the same footing and with the same emphasis.

External and internal

External self-determination is the choice of political status in relation to other States, and outside the colonial context it is tightly constrained by territorial integrity.

Internal self-determination is a people's continuing right to determine its political status within an existing State, which connects to article 25's guarantee of participation in the conduct of public affairs.

The safeguard clause in Resolution 2625 is the bridge between them, and it is the textual basis for the argument that a people denied internal self-determination by a government that does not represent it may have a remedial external claim. That argument has never been accepted by a court as establishing a general right of secession.

The consequences for the order

Decolonisation. The membership of the United Nations roughly trebled, and the new majority produced the instruments in Module IV: the permanent sovereignty resolutions, the New International Economic Order and the Right to Development.

Permanent sovereignty over natural resources. Article 1(2) is the treaty form of General Assembly resolution 1803 (XVII) of 1962, and it is the provision on which [What the New International Economic Order Was] rests.

The obligation on third States. Article 1(3) is unusual because it requires every party to promote the realisation of a right in territories it does not administer, which is the first-generation exception to the rule that obligations look inward.

The remedy problem

The Human Rights Committee has consistently held that a communication under the Optional Protocol cannot be founded on article 1, because the Protocol is open to individuals claiming to be victims and article 1 confers a right on peoples.

The practical answer has been article 27, the minorities provision, and article 25, through which the substance of internal self-determination reaches the Committee in the form of individual claims about culture, language and participation.

And in the International Court of Justice, the right has been treated as an obligation owed to all, which is why proceedings about it can be brought by States with no special interest.

Worked example

A group within a State claims independence, alleging exclusion from government and expropriation of the minerals under its land.

Is it a "people"? The term is undefined in both Covenants, and the objective markers of shared history, language, culture and territory are combined in practice with a subjective sense of identity.

External self-determination is available in the colonial and analogous contexts, and outside them territorial integrity ordinarily prevails.

Internal self-determination is the stronger claim on these facts: exclusion from government engages article 25, and cultural and linguistic exclusion engages article 27.

Article 1(2) supports the minerals claim directly, since a people may freely dispose of its natural wealth and in no case be deprived of its means of subsistence.

But the forum is the problem. No individual communication lies on article 1, so the claim must be pleaded through articles 25, 26 and 27.

That is the model answer: substance under article 1, remedy under the individual rights.

What it does NOT mean

It is not a general right of secession. Resolution 2625 expressly preserves the territorial integrity of States conducting themselves in compliance with the principle.

And it is not exhausted by independence. The internal aspect continues after decolonisation, which is why the right still does work in States that were never colonies.

Quick revision

• Identical article 1 in both Covenants, placed before the obligation clauses.
• 1(1) all peoples freely determine political status and freely pursue economic, social and cultural development. 1(2) freely dispose of natural wealth and resources, without prejudice to obligations from international economic co-operation based on mutual benefit, and in no case deprived of its own means of subsistence. 1(3) administering States shall promote and respect.
• Charter articles 1(2) and 55: a principle in 1945. Resolution 1514 (XV), 1960: a right, and unpreparedness is no pretext for delay. 1541 (XV): independence, free association, integration. 2625 (XXV), 1970: the representative government safeguard clause.
• External and internal; the safeguard clause is the bridge; no general right of secession.
• No individual communication lies on article 1, since the Protocol is for individuals; plead articles 25, 26 and 27 instead. In the International Court it is an obligation owed to all.

Test yourself

1. Quote the substance of article 1 and explain why it is identical in both Covenants. Paragraph 1 provides that all peoples have the right of self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development. Paragraph 2 provides that all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation based upon the principle of mutual benefit and international law, and that in no case may a people be deprived of its own means of subsistence. Paragraph 3 requires States Parties, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, to promote the realisation of the right and to respect it in conformity with the Charter. It is identical in both because the drafters regarded the division of the catalogue into two treaties as a matter of machinery rather than of principle, and placing the same article at the head of each was their way of saying so. The placement is equally deliberate: it stands in Part I of each Covenant, before the obligation clauses and before every substantive right, because a people whose political status is settled elsewhere cannot secure any of the rights that follow.

2. Trace the movement from principle to right. The Charter of 1945 names the principle twice, in article 1(2) as a purpose of the Organization, to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and again in article 55 as the basis of economic and social co-operation. But Chapters XI and XII created duties for administering powers, including the obligation in article 73 to develop self-government and to transmit information, without conferring a right on the inhabitants. The change becomes explicit in General Assembly resolution 1514 (XV) of 1960, which declares that all peoples have the right to self-determination and that inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. Resolution 1541 (XV) of the same year supplied the three lawful outcomes of emergence to a full measure of self-government: independence, free association with an independent State, or integration with an independent State, the second and third requiring a free and informed choice. Resolution 2625 (XXV) of 1970 restated the right for all peoples and added the clause preserving the territorial integrity of States conducting themselves in compliance with the principle and possessed of a government representing the whole people without distinction. The Covenants of 1966 made it a treaty obligation.

3. Why is article 1 a right without an individual remedy, and what is done about it? Because the Optional Protocol to the Civil and Political Covenant admits communications from individuals who claim to be victims of a violation of a right set forth in the Covenant, and article 1 confers its right on peoples rather than on individuals. The Human Rights Committee has therefore consistently held that a communication cannot be founded on article 1, however strong the underlying grievance, which produces the odd result that the article the drafters placed first is the one article the individual complaints machinery cannot reach. Three responses have developed. Claims are pleaded instead under article 25, which guarantees every citizen the right and the opportunity to take part in the conduct of public affairs, under article 26's free-standing equality guarantee, and under article 27, which protects persons belonging to ethnic, religious or linguistic minorities in enjoying their culture, professing their religion and using their language, so that the substance of internal self-determination arrives in an individual form. The reporting procedure addresses article 1 directly, since States must report on it. And before the International Court of Justice the right has been treated as an obligation owed to the international community as a whole, so its enforcement there does not depend on individual standing at all.

Five: Chapter VII. From the 1990s the Security Council has repeatedly determined that internal repression and humanitarian catastrophe constitute a threat to international peace and security, which brings the proviso into play and makes article 2(7) irrelevant.

What survives

A great deal, and candidates who write that sovereignty is dead are wrong.

Consent still governs treaty obligation. No State is bound by a Covenant it has not ratified, and reservations limit what it has accepted.

Article 2(4) is untouched. Nothing in the human rights corpus authorises one State to use force against another to enforce it, and the doctrine of humanitarian intervention has no general acceptance.

Enforcement remains centralised. Only the Security Council may authorise coercive measures, and its permanent members may veto.

The Responsibility to Protect, adopted in the 2005 World Summit Outcome, is drafted to respect this. It affirms each State's own responsibility, and it channels collective action through the Security Council rather than around it.

Worked example

A State objects that a special rapporteur's report on its prisons is intervention in matters essentially within its domestic jurisdiction.

Is it intervention? No. Investigation and reporting are not dictatorial interference, and the Organization has exercised these functions since 1946.

Is it essentially domestic? The State is party to the Civil and Political Covenant and to the Convention against Torture, so treatment of detainees is the subject of obligations it owes to others.

Does the Charter itself assign the subject? Yes, under articles 55 and 56.

Is the proviso needed? No, and it is better not to reach for Chapter VII when the objection fails on its own terms.

Order of the answer: intervention first, then essentially, then treaty consent, then the Charter, and leave Chapter VII for the case where coercion is proposed.

What it does NOT mean

Article 2(7) is not a defence to a treaty breach. It limits what the Organization may do, not what a State has promised.

And it has never barred discussion. The distinction between intervening and considering is as old as the provision.

Quick revision

• 2(1) sovereign equality. 2(4) no threat or use of force against territorial integrity or political independence. 2(7) no intervention in matters essentially within the domestic jurisdiction, but not prejudicing enforcement measures under Chapter VII.
• Four words: intervene is not discuss; essentially is weaker than the League's exclusively; domestic jurisdiction is relative and shrinks with obligation; the Chapter VII proviso removes the article entirely.
• Five ways worn down: treaty consent; the Charter pledge in articles 55 and 56; the practice of the organs from 1946; resolutions 1235 (1967) and 1503 (1970); Chapter VII determinations from the 1990s.
• What survives: consent to be bound, article 2(4), centralised enforcement with the veto, and a Responsibility to Protect routed through the Security Council.

Test yourself

1. Set out article 2(7) and identify the words on which every argument turns. It provides that nothing contained in the Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State, or require Members to submit such matters to settlement under the Charter, but that this principle shall not prejudice the application of enforcement measures under Chapter VII. Four elements carry the weight. Intervene, which the practice of the organs has never equated with discussing, studying, investigating or recommending, so that a report or a resolution is not caught. Essentially, which is weaker than the word exclusively used in the corresponding provision of the Covenant of the League of Nations, and the change was deliberate, so a matter that is partly domestic is not thereby beyond reach. Domestic jurisdiction, which is not a fixed list of subjects but a relative notion that contracts as a State takes on international obligations. And the closing proviso, which removes the whole article once the Security Council acts under Chapter VII, so that the objection has no application to enforcement measures at all.

2. How was the objection worn down? By five distinct routes. First, treaty consent: a State that ratifies a human rights treaty has placed the subject-matter outside its exclusive domain, because whether it is performing an obligation owed to other parties cannot be a purely internal question. Second, the Charter itself: articles 55 and 56 contain a pledge to take joint and separate action in co-operation with the Organization for universal respect for and observance of human rights, and a subject the Charter assigns to the Organization cannot be essentially domestic. Third, the practice of the organs, beginning with the General Assembly's consideration of the treatment of people of Indian origin in South Africa from 1946 over precisely this objection, and hardening into the routine examination of country situations; practice under a constituent instrument is evidence of what it means. Fourth, the complaint machinery, since resolution 1235 of 1967 permitted public examination of situations revealing a consistent pattern of gross violations and resolution 1503 of 1970 established a confidential procedure for communications. Fifth, Chapter VII, since the Security Council has repeatedly treated internal repression and humanitarian catastrophe as a threat to international peace and security.

3. What remains of sovereignty in this field? More than the rhetoric of erosion suggests. Consent still governs obligation: no State is bound by a Covenant it has not ratified, reservations shape what it has accepted, and the optional procedures bind only those who opt in. Article 2(4) is untouched by the growth of human rights law, so nothing in that corpus authorises one State to use force against another in order to enforce it, and the doctrine of unilateral humanitarian intervention has never obtained general acceptance. Enforcement remains centralised in the Security Council, where the veto of a permanent member can stop it, which is why the machinery works unevenly and why criticism of selectivity is fair. And the Responsibility to Protect, as adopted in the 2005 World Summit Outcome, was drafted to fit inside this structure rather than to displace it: it affirms that each State bears the primary responsibility to protect its own population, and it routes collective action through the Security Council in accordance with the Charter. Sovereignty has been made conditional in argument and remains structurally intact in enforcement.

The relativism argument, fairly stated

The strong claim: values differ across cultures, so no single catalogue can bind all of them, and the existing catalogue reflects the history of one region.

The weak claim: the norms are common but their implementation must be sensitive to context, sequence and resources.

Vienna accepts the weak claim and rejects the strong one, and that is the sentence to write.

The answers to the strong claim.

Drafting: the Commission that drafted the Declaration included members from China, Chile, Lebanon, India, the Philippines and the Soviet Union, and [Drafting the Universal Declaration] records the composition.

Ratification: the treaties have been ratified by the great majority of States of every region, and a State that ratifies has consented.

Selectivity of the objection: the relativist argument is almost always raised by a government about limits on its own power, and rarely by the people said to hold the different values.

And the honest concession: uniformity of application is not required by universality. Margin of appreciation in Europe and progressive realisation in the Economic, Social and Cultural Covenant are both universality with room for difference.

Worked example

A State defends corporal punishment by saying that it accords with its religious and cultural traditions and that Vienna requires those to be borne in mind.

Sentence three does require them to be borne in mind, so do not dismiss the argument.

But the duty in the same sentence binds regardless of cultural systems, so the tradition cannot displace the obligation.

And the obligation here is article 7 of the Covenant, which is on the non-derogable list, so there is no room for balance even in an emergency.

The correct use of particularities would be in choosing how to phase out the practice, in designing training and in framing public explanation, not in deciding whether to.

The formula for the answer: particularities go to how, never to whether.

What it does NOT mean

Vienna did not declare cultural difference irrelevant. It gave it an interpretive role and denied it a justificatory one.

And consensus at Vienna was not unanimity of view. It was agreement on a text, and the disagreement continued, which is why [ASEAN and the Human Rights Declaration of 2012] is worth reading against it.

Quick revision

• Vienna, June 1993, 171 States, by consensus. Paragraph 5, three sentences.
• All human rights are universal, indivisible and interdependent and interrelated; treat them globally in a fair and equal manner, on the same footing, and with the same emphasis; while particularities must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect.
• Universal answers imposition; indivisible answers ranking; interdependent answers the two logics; same footing answers the Organization's own practice.
• Bangkok, April 1993 used the same particularities phrase to qualify the norms; Vienna made it subordinate.
• Vienna also: women and the girl child inalienable, integral and indivisible; the right to development affirmed; a High Commissioner called for; universal ratification urged.
• Particularities go to how, never to whether.

Test yourself

1. Give paragraph 5 and explain the structure of its third sentence. It declares that all human rights are universal, indivisible and interdependent and interrelated; that the international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis; and that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. The third sentence is the negotiated compromise and its grammar carries the settlement. The concession to particularities is in a subordinate clause introduced by while, and it is expressed as something to be borne in mind, which is an instruction about interpretation and application. The obligation is in the main clause, is addressed to States, and is qualified by the word regardless, which forecloses the argument that a different political, economic or cultural system alters what is owed. Read together, culture is admitted as context and refused as justification, and any answer that reverses that order has read the sentence backwards.

2. What had the Bangkok Declaration said, and how did Vienna handle it? The Bangkok Declaration, adopted by Asian States at the regional preparatory meeting in April 1993, recognised that human rights are universal in nature, but added that they must be considered in the context of a dynamic and evolving process of international norm-setting, bearing in mind the significance of national and regional particularities and various historical, cultural and religious backgrounds. It also emphasised the principles of respect for national sovereignty and non-interference, objected to the use of human rights as an instrument of political pressure and to conditionality in development assistance, stressed the indivisibility and interdependence of all categories of rights, and pressed the right to development. Vienna took the same phrase about particularities into paragraph 5 and changed its function. In Bangkok the phrase qualified the norms themselves, since they were to be considered bearing it in mind. In Vienna it was demoted to a subordinate clause and answered in the same sentence by a duty binding regardless of political, economic and cultural systems. The Asian group secured its language and lost its effect, which is the most instructive drafting episode in the field.

3. State the relativist case fairly and give the answers. In its strong form the case is that values differ fundamentally between cultures, that no single catalogue can bind them all, and that the existing catalogue is the product of one region's history and is imposed through the diplomatic and economic power of that region. In its weak form it is that the norms are shared but their implementation must be sensitive to context, sequence and available resources. Four answers meet the strong form. The drafting record does not support the claim of a single provenance, since the Commission included members from China, Chile, Lebanon, India, the Philippines and the Soviet Union, and the debates crossed traditions. Consent answers it too: the core treaties have been ratified by the great majority of States in every region, and a State that ratifies has agreed. Selectivity answers it a third time, since the argument is nearly always advanced by a government resisting limits on its own power rather than by the people whose values are invoked. And the weak form is already accommodated within the system, through progressive realisation in the Economic, Social and Cultural Covenant and through doctrines of deference in regional courts, so relativism as a demand for room to differ in method has already been granted.

The significance for the concept is that it completes a movement begun at Nuremberg. The order now reaches the individual in two directions: as the holder of rights and as the bearer of criminal responsibility.

Complementarity is the limit. The Court acts only where the State is unwilling or genuinely unable, so it is a backstop and not a substitute.

How it reaches an Indian court: article 51

Article 51 is a Directive Principle. The State shall endeavour to promote international peace and security; maintain just and honourable relations between nations; foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration.

Clause (c) is the bridge. India is dualist, so a treaty does not become enforceable law by ratification alone, and article 253 empowers Parliament to legislate to give effect to international agreements. But article 51(c) supplies the interpretive rule: where a domestic provision is capable of more than one meaning, the meaning consistent with India's international obligations is preferred, and where there is a gap and no inconsistent domestic law, international norms may be read into the fundamental rights.

The Protection of Human Rights Act 1993 is the statutory counterpart, and its definition of human rights refers to the rights guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. [The National Human Rights Commission: Constitution] follows this through.

The limit is inconsistency. Where a statute is clear and conflicts with a treaty, the statute governs in an Indian court, and the remedy is legislative.

Worked example

A petitioner asks an Indian court to read a right of access to essential medicines into article 21, relying on article 12 of the Economic, Social and Cultural Covenant and a general comment.

Article 51(c) permits the court to prefer a construction consistent with the obligation, and India has ratified that Covenant.

Article 21 is capable of the construction, since the right to life has been read to include health.

The general comment is persuasive, not binding, being the interpretation of a treaty body whose views are not judgments.

And no domestic statute contradicts the reading, which is the condition for using it.

If a statute did contradict it, the court would apply the statute and could at most declare the inconsistency and leave Parliament to act under article 253.

What it does NOT mean

Vienna did not create any of the four changes by itself. It recommended the High Commissioner and pressed for universal ratification; the Council, the Court and the Optional Protocol came later and from other pressures.

And article 51 is not enforceable. It is a directive principle, not justiciable under article 32, and its work is interpretive.

Quick revision

• High Commissioner: recommended at Vienna, created by General Assembly resolution 48/141 of 20 December 1993. Executive, not adjudicative.
• Nine core treaties with committees; common method of reports, list of issues, dialogue, concluding observations, general comments, communications; Optional Protocol to the ICESCR 2008, in force 5 May 2013.
• Human Rights Council 2006, resolution 60/251, forty-seven members, subsidiary of the General Assembly; Universal Periodic Review of every State, answering selectivity.
• Rome Statute 1998, in force 1 July 2002; genocide, crimes against humanity, war crimes, aggression; complementarity.
• India: article 51(c), foster respect for international law and treaty obligations; dualist, article 253 for legislation; the Protection of Human Rights Act 1993 defines human rights by reference to the Constitution or the International Covenants. A clear contrary statute wins.

Test yourself

1. Name the four institutional changes since Vienna and say what each added. The High Commissioner for Human Rights, recommended by the conference and created by General Assembly resolution 48/141 of 20 December 1993, added a single official with principal responsibility for the Organization's human rights activities, a co-ordinating function across the system, and a public voice, though no power to decide a case. The consolidation of the treaty system around nine core instruments and their committees added a common working method of periodic reporting, lists of issues, constructive dialogue, concluding observations, follow-up and general comments, and it was completed on the complaints side by the Optional Protocol to the Economic, Social and Cultural Covenant, adopted in 2008 and in force on 5 May 2013. The replacement of the Commission by the Human Rights Council in 2006 under resolution 60/251 added a standing body of forty-seven members elected by and subsidiary to the General Assembly, and with it the Universal Periodic Review, under which every Member State is examined in turn on the same basis. And the Rome Statute of 1998, in force on 1 July 2002, added a standing criminal court, completing the movement begun at Nuremberg by which the order reaches the individual as a bearer of responsibility as well as a holder of rights.

2. Explain how article 51 operates in an Indian court. Article 51 is a Directive Principle of State Policy and therefore not enforceable by any court, but clause (c) directs the State to endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another, and that direction has been used as an interpretive instruction. India follows the dualist approach, so ratification of a treaty does not by itself make it enforceable domestic law, and article 253 empowers Parliament to legislate for the whole or any part of the territory to give effect to international agreements. Between ratification and legislation, article 51(c) does two kinds of work. Where a statutory or constitutional provision is capable of more than one construction, the construction consistent with India's international obligations is preferred. And where there is a gap, with no domestic law inconsistent with the norm, international standards may be read into the fundamental rights, most often into article 21. The limit is inconsistency: where a statute is clear and conflicts with the treaty, an Indian court applies the statute, and the remedy lies with Parliament.

3. Why is the Universal Periodic Review the Council's most significant innovation? Because it was designed against the specific failure that destroyed its predecessor. The Commission on Human Rights lost its standing through selectivity: it examined some States and not others, and membership was sought by governments precisely in order to avoid scrutiny, so its country resolutions came to be read as the outcome of blocs rather than of assessment. The Review answers that by covering every Member State without exception, on a fixed cycle, on the same documentary basis of a national report, a compilation of information from United Nations sources including treaty bodies and special procedures, and a summary of submissions from other stakeholders including national institutions and non-governmental organisations. The review is conducted by States in an interactive dialogue and produces recommendations that the State under review accepts or notes, with implementation examined in the following cycle. Its weaknesses follow from the same design, since a peer process produces friendly recommendations alongside serious ones and generates no binding finding, which is why it supplements rather than replaces the treaty bodies and the special procedures.

Gap five: the economic structure

Nothing binding addresses the distribution of wealth, the terms of trade or the rules of finance as human rights questions.

The attempt was made. The New International Economic Order resolutions of 1974 and the Declaration on the Right to Development of 1986 are the record of it, and Module IV of this paper is that record. What survives is a declaration and not an obligation.

What exists in binding form is article 2(1) of the Economic, Social and Cultural Covenant, which requires steps through international assistance and co-operation but obliges no State to supply anything to any other.

This is the gap that gives the paper its subject. [Why the New International Economic Order Failed] and [The New International Economic Order Assessed Today] are where the argument is settled.

Sorting the five

Curable by law: gap one, a court, and gap three, corporations. Both are drafting and ratification problems.

Political: gap two, the veto; gap four, selectivity; and gap five in its ambitious form, since a redistribution treaty fails for the same reason the New International Economic Order failed, that those who would pay must consent.

Gap five has a curable fragment, since obligations of process, such as participation in the governance of financial institutions and transparency in trade rules, are within reach even where obligations of outcome are not.

Worked example

Asked what single reform would most improve the order, compare two candidates.

A world court would cure gap one and would leave gaps two, four and five untouched, and its judgments would still need State execution.

A binding corporate instrument would cure gap three and would reach conduct that no existing mechanism reaches at all, including conduct in States too weak to regulate it.

The stronger answer takes the second and explains why: gap three is the only gap where the affected conduct currently falls outside the system entirely, whereas gap one concerns the quality of a remedy that already exists in some form.

What it does NOT mean

A gap is not a failure of the whole. The order in 1945 had no catalogue, no committee and no court, and the honest verdict is large achievement with structural limits.

And these are not the only gaps. Reservations, non-reporting and the treaty bodies' backlog are real, and they are defects of operation rather than of architecture.

Quick revision

• Five gaps: no world human rights court; enforcement only through Chapter VII and the veto; no binding reach over corporations; selectivity; no binding treatment of the economic structure.
• Curable by law: the court, and corporations. Political: the veto, selectivity, and redistribution.
• Committee views are not judgments; regional courts give binding judgments, so protection depends on geography.
• Corporations: Guiding Principles on Business and Human Rights, endorsed 2011, on protect, respect, remedy; a binding instrument under negotiation since 2014.
• Economic structure: what survives is article 2(1) of the ICESCR and two declarations; obligations of process are reachable where obligations of outcome are not.

Test yourself

1. Name the five gaps and classify them. The first is the absence of a world court of human rights open to individuals: a person with a Covenant claim reaches the Human Rights Committee, a body of eighteen independent experts that adopts views which are authoritative interpretations and not binding judgments, whereas a resident of Europe, the Americas or Africa may reach a court whose judgments bind the respondent State. The second is that coercive enforcement lies exclusively with the Security Council under Chapter VII, and therefore under the veto of five States. The third is the absence of binding obligations on corporations, which are not and cannot be parties to human rights treaties. The fourth is selectivity, since identical conduct attracts different responses according to who is responsible. The fifth is the absence of any binding treatment of the distribution of wealth, the terms of trade or the rules of finance as human rights questions. The first and third are curable by law, being problems of drafting and ratification. The second, the fourth and the ambitious form of the fifth are political, since each requires the consent of those whose power or wealth the reform would reduce.

2. What exists in place of binding obligations on corporations, and why has a treaty proved difficult? What exists is a soft framework with hard edges at the margins. The Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in 2011, rest on three pillars: the State duty to protect against abuses by third parties including business, the corporate responsibility to respect human rights through policy commitment, human rights due diligence and remediation, and access to effective remedy through judicial and non-judicial mechanisms. Around them sit domestic statutes requiring supply chain disclosure or due diligence, procurement conditions, and in a few States civil liability for harm caused abroad. A binding instrument has been under negotiation in an intergovernmental working group since 2014 without agreement, for three reasons. Jurisdiction is contested, since a treaty giving a home State's courts reach over conduct in a host State cuts across territorial sovereignty. The corporate veil obstructs attribution of a subsidiary's conduct to a parent. And the content of the obligation is disputed, since companies resist a duty framed in the same terms as a State's and prefer a due diligence standard, which is a duty of conduct rather than of result.

3. Why is the fifth gap the one this paper exists to examine? Because a paper on human rights and the international order is asking what the order owes, and the answer given by the binding law is very little. Article 2(1) of the Economic, Social and Cultural Covenant requires each State to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, which obliges each State to act but obliges no State to supply anything to another. Everything more ambitious exists as declaration: the Declaration on the Establishment of a New International Economic Order and the Charter of Economic Rights and Duties of States, both of 1974, and the Declaration on the Right to Development of 1986. Those texts assert that the structure of trade, finance and technology transfer is itself a human rights question, and none of them binds. The gap is therefore the subject of Module IV, and the honest conclusion has two halves: obligations of outcome, such as a duty to transfer resources, failed and will fail because those who would pay must consent; obligations of process, such as participation in the governance of financial institutions, transparency in trade rules and impact assessment, remain reachable and are where the argument is now conducted.