The Universal Declaration as the Model Code

That is the observation that turns a recitation into an argument, and it connects directly to [Why the Social and Economic Rights Went into Part IV].

What it has become

Four claims are made for the Declaration's present status, and they should be distinguished.

It is not a treaty and has not become one. The obligations were put into treaty form in the two Covenants of 1966.

Parts of it are customary international law. The prohibitions on slavery, torture, and prolonged arbitrary detention, and the core of the equality guarantee, are widely accepted as customary and therefore binding on all States regardless of ratification.

It is an authoritative interpretation of the Charter. Articles 1(3), 55 and 56 of the Charter oblige members to promote universal respect for and observance of human rights without defining them, and the Declaration is the accepted statement of what those Charter provisions mean.

And it has enormous interpretive force in domestic law. In India it is used to construe Part III, which is the doctrine [The Rule That a Convention in Harmony Is Read Into the Rights] takes in full, and the Chandrima Das decision is a worked example of it.

What is in the Declaration and not in Part III

Naming these is what separates a good answer from a summary, and [What Part III Does Not Contain] returns to them.

Article 14, the right to seek and to enjoy asylum from persecution.

Article 15, the right to a nationality and against arbitrary deprivation of it.

Article 22 to 26, social security, work, rest and leisure, an adequate standard of living, and education, which India placed in Part IV rather than Part III. Education alone has since moved, by article 21A.

Article 17, property, which India had in article 31 and removed in 1978.

And article 28, the entitlement to a social and international order in which the rights can be fully realised, which has no Indian counterpart at all.

What is in Part III and not in the Declaration

Two entries, and both are Indian.

Article 17, the abolition of untouchability, which no international instrument of 1948 addressed.

Article 30, the positive right of minorities to establish and administer educational institutions, where article 27 of the Covenant is framed only as a right not to be denied.

Worked example

Her Set 1 Q1, in its opening half.

Say what the Declaration formally is: a General Assembly resolution of 10 December 1948, not a treaty, adopted without a dissenting vote, with India voting in favour.

Quote its own words: a common standard of achievement for all peoples and all nations.

Give the structure in the five blocks.

Make the structural point: one instrument, both categories, and India split them between Parts III and IV.

Give the four claims about its present status, distinguishing them carefully.

Name what is in it and not in Part III, and what is in Part III and not in it.

Then turn to the case, which is where her question goes.

What it does NOT mean

It does not mean the Declaration is binding as a treaty. It is not, and saying so is a common error.

It does not mean it is legally inert. Parts are customary law, it interprets the Charter, and Indian courts use it to construe Part III.

And it does not mean the Constitution copied it. The Indian demand for rights predates it by half a century, and Part III contains entries the Declaration does not.

Quick revision

• Adopted 10 December 1948 by the General Assembly, as a resolution, not a treaty. No dissenting vote, with abstentions. India voted in favour and took part in the drafting.
• Its own description: a common standard of achievement for all peoples and all nations.
• Thirty articles: 1 and 2 foundations; 3 to 21 civil and political; 22 to 27 economic, social and cultural; 28 to 30 the social and international order, duties to the community, and no right to destroy the rights.
• One instrument, both categories, no distinction of enforceability. India split them into Part III and Part IV.
• Four claims about its status: not a treaty; parts are customary law; an authoritative interpretation of Charter articles 1(3), 55 and 56; and interpretive force in domestic law.
• In the Declaration, not in Part III: article 14 asylum, article 15 nationality, articles 22 to 26 social and economic rights, article 17 property, article 28 the social and international order.
• In Part III, not in the Declaration: article 17 untouchability, and article 30 as a positive minority right.

Test yourself

1. What is the Declaration, formally, and what has it become? Formally it is a resolution of the United Nations General Assembly, adopted on 10 December 1948. It is not a treaty: nobody ratified it, it entered into force on no date, and it created no directly enforceable obligations at the time of adoption. It was adopted without a dissenting vote, with abstentions, and India voted in favour having taken part in the drafting. Its own preamble describes it 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 these rights and by progressive measures to secure their universal and effective recognition and observance.

What it has become is best stated as four distinct claims, which should not be run together. First, it has not become a treaty; the obligations were put into treaty form in the two Covenants of 1966. Second, parts of it are now customary international law and therefore bind all States regardless of ratification, in particular the prohibitions on slavery, on torture, and on prolonged arbitrary detention, together with the core of the equality guarantee. Third, it is the accepted authoritative interpretation of articles 1(3), 55 and 56 of the Charter, which oblige members to promote universal respect for human rights without defining them. Fourth, it carries great interpretive force in domestic law, and in India it is regularly used to construe Part III, which is the doctrinal route by which its standards become operative here.

2. What is the most important structural fact about the Declaration for an Indian answer? That it contains both categories of rights in a single instrument with no distinction of enforceability between them, and that India split them. Articles 3 to 21 set out the civil and political rights: life, liberty and security of person; freedom from slavery and from torture; recognition as a person before the law; equality before the law; an effective remedy; freedom from arbitrary arrest; a fair and public hearing; the presumption of innocence; privacy; freedom of movement; asylum; nationality; marriage; property; thought, conscience and religion; opinion and expression; assembly and association; and participation in government. Articles 22 to 27 set out the economic, social and cultural rights: social security, work and equal pay, rest and leisure, an adequate standard of living, education, and participation in cultural life.

The Declaration treats these as one body of entitlement. The Indian Constitution took the first group into Part III, where they are justiciable and enforceable by writ under article 32, and the second group into Part IV, where article 37 declares them not enforceable by any court. So the consonance MU's question asserts is real in content and incomplete in status, and pointing that out turns a recitation of corresponding articles into an argument. It also connects directly to the reasons the Constituent Assembly gave for the division, and to the fact that Indian courts have since undone much of it by reading Part IV content into article 21.

3. Name what is in the Declaration and not in Part III, and the reverse. In the Declaration and not in Part III: article 14, the right to seek and to enjoy in other countries asylum from persecution, which has no Indian constitutional counterpart and is why refugee protection in India rests on article 21 arguments; article 15, the right to a nationality and against arbitrary deprivation of it or denial of the right to change it; articles 22 to 26, covering social security, the right to work with just and favourable conditions and equal pay, rest and leisure, an adequate standard of living, and education, all of which India placed in Part IV rather than Part III, with education alone since moving across by article 21A; article 17, property, which India had in article 31 and removed from Part III in 1978; and article 28, the entitlement to a social and international order in which the rights can be fully realised, which has no Indian counterpart at all.

In Part III and not in the Declaration: article 17, the abolition of untouchability and the making of its enforcement an offence, which no international instrument of 1948 addressed and which comes from Indian social reform politics; and article 30, the positive right of all minorities, whether based on religion or language, to establish and administer educational institutions of their choice, where the nearest international provision, article 27 of the Civil and Political Covenant, is framed negatively as a right not to be denied the enjoyment of one's culture, religion or language. Naming both lists is what distinguishes an answer that has compared the two documents from one that has summarised them.