OIS Lecture UDHR

OIS Lecture
UDHR
9th January 2008
By Etsuro Totsuka
LL.M. Dr. Prof. of Ryukoku University
The importance of 2008



10 December 2008
60th Anniversary
of the UDHR


http://www.ohchr.org/E
N/UDHR/Pages/60UDH
RPhotoGallery.aspx
last visited on 27
December 2007
The UN Campaign for UDHR at:
http://www.ohchr.org/EN/UDHR/Pages/60UDHRIntroduction.aspx
What is the UDHR?

How was it made?


The GA of the UN declared it.
What was declared was

a set of principles of human rights.
What are human rights?
Inalienable rights possessed by
human beings:
Men and women
I was asked a question in June
2002 by


The Special Committee of the House of
Councilors of the National Diet
The title of my speech was to be

「人権の国際化」:

“Internationalization of Human Rights”
The National Diet of Japan:
last visited on 27 December 2007
http://www.sangiin.go.jp/japanese/frameset/fset_e05_01.htm
“Internationalization of
Human Rights”

What are the contents of the question?




The MDs might have thought:
HR were originally guaranteed inside domestic
states
Then, HR were internationalized.
Is this view supported by the thoughts that many
people share?
Yes, it was supported even by
a UN document.
UN Year book 1948-49, p.524
http://www2.ohchr.org/english/issues/education/training/docs/UNYearbook.pdf
The Japanese practicing lawyers’ view:

My former colleagues and I myself shared
this view without any serious research.




Was it supported by evidence?
We can find that in many states, their constitutions
had provisions for protection of some rights of the
nationals of each domestic state.
Each constitution had different provisions.
Were those rights called as “human rights”?
In cases, where many people say so,
is it always right?

What happened to Galileo Galilei, whose
view was different from then authorities and
many scientists ?


It is very interesting and exciting to research into
the area, where very few people are interested in,
or to critically challenge the established view, if it
is wrong.
We need, however, to research first:

In library and internet too these days.
First, researches to be done:


When was the idea of HR born and
declared by which state?
Are the following statements right?



1. A set of HR was declared by North Americans
in 18 century.
2. A set of HR was declared by French in 18
century.
When was it internationally accepted?
The Constitution of Virginia:
June 29, 1776



http://www.yale.edu/lawweb/avalon/states/va05.
htm
last visited on 27 December 2007
“SECTION 1. That all men are by nature
equally free and independent, and have
certain inherent rights,…”
In Congress, July 4, 1776

The unanimous Declaration of the thirteen
united States of America



http://www.usconstitution.net/declar.html
last visited on 27 December 2007
“…. all men are created equal”
Was it true?
A set of HR was declared by North
Americans in 18 century.
In my interpretation,
These “men” did NOT include women
Thus, they did NOT mean human
beings
In the U.S.A., evidence No. 1:

The Equal Rights Amendment of the
Constitution



It is still being tried, but failing.
http://en.wikipedia.org/wiki/Equal_Rights_Ame
ndment
last visited on 27 December 2007
1789 in France

Declaration des droits de l'homme et du
citoyen.




http://www.conseilconstitutionnel.fr/textes/d1789.htm
last visited on 27 déc. 07
Art. 1er. « Les hommes naissent et demeurent libres
et égaux en droits. »

What does“Les hommes” mean?
In Japanese translation

This was translated into 「人」

高木・末延・宮澤編『人権宣言集』岩波文庫、
134~140頁［山本桂一氏担当部分］
Was it true?
A set of HR was declared by French in
18 century.
In my opinion
This should have been 「男」
戸塚悦朗『国際人権法入門』明石書店
2003,p.16.
Translation by the French
Government

“Men are born and remain free and equal
in rights.”

Unable to revisit on 28 December 2007
In France, evidence No. 2:
Olympe de Gouges
–last visited on 27 December 2007
–http://upload.wikimedia.org/wikipedia/commons/8/8f/OlympeDeGouge.jpg
1791 in France


Olympe de Gouges claimed the need for
Déclaration des droits de la femme et de la
citoyenne


http://fr.wikipedia.org/wiki/D%C3%A9claration_
des_droits_de_la_femme_et_de_la_citoyenne
last visited on 27 December 2007
1889 in Japan

The Constitution of the Great Japanese
Empire



http://www.houko.com/00/01/M22/000.HTM
last visited on 27 December 2007
Chapter 2: Rights and Duties of the
Subjects



No terms such as HR can be found in it.
Only the subjects of the Empire were given the rights.
Under the constitution, women were discriminated
against.
In Japan, evidence No.3 :



Women could not vote
The first election that
women participated
Held on 10 April 1946.


http://ja.wikipedia.org/w
iki/%E5%A5%B3%E6%8
0%A7%E5%8F%82%E6
%94%BF%E6%A8%A9
last visited on28
December 2007
Conclusion of my
research:
The assumption that HR were
originally guaranteed in domestic
states was wrong.
Then, what about in
The international community?
1919 in Paris


Paris Peace
Conference
The League of Nations


http://www.indiana.edu/
~league/
last visited on 27
December 2007
http://www.ilo.org/public/japanese/region/asro/tokyo/about/ilohistory.htm
The Covenant of
the League of Nations

(Including
Amendments adopted
to December, 1924)



http://www.yale.edu/law
web/avalon/leagcov.htm
last visited on 27
December 2007
It did not include the
term, HR
http://www.angelfire.com/mi3/ww1/president.html
1944 in Philadelphia



International Labour Organization
Declaration concerning the aims and
purposes of the International Labour
Organization
in Philadelphia


http://www.ilo.org/wttglobal/About_the_ILO/Ori
gins_and_history/Constitution/index.htm#anne
x
last visited on 27 December 2007
Text of the 1944 Declaration

“Ⅱ(a) 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”
What is the UDHR?

How was it made?



http://www.ohchr.org/EN/UDHR/Pages/60UDH
RPhotoGallery.aspx
last visited on 27 December 2007
The process starts from 1 January 1942.
1 January 1942
in Washington D.C.


United Nations declared in the preamble of
1942 Declaration by the United Nations


http://en.wikisource.org/wiki/Declaration_by_th
e_United_Nations
last visited on 28 December 2007
Human Rights included in the
Declaration

“Being convinced that complete victory
over their enemies is essential to defend
life, liberty, independence and religious
freedom, and to preserve human rights and
justice in their own lands as well as in
other lands,…”

The idea of HR, for the first time, was included
in a United Nations’ Declaration.
On 27 June 1945

The Charter of the United Nations



http://www.un.org/aboutun/charter/
last visited on 27 December 2007
The term HR was, for the first time,
included in the basic treaty of the United
Nations, the newly created world body.

Thus, it became a part of international law.
Article 1 of the UN Charter

The Purposes of the United Nations are:

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; and
UN Photoes




http://www.un.org/av/photo/cats/un_history.html
last visited on 27 December 2007
Finally, women were included and
the term HR was introduced into a major
treaty.
GA resolution


General Assembly Resolution 217 A (III) of
10 December 1948
International Bill of Human Rights


http://daccessdds.un.org/doc/RESOLUTION/GEN/
NR0/043/88/IMG/NR004388.pdf?OpenElement
last visited on 28 December 2007
A set of human rights standards.



http://www2.ohchr.org/english/issues/education/
training/udhr.htm
last visited on 28 December 2007
On 10 December 1948, 60 years ago, the
GA of the UN adopted the draft declaration
that was proposed by the Commission on
Human Rights.

This day was later made as Human Rights Day
by the GA.
UDHR/English



http://www.unhchr.ch/udhr/lang/eng.htm
last visited on 28 December 2007
Article 1

All human beings are born free and equal in
dignity and rights.
Article 2

Everyone is entitled to all the rights and
freedoms set forth in this Declaration,
without distinction of any kind, such as
race, colour, sex, language, religion,
political or other opinion, national or social
origin, property, birth or other status.
Article 23
1.Everyone has the right to work, to free
choice of employment, to just and
favourable conditions of work and to
protection against unemployment.
2.Everyone, without any discrimination, has
the right to equal pay for equal work.
Article 26

Everyone has the right to education.
At last, for the first time,
a full set of HR was declared by the
international organization, the United
Nations!!!
Earlier, on 3 November 1946

The New Constitution of Japan was
proclaimed


http://www.solon.org/Constitutions/Japan/Engli
sh/english-Constitution.html
last visited on 28 December 2007
CHAPTER III:


RIGHTS AND DUTIES OF THE PEOPLE
Article 10:

The conditions necessary for being a Japanese
national shall be determined by law.
Article 11:

The people shall not be prevented from
enjoying any of the fundamental human
rights. These fundamental human rights
guaranteed to the people by this
Constitution shall be conferred upon the
people of this and future generations as
eternal and inviolate rights.
Article 14:

All of the people are equal under the law
and there shall be no discrimination in
political, economic or social relations
because of race, creed, sex, social status or
family origin.
Article 26:

All people shall have the right to receive an
equal education correspondent to their
ability, as provided for by law.
In Japan




Although the Constitution uses the term
HR, “human rights”
And women are included
HR is only for “the people” 「国民」
It is Not meant for all human beings, or
anyone, therefore, foreigners are excluded
from its guarantee.
My answer to the Diet:

The issue must be:


Political decisions for domestic implementation
of the principles of HR, which were, for the first
time, internationally guaranteed by human
race.
How can states effectively implement the
UDHR in each country?
What can we do for it?
To achieve effective domestic
implementation of IHRL.
What else can we do?
Going to the UN to use the IHRL
mechanisms.
IHRL bodies


http://www2.ohchr.org/e
nglish/bodies/index.htm
last visited on 28
December 2007

Human Rights Council

Treaty bodies

Download Report