The International Bill of Human Rights

• Author: Mark Freeman, Gibran Van Ert
• Pages: 69-84

The primary source of international human rights law is the corpus of

human rights instruments known as the International Bill of Human

Rights. The Bill encompasses the Universal Declaration of Human

Rights 1948 (UDHR),1the International Covenant on Civil and Politi-

cal Rights 1966 (ICCPR),2the International Covenant on Economic,

Social and Cultural Rights 1966 (ICESCR),3and the Optional Protocol

to the ICCPR 1966 (ICCPR-OP1).4All but the latter will be addressed

in this chapter. The ICCPR-OP1 will be discussed in Chapter Fourteen.

Although it is formally part of the International Bill of Human Rights,

the ICCPR-OP1 establishes no new rights; instead, it establishes proce-

dures for the vindication of rights proclaimed in the ICCPR.

While dozens of human rights instruments exist today on a wide

range of themes, users of international human rights law continue to be

most familiar with and have greatest recourse to the instruments com-

prising the International Bill of Human Rights. Other human rights

instruments examined in later chapters often only elaborate what is

already present in or implied by them. Any proper understanding of

human rights, therefore, requires an appreciation of the Bill.

69

THE INTERNATIONAL

BILL OF HUMAN RIGHTS

chapter 4

1GA res. 217(III) (1948).

2[1976] CanTS no. 47.

3[1976] CanTS no. 46.

4[1976] CanTS no. 47. Now there is also the Second Optional Protocol to the

ICCPR Aiming at the Abolition of the Death Penalty 1989 (ICCPR-OP2) 999

UNTS 302. It is discussed later in this chapter.

A.The Universal Declaration of

Human Rights

The UDHR was adopted by the UN General Assembly primarily in

response to the horrors of the Holocaust.5It was adopted without dis-

sent and with only a few abstentions. The draft text was prepared by

the UN Commission on Human Rights and drew upon the articulation

of civil and political rights in various domestic constitutions, particu-

larly those of the US and Western Europe. John Peters Humphrey, a

Canadian who at the time headed the secretariat of the Commission on

Human Rights, played a lead role in drafting it.6Canada abstained from

the vote to adopt the draft UDHR in the Third Committee of the UN

General Assembly. Apparently, the Canadian government was con-

cerned that Jehovah’s Witness adherents might take advantage of the

freedom of religion provision, and that “communists” working within

the public service might seek to exploit the UDHR’s right to freedom of

association.7Ultimately, however, Canada voted in favour of adopting

the UDHR on 10 December 1948.

The avowed purpose of the UDHR is to provide a comprehensive

statement of basic human rights and freedoms to serve as a “common

standard of achievement for all peoples and all nations.”8The lesson

from the Second World War, and in particular from the Holocaust, was

that international law had to do more than simply protect the sover-

eignty of states; it also had to protect individuals living within those

states. The UDHR was not a binding treaty but only a declaration of the

UN General Assembly. At the time of its adoption, most human rights

supporters — in particular NGOs and a number of smaller countries —

saw the UDHR as a major compromise. They had wanted a legally

binding Bill of Rights.9

70 international human rights law

5On the UDHR generally, see J. Morsink, The Universal Declaration of Human

Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania

Press, 1999) and A. Eide & T. Swinehart, eds., The Universal Declaration of

Human Rights: A Commentary (New York: Oxford University Press, 1992).

6See J. Humphrey, Human Rights and the United Nations: A Great Adventure (New

York: Transnational Publishers, 1984) at 31–33, 42–43. More generally see A.J.

Hobbins, ed., On the Edge of Greatness: The Diaries of John Humphrey (Montreal

and Kingston: McGill-Queen’s University Press, 1994–2000).

7W. Schabas, International Human Rights Law and the Canadian Courts (Scarbor-

ough: Carswell, 1996) at 64–65.

8UDHR preamble, above note 1.

9L. Henkin et al., Human Rights (New York: Foundation Press, 1999) at 286.