THE CROSS-CULTURAL ORIGIN OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
Sun Pinghua & Sun Yinghui
In accordance with article 68 of the Charter of the United Nations, the Economic and Social Council (ECOSOC) established the Commission on Human Rights. The Drafting Committee, established under the direct leadership of the Commission on Human Rights, spent two years in drafting the Universal Declaration of Human Rights (hereinafter referred to as the Declaration or UDHR). By analyzing both Western and non-Western cultural sources, freedom and equality constitute the ideological basis for the Declaration. For the first time, it provides a detailed list of basic human rights in the form of international instruments, including civil and political rights, as well as economic, social and cultural rights. These rights are interrelated and inseparable, and together constitute the rights system of international human rights law. The promulgation of the Declaration provides a common standard on human rights for all peoples and all members of the UN and becomes an important cross-cultural legacy for human beings.II. CROSS-CULTURAL SOURCES OF THE UDHRArticle 1 of the Declaration states that ‘All human beings are born free and equal in dignity and rights.’ Freedom and equality are the important ideological bases of the Declaration. According to Eide’s definition: ‘We can take three of the many meanings of freedom: One is to have a wide range of significant options (or opportunities) open, the second is to be independent of others in deciding on the use of the options, the third is to be free so as to set one’s own values and priorities and to live by them. Equality could be understood in the same vein: to have an equally wide range of significant opportunities available as do others, to be equally independent of others, or to be equally free to determine one’s own values and priorities.’ The author will analyze the cross-cultural sources and ideological basis of the Declaration from three aspects.A. Western Cultural Sources of the UDHRViewed from the cultural tradition of Great Britain, the US and France, where human rights thought preceded the idea of freedom and equality had already formed. Freedom is the traditional thought of British culture, whose legal origin can be traced back to the Magna Carta in 1215. It is article 39 stipulates that ‘(n)o freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgement of his peers or by the law of the land.’ Moreover, ‘through innumerable acknowledgement, invoking, arguments and interpretation, the Magna Carta has already been the symbol of spirit of people’s liberty, and the headspring from which the civilization of rule by law can obtain driving power.’ From the above we can see that freedom has a long history in Britain.In 1776, the Declaration of Independence of the United States also raised the banner of freedom and equality, which was clearly declared: All human beings are born equal. It takes natural rights as its philosophical basis, including the right to life and the right to pursue happiness and freedom. The United States Bill of Rights in 1789 also explicitly stated that no person shall be deprived of life, liberty or property, without due process of law.The Declaration of the Rights of Man and of the Citizen of France in 1789 also had a significant impact on the cultural tradition. This declaration ‘created a human rights system shared by all continental countries throughout the freedom period, and it has won great honor for its comprehensiveness, accuracy, generality and systematization’. Its first article put forward the idea of freedom and equality: ‘Men are born and remain free and equal in rights.’ Then further explanations are given (e.g. article 4: ‘Liberty consists in the freedom to do everything which injures no one else’ and article 6: ‘All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.’). Article 2 states: ‘The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.Franklin Roosevelt’s speech titled ‘Four Freedoms’ to the US Congress in 1941 promoted a general understanding of essential factors of human rights. In his speech, Roosevelt declared that the four fundamental freedoms must not be reduced reasonably: freedom of expression, freedom of belief, freedom from want and freedom from fear. However, Americans paid a heavy price in the Civil War to achieve the equal dignity of different races; and racial discrimination in Europe, mainly against Jews, led to genocide and the world war with the loss of millions of lives.In a word, the Western cultural traditions of liberty and equality were highly influential in the formulation of the UDHR. However, the non-Western cultural sources of the UDHR should never be underestimated or ignored.B. Non-Western Cultural Sources of the UDHRBy exploring the UN archives we can see that 58 States participated in the drafting of the UDHR, including Eastern and Western countries. During the drafting process, non-Western cultures played even more important roles in formulating the UDHR, so that the document per se could manifest more diverse cultural factors. The representatives from Latin America, the Soviet Union, China and Islamic countries played an active role in the process. In particular, the Chinese contribution to the UDHR, in the person of Chang Pengchun, was a typical non-Western cultural factor that is worth further study.As early as in the San Francisco Conference, Latin American States showed enthusiasm in human rights and emphasized the importance of a declaration on human rights. When the UDHR was drafted, 20 Latin American States, including Chile, Cuba and Panama, took part in the process. Hernan Santa Cruz, the representative of Chile, was one of the eight Drafting Committee members who played an important role on behalf of Latin American States. In some sense, the involvement of Latin American States promoted ‘cultural diversity of international human rights.’ An Italian jurist considered that Latin American States ‘not only valiantly supported the cause of human rights, but were sometimes bolder than the industrialized countries of the West in suggesting solutions or defending wording that even the West hesitated to accept.’ In addition, many proposals and suggestions concerning human rights concepts and humanitarian thought put forward by Latin American countries laid a good foundation for the negotiations and discussions during the drafting process.As a driving force, the Soviet Union adhered to Marxist human rights and advocated the importance of economic and social rights through the Soviet Union and other socialist countries abstained in the final vote. Based on the studies of the UN documents, we find that the representatives of the Soviet Union argued tenaciously to have economic, social and cultural rights included in the UDHR. The participating delegates spoke highly of the persistence of the Soviet Union representatives who made important contributions to the drafting of the Declaration. Charles Malik, rapporteur of the Commission on Human Rights, said that ‘In fact, the total effect of the four representatives of the Soviet Union who took part in our work, who are Mr. Tepliakov, Professor Koretsky, Ambassador Bogomolov and Ambassador Pavlov, was a fourfold insistence on the following. These were absolute non-discrimination or equality; the improvement of the living conditions of the broad masses of mankind; the duties of man to society; and the decisive role to be played by the State in guaranteeing human rights and freedoms.’Islamic culture abounds with human rights concepts in two aspects: Allah’s power and the rights of man. The Islamic culture emphasizes collective rights and individual responsibilities. ‘Islamic views on human rights take safeguarding the rights of (the) majority as its value orientation. It holds deep concern for the right to subsistence and the right to life as their spiritual implications. The strong humanitarian feelings of Islamic human rights spirit built solid foundations for the political rights, economic rights, cultural rights and other kinds of human rights.’ The influence of Islamic culture on the UDHR lay in the participation of representatives of Islamic countries. Charles Malik, the representative of Lebanon, tried to introduce some Islamic human rights ideas into the discussion, and trigged heated debates with the Chinese representative on the origin of human rights.Traditional Chinese culture was also a very influential factor in the drafting process of the UDHR. This kind of influence was exerted by Chang Pengchun, the Chinese representative. He stressed the importance of remembering the drafting background, human dignity, equality and the principles of universal application of the Declaration, taking traditional Chinese philosophy, especially Confucianism as the basis; during the discussion, he advocated pluralism, emphasizing the advancement of human dignity and elevating the universality of human rights. In the drafting process, Chang Pengchun compared Chinese Confucianism with Western philosophy with the help of his superior wisdom and profound knowledge, and successfully persuaded the international community and incorporated ‘rén’, ‘lǐ’ and ‘dào’ in Confucian thought in the negotiation process of the Declaration. He finally incorporated ‘rén’, the core value of Confucianism, into article 1 of the Declaration as a philosophical foundation for the whole Declaration. Therefore it contains non-Western traditional culture and philosophy, making itself a broader moral foundation for the rights in the Declaration and manifesting characteristics of universality. A debate between Chang Pengchun and Charles Malik became a famous episode in the history of international human rights. The light of Confucianism illuminated the representatives of different states. At the 180th meeting of the UN General Assembly on December 9, 1948, on the eve of the Declaration being made public, Malik spoke highly of Chang’s contribution in the drafting process, ‘It is impossible even to begin to name the hundreds of individuals and institutions that had something to do, directly or indirectly, with our work in its initial stages. However, I must refer to Dr. Chang Pengchun, the distinguished Vice Chairman of the Commission and Drafting Committee. He never failed to broaden our perspective by his frequent references to the wisdom and philosophy of the Orient and, by a special drafting gift, was able happily to rectify many of our terms.’What he called ‘the wisdom and philosophy of the Orient’ referred to Confucianism and its idea of human rights in traditional Chinese culture. Furthermore, Chang considered that through equal, mutual obligations, violation of rights could be avoided to the largest extent. Chang explained the Confucian ‘benevolence’ to his colleagues in the Drafting Committee, regarding ‘benevolence’ as compassion for others. All this shows that Chinese culture played an important role in the drafting of the UDHR.An investigation was conducted by the UN Educational, Scientific and Cultural Organization (UNESCO). The investigation collected a large amount of data by receiving about 70 responses to a questionnaire, especially those reflecting human rights concepts, from non-Western countries. The survey showed that although cultural differences existed among UN Member States, members shared common principles. Men and women throughout the world had the right to live free of interference, poverty and uneasiness and to have access to cultural heritage created by human beings as much as possible. In summary, non-Western cultures had laid a solid foundation for the formulation of the UDHR.C. Cross-cultural Consensuses Serving as Ideological Foundations for the UDHRThrough two years of negotiations and discussions, cross-cultural consensuses were reached among different cultures, Western and non-Western, that served as ideological foundations for the UDHR. Among these consensuses, freedom and equality (or non-discrimination) became the main principles for the Declaration.The UDHR gives substance to the principle of equality. This principle is embodied in its provisions of civil and political rights, as well as economic and social rights. Equality means equality in human dignity and rights. For example, the term ‘equality before the law’ emphasizes the principle that the law applies equally to all people. The principle of equality has further developed into the principle of ‘non-discrimination’, and it has been widely applied to human freedom and various rights, such as the right to work, the right to education, to social security and so on. Everyone enjoys the right of equal protection by law. The law should not only respect all people, but also actively give equal protection to all.Article 28 of the UDHR also states the principle of the full realization of rights and freedoms in a given social and international order. To fully realize rights and freedoms, it is necessary to have a certain social and international order in which the full realization of human rights and fundamental freedoms can be promoted through the provision of suitable conditions by the State and the international community. In fact, this is a requirement for the external environment for the realization of human rights and freedoms. As a person is a part of society, the realization of human rights and freedoms cannot be separated from the social environment, but also requires the efforts of the international community. Article 29 of the UDHR sets forth the principle of obligations to society and the limitation set by law when people exercise their rights and freedoms. However, the sole purpose of legal restrictions is to ensure that others enjoy the same rights and freedoms and meet the legitimate need for morality, public order and general welfare. This further clarifies the individual’s obligations to society from three aspects: morality, public order and general welfare, and the exercise of rights and freedoms must not be contrary to the purposes and principles of the UN.The idea of freedom and equality also shows that human rights proclaimed in the UDHR contain both negative and positive rights. The negative rights are rights that can be realized by the State without intervention, while positive rights require the State to take measures to put them into effect. The State should not only take legislative measures but also define the obligations or responsibilities that it should take. Responsibility under the international law for the realization of human rights rests with the State. To achieve it, the State must shoulder three sets of obligations that are sometimes difficult to harmonize: to respect the freedom of the individual, to protect that freedom and other human rights against third parties, and where required to provide access to welfare for basic needs such as food, shelter, education and health.From this point of view, it is not enough to ensure de facto equality only relying on legislative measures to give equal protection to individuals. With the development of human society, the scope of the legislation is constantly expanding, as is the scope of human rights protection constantly expanding. Disability caused by work-related injuries, loss of income due to illness, and loss of income due to aging or unemployment must be protected by social legislation. The human rights listed in the Declaration push this protection to the extreme, including the right to work, the right to education, the right to health care, and the right to participate in social and cultural life. For example, paragraph 1 of article 25 of the Declaration stipulates that, ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.’However, it should be noted that in order to put this idea of ‘equality’ into practice people also feel it necessary to ensure judicial justice. The adoption of the Convention on the Elimination of Racial Discrimination in 1965 and the Convention on the Elimination of All Forms of Discrimination against Women in 1979 not only marked a major victory for the UN in taking measures to eliminate racial discrimination, but also provided an international cultural basis for achieving equality. In order to promote the equal enjoyment of human rights by all, all countries should be obliged to take positive steps, including legislative measures, to eliminate discrimination in economic, social and cultural rights, in accordance with the requirements of the UDHR and the corresponding conventions.
III. FUNDAMENTAL RIGHTS SYSTEM OF THE UDHRAlthough the Declaration is not an international convention, it provides specific content of basic human rights. Donnelly, an American human rights scholar, listed 34 international human rights items proclaimed in the Declaration: the right to equality without discrimination; the right to life; the right to freedom and security of human beings; the protection against slavery; the recognition of the right to personality before the law; the right to equal asylum under the law; the right to legal remedy; the protection against arbitrary arrest and detention; the right to acceptance of independent, impartial and open jurisdiction; the right to presumption of innocence at trial; the right to protect privacy, family members and residence; freedom of movement and residence; the right to seek asylum; the right to nationality; the right to marry and establish a family; property rights; freedom of thought, consciousness and religion; freedom of speech, expression and publication; the right to assembly and association; the right to political participation; the right to social security; the right to work under good conditions; the right to free trade; the right to rest and vacation; the right to food, clothing and housing; the right to health and social services; the right to special protection of children; the right to education; the right to participate in cultural life; the right to social and international order for the realization of rights; the right to self-determination; the right to humane treatment; the protection of minority cultural rights; and the debtor’s right not to be sentenced. These rights are interrelated, mutually restrictive and interdependent, and will serve as ‘a common standard of achievement for all people and all nations’. These rights are classified as civil and political, economic, social and cultural, and on this basis, the rights system of the Declaration is criticized.A. Civil Rights and Political RightsMost provisions of the Declaration provide for civil rights and political rights. First, it stipulates the presumption of innocence, non-retroactivity of law, freedom from arbitrary arrest and detention, public trial, judicial independence, the right to defend, equality of all people, prohibition of torture or cruel inhuman treatment and punishment, the right to life, personal freedom and security, freedom of movement and residence, political asylum and prohibition of slavery of others (articles 3 to 14). These stipulations are the most basic human rights norms for the Criminal Law, Criminal Procedure Law, Police Law and Prison Law, which have directly applicable value in law. The Declaration also stipulates freedom of thought, belief, expression, assembly and association, equality between men and women, non-arbitrary deprivation of property, non-arbitrary deprivation of nationality and the right to vote (articles 15 to 21). These provisions have important guiding significance for the formulation of substantive criminal law.1. The Right to Life, Liberty and Security of Person. — Article 3 of the UDHR stipulates that ‘everyone has the right to life, liberty, and security of person’. This article contains the fewest words of all the provisions of the Declaration and is the shortest, but it is an extremely important one. It involves three fundamental rights, namely, the right to life, freedom and personal security. One of the core rights is the right to life. It is considered to be a universal judicial principle. It embodies three aspects in litigation: first, the protection of human rights to life, liberty and personal security by litigation from other people, including the illegal infringement by the government, and the protection or remedy of the State can be sought by those who encounter infringement; second, no one can infringe upon other people’s rights to life, liberty and personal security, and the person who commits the violation should bear the corresponding responsibility; third, only through litigation can a person’s life and freedom be legally deprived of. Therefore, the way of litigation must follow certain rules, and no one can be arbitrarily arrested and detained, let alone arbitrarily deprived of one’s life. The life of a person, who participates in the lawsuit, shall enjoy the corresponding rights to ensure that he is not infringed illegally in the course of the lawsuit.The right to life is also the only one defined as an ‘inherent’ right by the International Covenant on Civil and Political Rights (ICCPR) adopted in 1966. Article 6(1) of the ICCPR states that: ‘every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ This is a further interpretation and implementation of the right to life in article 3 of the UDHR. The so-called ‘inherent’ right of everyone is the inherent right of people. It is not endowed by the State but is a sacred and inalienable right. As the UN Human Rights Committee has affirmed, it is a very important human right that is not allowed to be derogated from even in a state of public emergency. This right should be protected by law, where law refers to international provisions and the laws of the contracting states in their own countries. The State should not only pay attention to everyone’s right to life but also actively provide legal protection. No one can be arbitrarily deprived of his life. Article 6(2) of the ICCPR also stipulates that ‘in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes’, and article 6(4) stipulates that ‘anyone sentenced to death shall have the right to seek pardon or commutation of the sentence’, and article 6(5) stipulates that ‘sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.’ This not only stipulates the substantive content of the protection of the right to life but also stipulates the due procedures.The author once discussed the significance of the right to life and held that ‘the right to life, the most fundamental human right, serves as the precondition and necessary condition for all other human rights. All human rights begin at birth and end at death. With the right to life, people could actually have and enjoy freedom, property and other rights; without the right to life, people naturally lose the actual possession of other rights.’ In addition, the right to life is a very complex right, which involves capital punishment, abortion, disappearance, euthanasia, non-judicial execution and other forms of arbitrary deprivation of life by international or national, as well as the legal deprivation of the right to life, the relationship between the right to life and the right to food, housing, and health. However, due to space constraints, it is impossible to discuss all the relevant issues in detail.2. Freedom from Slavery. — Article 4 of the UDHR stipulates that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ The right to freedom from slavery is a very important right in the international human rights law, and it was confirmed by international instruments long before the founding of the UN. But the slave trade and slavery were not eliminated, and the slave trade was still widespread until the UDHR was promulgated. The abolition of slavery has a long history that can be traced back to the early 19th Century. The Peace Treaty of Paris in 1814 was the first multilateral treaty condemning the slave trade. Since then, the international community has formulated several instruments related to slavery. In the 19th Century, Britain, France, Portugal, the Netherlands, and the US continued to abolish the practice of owning slaves, but the slave trade in Africa rose quietly. The General Act of Berlin, adopted in 1885, was another important measure taken by the international community stipulating that the international community should prohibit the slave trade in accordance with the principles of international law. Moreover, it promoted the achievement of the General Act of Brussels Conference of 1890, and established corresponding international organizations, which played an important role, and ‘slave trading between Africa and Asia was largely brought to an end and many more nations abolished slavery during the period up to the outbreak of World War I’. The Slavery Convention adopted by the League of Nations in 1926 requires States Parties to prevent and punish the slave trade and to eliminate slavery in any form as soon as possible.The UDHR reiterates its opposition to slavery from the perspective of justice and human dignity. The provisions of article 4 are closely related to the provisions of article 6, which states that everyone has the right to be recognized as a person before the law, and article 7, which states that everyone is equal before the law and has the right to equal protection of the law without any discrimination. Since everyone is equal before the law, has the right of personality and is protected by law, no one shall be subjected to slavery or servitude. A series of international human rights instruments after the UDHR elaborated on the content of the fight against slavery. These instruments include the Convention for the Suppression of Trafficking in Persons and of the Exploitation of the Prostitution of Others adopted by the UN General Assembly in its resolution 317 (IV) on December 2, 1949, the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Customs Similar to Slavery adopted by the ECOSOC in 1956, and the International Covenant on Civil and Political Rights (article 8) and the International Covenant on Economic, Social and Cultural Rights (article 10) adopted by the UN General Assembly in 1966, the Convention on the Elimination of All Forms of Discrimination against Women of 1979 (article 6), the Convention on the Rights of the Child of 1989 (articles 32 and 34) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990, etc. These conventions contain provisions related to slavery, especially the provisions of the above-mentioned core international human rights conventions, which provide international human rights guarantees to ensure the right of everyone not to be enslaved, and these have been specifically implemented at the UN level.In addition, in the area of regional human rights protection, various regional human rights conventions have similar provisions. Article 4 of the European Convention on Human Rights of 1950, article 6 of the American Convention on Human Rights of 1969 and article 5 of the African Charter on Human and People’s Rights of 1981 all stipulate the content of anti-slavery. These regional human rights protection documents have played an important role in regional human rights protection, and in some sense the right not to be enslaved as stipulated in the UDHR has been specifically implemented at the regional level.Nevertheless, notable achievements have been made at all levels in the prohibition of slavery and protection of freedom from slavery, but ‘millions of people still suffer from slavery or slavery-like practices’. Human trafficking and sex slavery are still serious in the modern world. International human rights protection still has a long way to go.3. Freedom from Torture and Judicial Remedies. — Article 5 of the UDHR states: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ This is the earliest anti-torture provision in the UN documents. Since then, a series of human rights instruments at the UN level and some human rights instruments at the regional level have made clear provisions.The earliest provisions on the prohibition of cruel punishment can be found in the British Bill of Rights of 1689, which prohibited abnormal punishment. Subsequently, the American Bill of Rights of 1791 drew on the above-mentioned provisions and explicitly stipulated in Amendment VIII that ‘cruel and unusual punishments’ shall not be inflicted.The provisions of article 7 of the International Covenant on Civil and Political Rights of 1966 fully adopted the wording of article 5 of the UDHR and were further supplemented by the provision that ‘In particular, no one shall be subjected without his free consent to medical or scientific experiments’. Professor Yang pointed out: ‘This article covers a wide range of penalties in the substantive law, investigative measures in the procedural law, medical or scientific experiments, especially for those who are restricted to personal freedom.’At the UN level, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 specifically defines ‘torture’, stipulates the obligations of States Parties in the prohibition of torture and other cruel, inhuman or degrading treatment or punishment and provides the corresponding monitoring mechanism. Article 37(1) of the Convention on the Rights of the Child of 1989 says that ‘States Parties shall ensure that no child is subjected to torture or other cruel, inhuman or degrading treatment or punishment.’ Article 19(1) of this Convention also stipulates the obligation imposed on States Parties to ‘take all appropriate legislative, administrative, social and educational measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.’The judicial remedy is another human right stipulated in article 8 of the UDHR. Everyone has the right to an effective remedy by a competent national court when the fundamental rights conferred upon him by the Constitution or laws are violated. The international human rights law obligations undertaken by the State are mainly embodied in two aspects. On the one hand, the State fulfills its obligation to respect human rights, which can generally be achieved through the inaction of the State; on the other hand, the State fulfills its obligation to protect human rights, which requires the State to actively take all effective measures including legislative, administrative and judicial measures to guarantee human rights. Viewed from the practice of international human rights protection, the ultimate realization of human rights protection mainly depends on the State. When the basic rights of individuals are infringed upon by the Constitution and laws, it mainly depends on the State to provide effective judicial remedies while the international community plays a major role in supervision. The effective judicial remedy of the State is achieved through qualified national courts. Therefore, the judicial remedy is an individual right and an obligation for the State. Matters that cannot be solved by exhausting domestic remedies may be submitted to international bodies for review.Since the UDHR was adopted, the provisions of national judicial remedies have been specifically implemented by human rights legislation at the UN and regional levels, including the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. The provisions of national remedies have been specifically implemented and developed in legal instruments such as the European Convention on Human Rights, the European Social Charter, the American Convention on Human Rights and the African Charter on Human and People’s Rights.4. Judicial Rights to Lawful Proceedings and Fair Trial. — The rights to lawful proceedings are stipulated in article 9 of the UDHR, which says that ‘no one shall be arbitrarily arrested, detained or exiled’. These provisions clarify the right to safeguard personal integrity, including the right to personal freedom and security. The provisions of the UDHR ‘mark the further expansion of the scope of persons protected by human rights’. They require that legitimacy and impartiality should be guaranteed in both substantive and procedural law and that no one is arbitrarily arrested, detained or banished. Therefore, the arrest, detention or exile of any person must be carried out in accordance with the law and follow certain legal procedures, such as being informed of the reasons for his arrest or charges. This right, as stipulated in the UDHR, has been specifically implemented and further developed in international and regional human rights instruments. In the international human rights instruments, the provisions guaranteeing the right to personal integrity are absolute. In other words, these rights cannot be derogated from, even in the event of a public emergency.Article 10 of the Declaration stipulates that ‘everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ Through these provisions, the State must enact laws, including the criminal law, as well as administrative regulations based on the law to restrict human behavior, and must stipulate the obligations to be fulfilled. In order to ensure that criminal proceedings and the laws on which they are based conform to the requirements of human rights protection, no one shall be arbitrarily arrested, detained or banished, and everyone has the right to a fair trial and lawful proceedings.The right to a fair trial is indispensable to any legal system claiming the rule of law, which is precisely included in article 10 of the Declaration. ‘The right to a fair trial is an essential, if not imperative, part of any legal system purporting to be based on the rule of law.’ However, in order to ensure the legality of the proceedings, competent judges who have the ability to interpret the law correctly and apply the law to specific cases are also needed. These judges must perform their duties independently, free from any outside interference, and treat both the plaintiff and the defendant impartially. This is the true meaning of the ‘independent and impartial tribunal’.The results of a fair trial are influenced by various factors, such as the attitude of the parties, the provision of evidence, the level of law enforcement of judges, the role of defense lawyers and effective judicial assistance. The requirement of a fair trial in this provision is a public trial. The reason for the requirement of a public trial is that it can be supervised by the public, which is conducive to ensuring the fairness of the trial, protecting the parties being prosecuted and enhancing the public’s trust in the judicial system. It is worth pointing out that public trial also has its disadvantages, such as some negative reports that ‘in some circumstances, violate the accused to a presumption of his innocence and thus prejudice the fairness of the trial’. Nevertheless, this basic principle of a fair trial by an independent and impartial tribunal was not challenged when the Declaration was being drafted.5. Judicial Principles for the Criminal Law. — Article 11 of the Declaration stipulates the basic judicial principles of ‘presumption of innocence’ and ‘non-retroactivity of law’. Paragraph 1 of this article clearly stipulates that: ‘Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to the law in a public trial at which he has all the guarantees necessary for his defense.’ This is the standard expression of the judicial principle of the presumption of innocence, which also stipulates the right of defense, the right of public trial and the right of conviction according to law enjoyed by the accused. The burden of proof of charges lies with the prosecution. If the accused cannot be proved guilty on sufficient grounds, the accused shall be acquitted. Even if proved guilty, the basis of judgment can only be based on the law, that is, to reflect the ‘principle of legality’. Professor Yang once explained in detail the principle of ‘presumption of innocence’. He says that, ‘First, the criminal suspect and the defendant may be innocent. If they are presumed guilty and treated as criminals, they will be wrongfully treated; Second, whether the criminal suspect and defendant are guilty or not should be decided by the court. The process of litigation is the process of such a decision. Before the final decision, the defendant has not been found guilty, so his innocence status has not changed; Third, even though the possibility of the court judging the defendant guilty is very high, the guilt should be decided by the judgment and corresponding punishment. The procedure itself should be not used as a method of punishment.’ The presumption of innocence has been widely adopted by international human rights conventions, and the same provisions have been made in paragraph 2 of article 14 of the International Covenant on Civil and Political Rights, paragraph 2 of article 6 of the European Convention on Human Rights, paragraph 2(1) of article 8 of the American Convention on Human Rights and paragraph 1(2) of article 7 of the African Charter on Human and People’s Rights.In addition, paragraph 2 of article 11 of the Declaration stipulates that ‘no one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offense was committed.’ This clause is a provision of the ‘principle of legality’ and ‘non-retroactivity of law’. The principle of legality has been clearly confirmed in articles 7 and 8 of the French Declaration of the Rights of Men and the Citizen of 1789. Professor Yang pointed out that, ‘The principle of legality requires that no one should be convicted and punished without clear legal provisions. The legality of crime includes the requirements of legislation and judicature. At the legislative level, only the law can stipulate the crime and punishment. Other administrative orders, the will of the chief executive and internal provisions cannot be used as the basis for conviction and punishment. At the judicial level, only according to the effective law when the actor acts can the actor be convicted and sentenced. The actor cannot be convicted and punished according to invalid laws or laws formulated after an act, let alone according to directives or internal provisions without a legal basis.’The principle of legality is one of the necessary conditions for guaranteeing judicial justice. As Lahti concluded: ‘The fundamental rights or principles which are defined in article 11 of the UDHR and are related to the criminal procedure and criminal law have received increasing reinforcement in a variety of international instruments of human rights. Norms and standards whose aim is to strengthen human rights in the administration of justice have also received continuous attention in the activities of the UN, the Council of Europe and other international and regional organizations.’6. The Right to Privacy. — Article 12 of the UDHR stipulates: ‘No one shall be subjected to arbitrary interference with his privacy, family, home or communication, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.’ This article includes the right to private life, family, home, communication, honor, and reputation, which can be generally summarized as the right to privacy. This article is confirmed by article 17 of the International Covenant on Civil and Political Rights. It can be said that the covenant absorbs the contents of the Declaration and provides protection of international human rights law for the implementation of the provisions of the Declaration on the right to privacy. Nevertheless, it is not easy to define the right to privacy, which is the right of ‘not wanting to be known and not being interfered with by others’. ‘It is closely connected to the protection of the family, home life, place of residence, correspondence, telephone, e-mail and other electronic means of communication as well as physical and mental integrity.’ Family rights mainly refer to the right to family life, including the protection of the reunion of all members of the family and the integrity of family relations from the violation.The home right is the right of the family residence. ‘It involves not only the strict sense of residence but also various types of houses, regardless of their legal status, i.e., whether the house is ownership, rented, legal residence or illegal possession; and whether it is the nature of its use, such as a long-term residence. Occasionally, even a temporary residence is within the scope of the residence.’The right of communication includes not only the traditional right of correspondence but also the rights to modern forms of communication, such as telephone, short message, fax, telegram, e-mail, etc. Enjoying the right of communication indicates that the people who enjoy the above-mentioned forms of communication cannot be illegally detained, examined and investigated.The right of honor and reputation refers to the right to reputation and reputation that a person should enjoy. Honor and reputation have an important relationship with the actual enjoyment of a person’s substantive rights. The loss of honor and reputation will not only result in the loss of faith by others but also greatly affect the working, holding office or conducting civil activities of the person concerned. To ensure the realization of the above-mentioned right of privacy, the State should not interfere with and attack the privacy of individuals, and it requires the State to fulfill its duty of protecting all citizens’ right to privacy through effective measures, such as legislation, administration, and justice, so as to avoid interference by the public sector or private sector.However, with the development of modern science and technology, the task of protecting personal privacy faces new challenges. Personal private space is becoming smaller and smaller. The use of camera surveillance, eavesdropping technology, e-mail interception, computer surveillance and so on poses a new threat to personal privacy. Rihof concluded that ‘(t)he legal challenges posed by technological change and by increasing State involvement in the private lives of citizens necessitate the constant, dynamic development of new measures of protection within established State obligations and a wide application of the principle of privacy.’7. The Right to Freedom or Liberty. — Freedom is not only the philosophical foundation for the Declaration but also a basic right. The types of freedom are very complex. Many articles in the Declaration are related to the right to freedom. Freedom includes freedom of movement, religion, speech, and information, assembly and association. Freedom of movement is provided for in article 13 of the Declaration, which states that ‘First, everyone has the right to freedom of movement and residence within the borders of each State. Second, everyone has the right to leave any country, including his own, and to return to his country.’ These provisions not only stipulate the freedom of migration and residence but also stipulate the right to leave and return. However, the Declaration does not stipulate the right to enter any country other than ‘one’s own’, and ‘logic does not entitle us to infer a right of entry in countries other than one’s own, since the right of States to control entry into their respective territories is a jealously guarded privilege.’ In any society, freedom of movement cannot be unlimited, because one of the purposes of establishing a country is to maintain law and order, that is, to ensure that acts committed by others do not undermine the integrity and freedom of others, or hinder social peace and welfare. In addition, the right to freedom includes the right to freedom of thought, conscience and religion (article 18), the right to freedom of speech and information (article 19), and the right to freedom of assembly and association (article 20). The right to freedom of thought, conscience and religion includes ‘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’ (article 18). Among them, freedom of thought means that everyone can have his own ideas, and he cannot be convicted or punished for having different ideas, nor can one be forced to accept or criticize certain ideas; and freedom of religion includes freedom to believe in religion and not to believe in religion, which cannot be arbitrarily interfered with. Freedom of speech and information includes ‘freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’ (article 19). Freedom to hold opinions without interference is closely related to freedom of thought because opinions are the product of thinking and holding opinions belongs to the category of thought.Freedom of assembly and association stipulates that ‘no one may be compelled to belong to an association’ (article 20). Professor Yang defines ‘peaceful assembly’ as people gathering ‘consciously and temporarily for a certain purpose to express or exchange certain ideas or knowledge … The assembly may not be fixed in a certain place, but may be mobile, such as wearing a certain costume or wearing a certain sign, or even standing in silence to express dissatisfaction or protest.’ However, all kinds of freedoms are bound by the non-infringement of the rights and freedoms of others. Therefore, all kinds of freedoms must be restricted to some extent in order to protect the rights and freedoms of others. These rights have been further affirmed and clarified by the International Covenant on Civil and Political Rights, which provides a legal basis for the protection of individual freedom under international human rights law.8. The Right to International Asylum. — Article 14 of the UDHR stipulates the right of asylum, which is provided by other countries and the right of individuals to seek and enjoy such international asylum, but paragraph 2 of this article stipulates a restrictive content that ‘this right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the UN.’ The provisions of international asylum were influenced by the refugee problem during the Second World War, and the refugee problem has been a difficult problem that the international community has not been able to solve. Until now, ‘some of these refugee groups of the past exist in the third and fourth generation, their legal status still not settled.’In accordance with the spirit of human rights protection in the Declaration, any individual has the right to be granted asylum in other countries in order to avoid violations of the rights enshrined in the Declaration. However, generally speaking, countries are unwilling to accept refugees. In the 1930s, many countries refused to grant Jewish people asylum, and this resulted in a humanitarian disaster. The legal protection of refugees was a highly controversial issue in the drafting process of the Declaration. After the Declaration was adopted, the international community made positive efforts in the protection of refugees and achieved some results. The Refugee Convention of 1951 sets minimum standards for the treatment of refugees, including employment, social security, and housing.From the perspective of the construction and development of human rights protection mechanism at the international level, with the continuous improvement of the awareness of the right to seek asylum and the joint efforts of various treaty bodies, there is a tendency to pay more attention to individual complaints, which is reflected in the provisions of various conventions and relevant protocols. In the area of regional human rights protection, although the European Convention on Human Rights does not mention the right to asylum, both the American Convention on Human Rights and the African Charter on Human and People’s Rights provide for the right to seek asylum. Although the State is generally unwilling to assume the obligation of granting asylum to individuals, the right to seek asylum is stipulated in its Constitution or other legislation by Bulgaria, Denmark, France, Germany, and Slovakia. It is an indisputable fact that the right to seek asylum has increasingly become a human rights protection issue of concern to the international community.9. The Right to a Nationality. — Article 15 of the Declaration stipulates that everyone has the right to nationality, that no one shall be arbitrarily deprived of his or her nationality, and that the right of an individual to change his or her nationality must be respected. According to the provisions of this article, the right to nationality includes the following factors: first, everyone has the right to a nationality; second, arbitrary deprivation of any person’s nationality is prohibited; third, everyone has the right to change his nationality.Any practice of depriving an individual of his or her nationality or preventing the change of his or her nationality constitutes a violation of the right to a nationality. Nationality is one of the characteristics of a person’s identity, and it is also a legal concept. A person with nationality enjoys some of the rights prescribed by him in the field of international law. In terms of domestic law, a person with nationality means that the State will provide diplomatic protection to him. A person with nationality has citizenship, enjoys all the rights stipulated in the national Constitution and undertakes the corresponding legal obligations. The Declaration declares the right to nationality as an international human right, and that is a great contribution to the protection of human rights. It is also the only legal instrument that recognizes the exact connotation of the right to nationality as a human right and makes nationality more important in the international law.During the deliberations on the draft declaration, the representative of the Soviet Union insisted that the right to nationality depended entirely on domestic law, while representatives of other countries advocated that nationality should be a human right. Finally, the right to nationality was recognized in the Declaration by a sentence-by-sentence vote. However, although most countries agree that nationality contains human rights factors, their interpretations of the meaning of the right to nationality vary. It is precise because of differences in the understanding of this right that the right of nationality was not stipulated in the International Covenant on Civil and Political Rights in the international human rights legislation after the Declaration was promulgated.10. The Right to Marriage and Founding a Family. — Article 16 of the Declaration stipulates the right to marry and to found a family. Adult men and women enjoy equal rights to marry and to found a family. Marriage must be concluded with the free and complete consent of both men and women. Families have the right to enjoy the protection of society and the State. Adult men and women enjoy equal rights. This form of equal rights is not restricted by race, nationality or religion. Moreover, the official bringing of people together in marriage cannot be done by anyone else. It must be freely and completely agreed by men and women. The family as the basic unit of society is the object of social and State protection. The right to marry and found a family stipulated in this article includes the following aspects: first, the right of adult men and women to marry and found a family is not restricted; second, the right of men and women to marry is protected; third, men and women enjoy equal rights during marriage and at the time of dissolution of marriage; fourth, men and women should marry out of the right of men and women. Both parties are completely free and voluntary; fifth, the concept of family is a natural and basic social unit. Equality and non-discrimination is an important principle in the right to marry and found a family. Marriage is not restricted by race, nationality or religion as long as men and women of the right age are freely and fully consenting. The State should take legal measures to ensure the effective realization of this right. It is the obligation of the State to protect the right to marry and establish a family. The State should protect this right from arbitrary interference and obstruction.However, the right to marry is not unrestricted. For those who do not meet the conditions of marriage, the State can prohibit a certain marriage. Article 16 of the UDHR stipulates two restrictive conditions in substance. One is that the married and married couples are adult men and women, and the other is that they must be acting with ‘free and full consent’. However, the Declaration does not define the age for adulthood, nor does it require parental consent. Although the prohibition of marriage varies around the world, it can be inferred that ‘from the absence of the prohibition of polygamy in article 16, as well as from the proclamation of equality of rights between the spouses (paragraph 1 of article 16), that polygamy is permitted as long as it does not affect the equal rights of the spouses.’ The two core international human rights conventions, namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, stipulate the right to marry and to found a family, and the provisions are detailed. The three regional human rights conventions also have provisions relating to the right to marry and found a family. ‘It is clear from the UDHR drafting documents that the main goals of the drafters were to prevent child marriage and marriage without the full consent of both parties; secure equal rights of the sexes when entering into marriage, during marriage and in the process of divorce; and finally, to underline the responsibility of the State and the society for the welfare of the family.’ The right to marry and found a family involves many issues, which is a very complex research topic that needs to be discussed in depth. It cannot be elaborated on here due to space limitations.11. The Right to Property. — Article 17 of the Declaration stipulates that ‘First, everyone has the right to own property alone as well as in association with others. Second, no one shall be arbitrarily deprived of his property.’ This article provides property rights, but ‘the right to property is controversial among the internationally protected human rights, and its place in the International Bill of Rights has not been seen as self-evident’. It is precise because of the controversial nature of this right that it was not set out in the International Covenants on Human Rights. Article 17, because of its generality, is not particularly accurate in its statement, and as a declaration, it is not legally binding, so it is easier to reach an agreement than the covenants.However, as two international human rights covenants with binding force, it is difficult to reach an agreement on the discussion of the right to property, ultimately deciding not to include this right in the two covenants. ‘From the point of view of human rights, it may be difficult, at least morally, to justify a right to property which protects only existing property rights if significant parts of the population do not possess anything at all.’ However, according to the provisions of article 17, property relations can be either personal (personal property) or shared with others (collective property); moreover, the right to property is not an absolute human right, and in some cases owners’ property can be deprived, but cannot be arbitrarily deprived. The intervention of the State in private property must have a fair legal basis, and must strictly follow legal procedures. The State must give fair compensation for the unreasonable intervention or deprivation of personal property. Without adequate compensation, human rights would be violated in most cases. In fact, the property cannot be equally enjoyed by all people, and as compensation, those who lack it need recourse to the right to work and the right to social security.12. The Right to Political Participation. — Article 21 of the UDHR stipulates that ‘everyone has the right to take part in the government of his country, directly or through freely chosen representatives’, and ‘everyone has the right of equal access to public service in his country.’ It embodies the concept of freedom through participation. Article 21 also stipulates that ‘the will of the people shall be the basis of the authority of government’. This provision goes beyond the concept of many supporters in Rousseau’s social contract theory in the 18th Century, which only requires the consent of the governed and considers that only a few selected persons are eligible to participate in the exercise of power. The preamble to the UDHR states that ‘whereas it is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,’ which further clarifies the close relationship between human rights and government.The UDHR also places great emphasis on the relationship between law and democracy. Paragraph 2 of article 29 stipulates that ‘In the exercise of his rights and freedoms, 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.’ Eide also pointed out that, ‘Democracy and good governance require a constitutional framework with a division of power between the legislative, the executive and the judicial system. It is not enough to have a constitution, it must also be applied in practice, and there must be mechanisms to control the constitutionality of acts taken by the highest political bodies. Governmental and non-governmental institutions and processes must be tailored to the optimal functioning of inclusive democracy. Public management must comply with principles of accountability, transparency, people’s participation, decentralization, legislative capacity and the independence of the judiciary.’B. Economic, Social and Cultural RightsThe Declaration also sets out the basic content of economic, social and cultural rights (articles 22 to 27). Article 22 deals with economic, social and cultural rights indispensable for the protection of human dignity and the free development of human personality, as well as the right to social security. Social security entitles everyone to the benefits provided by the State. The following five articles refer to the right to work (article 23), the right to rest and leisure (article 24), the right to maintain the standard of living required (article 25), the right to education (article 26) and the right to participate freely in social and cultural life (article 27).Economic, social and cultural rights are interrelated and interdependent. It is necessary to have certain economic rights in order to enjoy social rights. Similarly, these rights are inseparable from civil rights. Roosevelt advocated the passage of the Economic Bill of Rights in his State of the Union Message to Congress in 1944. In 1993, at the World Conference on Human Rights, in which 171 countries took part, participants reiterated that ‘all human rights are universal, indivisible, interdependent and interrelated.’The core tenet of social rights is the right to maintain the minimum standard of living (article 25). It declares that everyone has the right to subsistence, including food, clothing, housing, medical care and necessary social services. The right to a minimum standard of living is more comprehensively stipulated in article 11 of the International Covenant on Economic, Social and Cultural Rights. In addition, article 25 also stipulates that ‘motherhood and childhood are entitled to special care and assistance.’ This right is more detailed in both article 10 of the International Covenant on Economic, Social and Cultural Rights and article 27 of the International Convention on the Rights of the Child.In order to realize social rights, we must also have relevant economic rights. Article 17 of the Declaration stipulates that everyone shall enjoy property rights and shall not be arbitrarily deprived of property; Article 23 stipulates the right to work, the right to appropriate working conditions, the right to equal pay for equal work and the right to social security if necessary. The enjoyment of the right to work is an important way for people to obtain sources of economic wellbeing. Article 24 stipulates that ‘everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.’ The right to rest and leisure is a necessary condition for people to keep healthy. Article 22 and paragraph 2 of article 25 provide for the right to social security. The establishment of this right sets clear obligations for the State. To realize these rights, it is necessary to adopt progressive measures through national efforts and international cooperation and to make unremitting efforts for the full realization of the rights step by step in accordance with the resources at the disposal of each country.Article 23 says that everyone has the right to work. The right to work is also the basis of personality independence. To maintain a minimum standard of living, we must have a stable source of income, and the enjoyment of the right to work provides the source. However, the right to work does not require the government to ensure that everyone has a job. Instead, there should be no discrimination in employment opportunities. Not only should government departments do their best to avoid discrimination, but the State also has an obligation to ensure that private employers do not discriminate in their employment because of differences in race, color, ethnicity, gender or political opinions. In addition, the right to work requires governments to implement policies of full employment as far as possible and to provide vocational training schools for people to learn. For the unemployed, the State should do its best to provide relief, which is the positive effort that the State should make. The right to social security is indispensable in the absence of necessary property or in the absence of work to ensure the required standard of living due to unemployment, aging or disability.Article 23 sets out the principle of equal pay for equal work. This principle is listed in the Declaration, which provides a basis for striving for equal pay for men and women in most parts of the world. More detailed provisions are made in article 7 of the International Covenant on Economic, Social and Cultural Rights, which not only stipulates the right to equal pay for equal work, but also stipulates the right to a decent living, and further emphasizes the rights of safety and health conditions as well as the enjoyment of holidays with pay, and so on.Article 26 of the Declaration covers the right to education, which belongs to both social rights and cultural rights. This article stipulates that everyone has the right to education. The right to education requires the State to establish and maintain a system of schools and other educational institutions in order to provide conditions on which everyone can go to school. If possible, the State shall provide free education. Moreover, ‘education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.’ The right to education is the means by which individuals acquire the qualifications for meaningful work and appropriate wages. From this point of view, it is obviously a social right. The right to education, like other rights, should be guaranteed to everyone without discrimination. The responsibility of the State is to promote equality of opportunity.Education is the basic way to increase personal knowledge, to enhance personal ability and to strengthen social human capital. The right to work is closely related to the right to education. If the right to work is the basis of human independence, for it provides income for individuals to ensure their right to an adequate standard of living and social security, then the enjoyment of the right to education lays the foundation for the enjoyment of the right to work. The right to education is not only a cultural right, but also a basic element of economic and social rights. According to article 27 of the Declaration, cultural rights include the following elements: ‘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, the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.’ Therefore, education is indispensable to ensure an appropriate standard of living, to get an ideal job, to achieve satisfactory results in work, and to participate in social life and cultural activities. In a sense, the right to education is closely related to economic and social rights. In addition, an important aspect of cultural rights is that minority groups have the right to maintain their own cultural identity, which has an impact on civil and political rights, as well as economic and social rights.In addition, the Declaration provides rights and obligations, freedom and order, and the relationship between individuals and society (articles 28 to 30). The Declaration covers a whole set of rights, in which different rights are interdependent and inseparable. As emphasized in the Vienna Declaration and Programme of Action issued at the Vienna World Conference on Human Rights, held under the auspices of the UN in 1993, all human rights are universal, indivisible, interdependent and interrelated. The international community must give human rights equal weight, with the same emphasis and with a fair and equal attitude. Of course, the significance of national and regional characteristics, as well as different historical, cultural and religious backgrounds, must be taken into account, but every country, regardless of its political, economic and cultural system, has an obligation to promote and protect all human rights and fundamental freedoms.IV. CRITICISM OF THE UDHR RIGHTS SYSTEMRegarding T. H. Marshall’s focus on the historical development in the West of those attributes which were vital to effective ‘citizenship’, a European scholar analyzes as follows. He distinguished three stages in this evolution, tracing the formative period in the life of each of these types of rights to a different century, and he related it to an evolving concept of citizenship. Civil rights had been the great achievement of the 18th Century, laying the foundation of the notion of equality of all members of society before the law; political rights were the principal achievement of the 19th Century by allowing for increasing broader participation in the exercise of sovereign power; social rights were the contribution of the 20th Century, making it possible for all members of society to enjoy satisfactory conditions of life.These rights have been embodied in the UDHR, which covers so many rights and freedoms in a document that is not too long. It should be said that it has done a good job. However, even though the Declaration has constructed a very rich system of rights, it is not impeccable. The most critical focus can be put on the fact that people’s right to self-determination was not mentioned, nor was the right to development or protection of minorities.The right to self-determination of peoples has been clearly defined in the Charter of the United Nations. Article 1(2) of Chapter I of the UN Charter provides: ‘To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of the people, and to take other appropriate measures to strengthen universal peace.’ In addition, article 55 of the UN Charter stipulates more clearly the right to self-determination. In the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, the people’s right to self-determination is defined in the same terms, as stipulated in article 1(1) of the International Covenant on Civil and Political Rights: ‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’In the 1960s, the right to self-determination played an important historic role. It was precise because the UN explicitly proposed people’s right to self-determination that the independence of many former colonies, trustees and non-self-governing territories in Asia, Africa and Latin America was justified by law. However, the right to self-determination was not mentioned in the UDHR. Although many people think that the Declaration is an authoritative interpretation of the Charter of the United Nations when they discuss the significance of the Declaration, it is difficult to find a basis for this view on the people’s right to self-determination.With the continuous development of the cause of human rights in the world and the independence of many former colonies, trustees and non-self-governing territories, the structure of the UN has changed accordingly. The Third World has put forward the theory of ‘the right to development’. This is undoubtedly another contribution to the cause of international human rights. Many developing countries regard survival and development as the primary human rights. At the same time, the right to development has also been widely endorsed by the international community. Article 1 of the Declaration on the Right to Development, adopted by the General Assembly in its resolution 41/128 on December 4, 1986, declares that the right to development is an inalienable human right. Paragraph 10 of part 1 of the Vienna Declaration and Programme of Action of the UN World Conference on Human Rights of 1993 reiterates that the right to development as stated in the Declaration on the Right to Development is a universal and indivisible right and an integral part of fundamental human rights. However, due to the limitations of the times, the Declaration, although it also mentions some relevant elements, such as the Declaration in its preamble, is determined to promote social progress and the improvement of living standards in greater freedom. Article 28 states: ‘Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’. However, there is no explicit reference to the right to development.The protection of minorities has become a human rights issue of widespread concern. As early as the establishment of the Commission on Human Rights by the ECOSOC, the issue has been explicitly raised by the council. However, it was difficult to reach consensus on minority rights at the UN level at that time. In resolution 217C (III), the UN General Assembly decided not to make special provisions on minority issues in the Declaration and asked the council ‘to ask the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities to make a thorough study of the problem of minorities, in order that the UN may be able to take effective measures for the protection of racial, national, religious or linguistic minorities’. According to the Yearbook of the United Nations (1948-49), on the issue of minorities, the delegations of the Soviet Union, Denmark and Czechoslovakia put forward several proposals on minority clauses, and the representatives of Cuba, Egypt, Haiti and Lebanon expressed their views during the discussion. Representatives of some countries, such as Brazil, France, and Mexico, considered that minorities were extremely complex and structured differently in different countries. They believed that some countries would not agree to include minority rights in the Declaration. Britain and the US believed that it would be impossible to reach a compromise on this issue in the old and new countries because of their different attitudes. The new countries wanted to assimilate immigrants, while the ethnic and national minorities still existed in the old countries. In addition, the British representative pointed out that all minority rights were fully reflected in the proposed declaration and put forward a proposal to delete the protection of minorities from the draft declaration, which was accepted by most members of the Commission on Human Rights. Therefore, there is no provision on minorities in the draft submitted by the Commission to the UN General Assembly. At that time, China and India were in favour of excluding minority rights, mainly considering that ‘the principle of non-discrimination has received such a prominent place in the Declaration’. It can also be seen from the fact that minority rights are not included in the Declaration that the conflicts and struggles of various cultural ideologies in the drafting process of the Declaration ultimately reflect the outcome of human rights projects on which it was difficult to reach an agreement, namely, the abandonment or choice of vague wording.In addition, as it is the result of consultation and reconciliation among different cultures, religions and ideologies in the world, some contents inevitably adopt some technical means, such as adopting more abstract expressions. The results, on the one hand, reserve some space for different countries to make their own explanations, and on the other hand, it has played a role of reconciliation to achieve a wider range of recognition so that it has universal acceptability. However, it has led to different explanations from different countries, based on their own understanding, which means certain elements of the Declaration have greater plasticity and uncertainty. ‘If the rights in the Declaration are open to various interpretations, and if there is nobody entrusted with the authority to interpret and apply the Declaration, then these rights may degenerate into a smokescreen for state policy.’ As a result, differences in the understanding of the Declaration have arisen among different countries, and disputes between ideologies and cultural traditions have long remained difficult to settle.As a common standard of achievement, the UDHR was formulated on the basis of cross-cultural compromises, and consensuses were reached among representatives from different cultural traditions, different religions and different kinds of ideologies. Both Western and non-Western cultures made contributions to the drafting of the UDHR, which consists of its rights system covering both civil and political rights and economic, social and cultural rights. From an in-depth study of the UN archives and the drafting process of the UDHR, we can see that the Declaration is a historic cross-cultural heritage for humankind.The adoption of the UDHR was a milestone for human civilization and many of its articles have been included and developed by international conventions, in particular, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, laying a solid foundation for the international human rights protection system. The Declaration is by no means flawless but of the UDHR, as a common standard for human rights, it has served the world well as a torch that has lit up the path for international human rights protection.
