The UN Charter and Human Rights: The Constitutional Foundation

From Domestic Jurisdiction to International Concern

I. Introduction: The Paradigm Shift

Before 1945, international law was dominated by the Westphalian concept of State Sovereignty. How a state treated its own nationals was a matter of “domestic jurisdiction” (domaine réservé). The Charter of the United Nations (1945) fundamentally ruptured this tradition.

For the human rights scholar, the Charter is the “Constitutional Moment” that internationalized human rights. It transformed the individual from a mere object of international compassion (like in the League of Nations minority treaties) into a subject of international law with rights that limit state power.

II. Key Charter Provisions: The Normative Framework

The Charter does not list specific rights (that was left to the UDHR), but it establishes the legal obligation to protect them.

1. The Preamble

“We the peoples of the United Nations determined… to reaffirm faith in fundamental human rights, in the dignity and worth of the human person…”

Significance: It places human rights on equal footing with the other primary goal of the UN: the prevention of war.

2. Purposes (Article 1(3))

Defines one of the four purposes of the UN:

“To achieve international co-operation… in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”

3. The “Pledge” (Articles 55 & 56) – The Core Obligation

This is the jurisprudential anchor of modern human rights law.

Article 55(c): The UN shall promote “universal respect for, and observance of, human rights.”
Article 56: “All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.”
Legal Debate: Early positivists (like Manley O. Hudson) argued this was too vague to be binding. However, the dominant view today (backed by the ICJ) is that Article 56 creates a binding legal obligation on states to cooperate with the UN to protect human rights.

4. Domestic Jurisdiction Clause (Article 2(7))

The Conflict: This article prohibits UN intervention in matters “essentially within the domestic jurisdiction” of a state.
Resolution: International law has evolved to establish that gross violations of human rights are no longer “essentially domestic.” They are matters of international concern (erosion of the reserve domain).

III. Institutional Architecture

The Charter authorized the creation of the machinery that monitors these rights:

General Assembly (Art 13): Initiates studies and makes recommendations.
ECOSOC (Art 62): Authorized to set up commissions. This led to the creation of the Commission on Human Rights (now the Human Rights Council), which drafted the UDHR and the Covenants.
Security Council (Chapter VII): Can determine that massive human rights violations (e.g., genocide, apartheid) constitute a “threat to international peace and security,” authorizing sanctions or force (e.g., Rhodesia, South Africa, Libya).

IV. Relevant Case Law

how the ICJ has interpreted these Charter provisions to create binding obligations.

Case 1: Legal Consequences for States of the Continued Presence of South Africa in Namibia (1971)

Court: International Court of Justice (Advisory Opinion)

Summary Facts: South Africa held a mandate over South West Africa (Namibia) from the League of Nations. It introduced the system of Apartheid to the territory. The UN General Assembly terminated the mandate, declaring South Africa’s occupation illegal. The Security Council requested an ICJ opinion on the legal consequences.
Issue: Did South Africa’s policy of Apartheid violate its obligations under the UN Charter, specifically the pledge in Articles 55 and 56?
Decision:Yes, the occupation was illegal.
- The Court ruled that the UN Charter is not just a political declaration.
- By practicing Apartheid (racial discrimination), South Africa committed a flagrant violation of the purposes and principles of the Charter.
- The Court read the Charter’s human rights provisions as binding legal norms, ruling that “to establish… and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter.”

Case 2: Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain) (1970)

Court: International Court of Justice (ICJ)

Summary Facts: The case itself was a dry commercial dispute about the nationality of a corporation (Barcelona Traction) and whether Belgium had standing to protect shareholders against Spain.
Issue: (Procedural) Does a state have standing to protect rights? (Substantive Dictum) What is the nature of obligations states owe regarding human rights?
Decision: While Belgium lost on standing, the Court made a landmark dictum (statement of law) distinguishing between two types of obligations:
1. Vis-à-vis another state (contractual/reciprocal).
2. Vis-à-vis the international community as a whole (Erga Omnes).
Significance for Charter Law: The Court stated that obligations erga omnes derive from, among other things, “the principles and rules concerning the basic rights of the human person,” including protection from slavery and racial discrimination. This cemented the idea that Charter-based human rights are the concern of all states.

Case 3: United States Diplomatic and Consular Staff in Tehran (USA v. Iran) (1980)

Court: International Court of Justice (ICJ)

Summary Facts: Iranian students seized the US Embassy in Tehran and held diplomats hostage. The Iranian government failed to intervene and later endorsed the act.
Issue: Did Iran’s failure to protect the diplomats violate general international law and the UN Charter?
Decision:Violation Found.
- The Court ruled that “wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles of the Universal Declaration of Human Rights.”
- Significance: This linked the Charter directly to the UDHR, treating them as a unified normative standard for evaluating state conduct.

V. Critical Analysis (The “Soft Law” to “Hard Law” Bridge)

the status of the Universal Declaration of Human Rights (UDHR) in relation to the Charter.

The Charter mentions “human rights” but defines none.
The UDHR (1948) is considered the authoritative interpretation of the vague phrase “human rights” in Article 55.
Therefore, violating the UDHR is arguably a violation of the Charter itself.

Conclusion:

The UN Charter is the bedrock. It did not merely “recommend” human rights; it constituted them as a pillar of the international legal order. Through Articles 55 and 56, and subsequent ICJ jurisprudence (Namibia, Barcelona Traction), the Charter transformed human rights from a moral aspiration into a positive legal obligation binding on the community of nations.