The Universal Declaration of Human Rights and Armed Conflicts: from Fragmentation to Complexity

• Author: Xavier Aurey
• Position: PhD Candidate - University of Paris II Panthéon-Assas. The author writes a PhD on «Bioethics and International Criminal Responsibility» under the direction of Professor Emmanuel Decaux (CRDH – University of Paris II – France).
• Pages: 48-67

Page 48

“No doubt it is true to say that international law is made for States, and not States for international law, but it is true only in the sense that the State is made for human beings, and not human beings for the State”. H. Lauterpacht, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY ²

Page 49

As we celebrated the 60^th anniversary of the Universal Declaration of Human Rights, it is clear that its place in the international legal order is still debated. Originally elaborated as a mere declaration of intent, it has acquired a fundamental place over the years, which finally comforted the initial idea of one of its fathers, René Cassin³.

Adopted after the Second World War, it finds its roots in the horror of the conflict⁴. The same one that gave birth to the movement of human rights⁵, as precisely pointed out by Theodor Meron. Therefore, the post-war period has seen the materialization of an idea stated since 1941 to establish a peace based on the respect of fundamental rights⁶. That objective appears from the preamble of the Charter of the United Nations:

“Determined […] - to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and, - to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and - to Page 50 establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” ⁷

Althought the issue of Human Rights is expressly stated in articles 1 and 55 of the Charter⁸, it is however only mentioned in a very general way. Even if its article 56 commits United Nations members “to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55”, those rigths are never defined. This was the reason why the Human Rights Commission was mandated to draft an international declaration that would determine the rights established by the United Nations System but not mentioned explicitly. In December 1948, this legal maieutic led to the adoption of the Universal Declaration of Human Rights (UDHR)⁹. As a Resolution of the UN General Assembly, the Declaration remains an important element. In addition, in 1962, the Human Rights Commission indicated that, generally, declarations must be used “in very rare occasions on issues of major importance, where members are expected to respect the maximum principles.”¹⁰ Therefore the UDHR appears as an “authorized interpretation of the principles of the U.N. Charter. Its full legal value is based on the Charter.”¹¹

Born out of the horror of war, the UDHR seems to leave outside any traces of its bellicose ancestry. However, René Cassin “had put all his efforts to ensure that we keep the traces of the war in the text.”¹² As Robert Kolb noticed, it is true that the ou-tlaw of the war by the San Francisco Charter did not prove that it would be taken into account by the United Nations. “It seemed to be a tacit but generally concensus rule that the Declaration would only applies in peace time.”¹³ Similarly, it appears that “in parallel, when drawing up the Geneva Convention of 1949, human rights were not at all the main question.”¹⁴ As it is underlined by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the 1995 Tadic case, an armed conflict is characterized by a struggle between organized armed forces¹⁵. On the opposite, peacetime is the period that does not enter into this definition. Even in 1948, it seemed easy to unders-Page 51tand that international humanitarian law would apply to periods of armed conflict, and human rights in other cases¹⁶.

Based on the voluntarism of Bodin and on the realism of Machiavel, the vision of the modern State confirms this approach. This theory emerges in the international scene with the peace treaty of Westphalia in 1648, which posed sovereignty and egality as the fundamental principles of international relations. In contrast to Suarez’¹⁷ or Grotius’¹⁸ theories, Hobbes has thus been able to limit the field of “international” law to the only States. The Jus Gentium became the natural law applying to States¹⁹, a natural law as the mere expression of power relations that are prevalent in a world deprived of an upper and all-powerful entity, in the absence of a universal Leviathan. Similarly, with Vattel, any nation able to govern itself without dependence to another foreign state is a sovereign State. The Jus Gentium has therefore been considered as the Law of the sovereigns. In the famous Lotus case of 1927, the International Permanent Court of Justice supported this argument by stating that “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will.”²⁰ As underlined by Professor Denis Alland, those States “formally equal and basically rival, […] find in the confrontation of their mutual powers a limit to their own liberty. So their situation creates mechanical calculations of reciprocity.”²¹ In the early XX^th century, we were still confronted to this model of the strict sovereign independance of States or “Westphalian model”²², also defined as the State sovereignty paradigm. It was at that time the most widely accepted system of representation of the international community.

If “war is merely a continuation of politic by other means”²³, it aims to international normativity and its reglementation is therefore the reflection of this balance of power. On the contrary, as a figure of the intimate relationship between the State and its citizens, Human Rights Law reports to the sole domestic sphere of States²⁴, to their Constitutional Law. Between a Law of War as the perfect expression of States’ sovereignty and an international community still in its infancy, the UDHR seemed to bePage 52able to “guide” men and nations only in those periods when the law of armed conflict would not apply.

However, the Tadic case shows us that the Declaration has, in practice, played a much more comprehensive role, including the development of the law of armed conflict:

“[T]he impetuous development and propagation in the international community of human rights doctrines, particularly after the adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changes in international law, notably in the approach to problems besetting the world community. A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach. Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well. It follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.” ²⁵

Based in particular on this finding, the ICTY concludes that “in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned.”²⁶ According to this chamber, international law continues to preserve “the legitimate interests of States”, but it “must gradually turn to the protection of human beings.”²⁷ This gradual replacement of the “State-sovereignty- oriented approach” by a “human-being-oriented approach”²⁸ covers up actually more than just an evolution of international law²⁹. We would indeed demonstrate that the UDHR is the anchor not of a quasi-linear evolution of international law, as seems to be understood by the ICTy, but of a revolution, a paradigm shift, using Thomas Samuel Kuhn’s words³⁰. This radical change occurs in three stages: firstly built on an awareness of an anomaly unsolved by the State-sovereignty paradigm; then on a theoretical and practical instability linked to efforts to resolve this crisis, including the possible readjustment of the original model; and finally on the establishment of a new conceptual framework.

Page 53

In the world of international law since the end of the First World War, the objective was to achieve universal peace. Basing its efforts on the only State-sovereignty model, the League of Nations had tried to reach that goal. But Nazism and Facism were the first elements of a global crisis, which had undermined this model³¹. Thus, the Second World War seems to demonstrate that the paradigm in force at this time was not able to resolve this anomaly of the international system, in a Kuhnien meaning. It was this awareness that led to the creation of the United Nations and the drafting of the Universal Declaration of Human Rights.

Facing this crisis of the international system, the first step, symbolized by the adoption of the UDHR, was a readjustment of the traditional model of sovereignty

(I). But the development of the United Nations and the emergence of new forms of conflict would again endanger this interpretation and see the emergence of a possible new paradigm (II), thus promoting a systemic approach of the International Society (III).

The UDHR or the expression of a mere readjustment of the traditional paradigm of sovereign State after the Second World War

Based on a network of mutual relations, States concerns are the only source of obligation under international law from the early twentieth century. After the First World War, western States were willing to achieve a universal and durable peace through the creation of an international entity in charge of its preservation. But...