Sun Pinghua - Sun Yinghui - The Cross Cultural Origin of The Universal Declaration of Human Rights

COMMENTARY
THE CROSS-CULTURAL ORIGIN OF THE UNIVERSAL

DECLARATION OF HUMAN RIGHTS
􀃐
Sun Pinghua* Sun Yinghui**
I. INTRODUCTION
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 UDHR
Article 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
* Professor at China University of Political Science and Law.
** In-house Counsel of State Grid International Development Co., Ltd.
􀃑 AsbjØrn Eide, The Historical Significance of the Universal Declaration, 50(158) International Social Science Journal 475 (1998).
107
108 CHINA LEGAL SCIENCE 2020
will analyze the cross- cultural sources and ideological basis of the
Declaration from three aspects.
A. Western Cultural Sources of the UDHR
Viewed 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.
􀃒 QI YANPING, THE STUDY OF THE MAGNA CARTA, at 319 (China University of Political Science and Law Press, 2007).
􀃓 Id., 5-6.
􀃔 YANG YUGUAN, INFLUENCE OF INTERNATIONAL HUMAN RIGHTS LAW ON CHINA’ S CRIMINAL AND JUDICIAL
REFORM, at 27 (China Legal Publishing House, 2008).
􀃕 Xu Xianming, System and Classification of Human Rights, 6 Chinese Social Sciences 95 (2000).
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107 COMMENTARY 109
􀃖
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 UDHR
By 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
􀃖 ROOSEVELT’ S FOUR FREEDOMS, at http://www.americanrhetoric.com/speeches/fdrthefourfreedoms.htm (Last visted on February
16, 2020).
􀃗 Sun Pinghua, Chang Pengchun’ s Contributions to International Human Rights in Global Governance, 41(4) Human Rights Quarterly
982 (2019).
􀃘 Zeng Hong & Cao Xinghua, Latin America’ s Contributions to the Formation of the Post-war International Human Rights, 2 Journal
of Hu’nan Public Security College 136 (2008).
􀃙 ANTONIA CASSESE, HUMAN RIGHTS IN A CHANGING WORLD, at 33 (Temple University Press, 1990).
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
􀁒 THE CHALLENGE OF HUMAN RIGHTS: CHARLES MALIK AND THE UNIVERSAL DECLARATION, at 122 (Habib Malik
􀁉
ed., Charles Malik Foundation in Association with the Centre for Lebanese Studies, 2000).
􀁓 Gao Hongjun, Islamic Views on Human Rights, 3 World Religion Research 1 (1995).
􀁉
􀁔 Feng Huaixin, Basic Spirit of Islamic Views on Human Rights, 1 Muslim in China 6 (2002).
􀁉
􀁕 Sun Pinghua, Chang Pengchun’
􀁉 s Concept of Human Dignity for the Universal Declaration of Human Rights, 12(1) Journal of East
Asia and International Law 91 (2019).
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107 COMMENTARY 111
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.
􀁉 Sun Pinghua, supra note 7.
􀁖
􀁗 CHARLES MALIK, DECEMBER 9, 1948, SPEECH TO THE GENERAL ASSEMBLY, in THE CHALLENGE OF HUMAN
􀁉
RIGHTS: CHARLES MALIK AND THE UNIVERSAL DECLARATION, at 121 (Habib Malik ed., Charles Malik Foundation in
Association with the Centre for Lebanese Studies, 2000).
􀁘 MARY GLENDON. A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN
􀁉
RIGHTS, at 77 (Random House 2001).
C. Cross-cultural Consensuses Serving as

Ideological Foundations for the UDHR
Through 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
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107 COMMENTARY 113
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 UDHR
Although the Declaration is not an international convention, it provides

specific content of basic human rights. Donnelly􀁉
􀁛
, an American human rights
􀁉 AsbjØrn Eide, supra note 1.
􀁙
􀁚 SUN PINGHUA, THE STUDY OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, at 396 (Peking University Press,
􀁉
2012).
􀁛 JACK DONNELLY, INTERNATIONAL HUMAN RIGHTS, at 6 (Westview Press, the Second Edition, 1998).
􀁉
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 Rights
Most 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
􀁒 SUN PINGHUA, HISTORIC ACHIEVEMENT OF A COMMON STANDARD: CHANG PENGCHUN AND THE UNIVERSAL
􀁊
DECLARATION OF HUMAN RIGHTS, at 350 (Springer, 2018).
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107 COMMENTARY 115
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)
􀁊 YANG YUGUAN, supra note 4, 28.

􀁓
􀁔 INTERNATIONAL CONVENTIONS ON HUMAN RIGHTS, at 50 (Hu Zhiqiang ed., China Translation and Publishing Corporation,
􀁊
2004).
􀁕 Id.
􀁊
􀁖 Id., 51.
􀁊
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
􀁊 Id.
􀁗
􀁘 Sun Pinghua, Protection of the Right to Life by International Human Rights Law, 7(5) Human Rights 25 (2008).
􀁊
􀁙 NINA LASSEN, ARTICLE 4, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF
􀁊
ACHIEVEMENT, at 104 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
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107 COMMENTARY 117
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
􀁊 Id., 118.
􀁚
􀁛 Sun Pinghua & Xie Yan, Human Trafficking and Sex Slavery in the Modern World, 7(1) Albany Government Law Review 91
􀁊
(2014).
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
􀁋 Supra note 22, 51.

􀁒
􀁓 YANG YUGUAN, HUMAN RIGHTS LAW: INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, at 165- 166
􀁋
(Chinese People’ s Public Security University Press, 2003).
􀁔 Supra note 22, 203.
􀁋
􀁕 Id., 194.
􀁋
Vol. 8：
107 COMMENTARY 119
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
􀁖 JOHANNA NIEMI- KIESILÄINEN, ARTICLE 9, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON
􀁋
STANDARD OF ACHIEVEMENT, at 21 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
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
􀁗 LAURI LEHTIMAJA & MATTI PELLONPÄÄ, ARTICLE 10, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A
􀁋
COMMON STANDARD OF ACHIEVEMENT, at 223 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers,
1999).
􀁘 Id., 230.
􀁋
Vol. 8：
107 COMMENTARY 121
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
􀁋 YANG YUGUAN, supra note 31, 258.

􀁙
􀁚 Id., 325-326.
􀁋
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
􀁛 RAIMO LAHTI, ARTICLE 11, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF
􀁋
ACHIEVEMENT, at 248-249 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
􀁒 YANG YUGUAN, supra note 31, 334.
􀁌
􀁓 LARS ADAM REHOF, ARTICLE 12, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD
􀁌
OF ACHIEVEMENT, at 251-252 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
􀁔 YANG YUGUAN, supra note 31, 336-337.
􀁌
Vol. 8：
107 COMMENTARY 123
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
􀁌 LARS ADAM REHOF, supra note 41.
􀁕
􀁖 ATLE GRABL- MADSEN, GÖRAN MELANDER & ROLF RING, ARTICLE 13, in THE UNIVERSAL DECLARATION OF
􀁌
HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT, at 276 (Gudmundur Alfredsson & AsbjØrn Eide eds.,
Martinus Nijhoff Publishers, 1999).
(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.’
􀁌 YANG YUGUAN, supra note 31, 342.
􀁗
􀁘 Id., 358-359.
􀁌
􀁙 MORTEN KJӔRUM, ARTICLE 14, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD
􀁌
OF ACHIEVEMENT, at 279 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
Vol. 8：
107 COMMENTARY 125
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
􀁚 INETA ZIEMELE & GUNNAR G. SCHRAM, ARTICLE 15, in THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: A
􀁌
COMMON STANDARD OF ACHIEVEMENT, at 221 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff Publishers,
1999).
Vol. 8：
107 COMMENTARY 127
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
􀁛 STÉPHANIE LAGOUTTE & ÁGÚST THÓR ÁRNASON, ARTICLE 16, in THE UNIVERSAL DECLARATION OF HUMAN
􀁌
RIGHTS: A COMMON STANDARD OF ACHIEVEMENT, at 335 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff
Publishers, 1999).
􀁒 Id., 356.
􀁍
􀁓 CATARINA KRAUSE & GUDMUNDUR ALFREDSSON, ARTICLE 17, in THE UNIVERSAL DECLARATION OF HUMAN
􀁍
RIGHTS: A COMMON STANDARD OF ACHIEVEMENT, at 359 (Gudmundur Alfredsson & AsbjØrn Eide eds., Martinus Nijhoff
Publishers, 1999).
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,
􀁔 Id., 378.
􀁍
Vol. 8：
107 COMMENTARY 129
transparency, people’
s participation, decentralization, legislative capacity and the
􀁕
􀁍
independence of the judiciary.’
B. Economic, Social and Cultural Rights
The 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
􀁍 AsbjØrn Eide, supra note 1.

􀁕
􀁖 Paragraph 5 of Part I of the Vienna Declaration and Programme of Action.
􀁍
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
Vol. 8：
107 COMMENTARY 131
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 SYSTEM
Regarding 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
􀁗 ASBJØRN EIDE, ECONOMIC, SOCIAL AND CULTURAL RIGHTS AS HUMAN RIGHTS, in ECONOMIC, SOCIAL AND
􀁍
CULTURAL RIGHTS: A TEXTBOOK, at 13 (AsbjØrn Eide, Catarina Krause & Allan Rosas eds., Martinus Nijhoff Publishers,
2003).
Vol. 8：
107 COMMENTARY 133
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
􀁍 SALES N., YEARBOOK OF THE UNITED NATIONS 1946-47, at 523 (Department of Public Information, 1947).
􀁘
􀁙 This resolution was one of the resolutions adopted by the UN General Assembly, dealing with minority rights.
􀁍
􀁚 DEPARTMENT OF PUBLIC INFORMATION UNITED NATIONS, YEARBOOK OF THE UNITED NATIONS (1948- 49), at
􀁍
544 (Department of Public Information, 1950).
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.
V. CONCLUSION
As a common standard of achievement, the UDHR was formulated on

the basis of cross-cultural compromises, and consensuses were reached
􀁛 ASBJØRN EIDE, THE NON-INCLUSION OF MINORITY RIGHTS: RESOLUTION 217C(III), in THE
􀁍 UNIVERSAL
DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT, at 707 (Gudmundur Alfredsson &
AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
􀁒 MARTTI KOSKENNIEMI, PREAMBLE OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, in THE
􀁎 UNIVERSAL
DECLARATION OF HUMAN RIGHTS: A COMMON STANDARD OF ACHIEVEMENT, at 34 (Gudmundur Alfredsson &
AsbjØrn Eide eds., Martinus Nijhoff Publishers, 1999).
Vol. 8：
107 COMMENTARY 135
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.
(Revised by Robert D. Roderick)

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COMMENTARY

THE CROSS-CULTURAL ORIGIN OF THE UNIVERSAL

In accordance with article 68 of the Charter of the United Nations, the

II. CROSS-CULTURAL SOURCES OF THE UDHR

A. Western Cultural Sources of the UDHR

B. Non-Western Cultural Sources of the UDHR

By exploring the UN archives we can see that 58 States participated in the

C. Cross-cultural Consensuses Serving as

Through two years of negotiations and discussions, cross- cultural

III. FUNDAMENTAL RIGHTS SYSTEM OF THE UDHR

Although the Declaration is not an international convention, it provides

scholar, listed 34 international human rights items proclaimed in the Declaration:

A. Civil Rights and Political Rights

􀁊 YANG YUGUAN, supra note 4, 28.

stipulates that‘sentence of death shall not be imposed for crimes committed by

protection still has a long way to go.

􀁋 Supra note 22, 51.

􀁋 YANG YUGUAN, supra note 31, 258.

judicial justice. As Lahti concluded:‘The fundamental rights or principles which

In accordance with the spirit of human rights protection in the Declaration,

During the deliberations on the draft declaration, the representative of the

B. Economic, Social and Cultural Rights

􀁍 AsbjØrn Eide, supra note 1.

responsibility of the State is to promote equality of opportunity.

IV. CRITICISM OF THE UDHR RIGHTS SYSTEM

Regarding T. H. Marshall’ s focus on the historical development in the West

As a common standard of achievement, the UDHR was formulated on

among representatives from different cultural traditions, different religions

(Revised by Robert D. Roderick)

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