Travaux Preparatoires of the Fair Trial Provisions -- Articles 8 to 11 -- of the Universal Declaration of Human Rights

I. Introduction

On 10 December 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights. ¹ In view of the fiftieth anniversary of the Declaration, this article reviews its origins. The article then focuses principally upon the drafting and meaning of the fair trial provisions of the Declaration. Rather than looking at the Declaration’s provisions article by article in numerical order, the article first considers the overall drafting history of the Declaration; second, it focuses on the principal fair trial provisions, Articles 10 and 11; and then deals with the drafting of Articles 8 and 9, which are complementary.

II. General Procedure

During the drafting of the UN Charter at the San Francisco Conference of 1945, representatives of Cuba, ² Mexico, ³ and Panama ⁴ each proposed the inclusion of a Declaration on the Rights and Duties of Nations and a Declaration on the Essential Rights of Man. ⁵ President Truman (United States), in his final remarks at the San Francisco conference, anticipated an International Bill of Rights to be attached to the Charter, ⁶ and Field Marshall Smuts (South Africa) also envisioned the addition of a human rights instrument to the Charter. ⁷ The San Francisco Conference decided, instead, to adopt Article 55 of the Charter, which set forth the purposes of the UN to promote “universal respect for, and observance of, human rights,” ⁸ and Article 56 which obligated member States to “take joint and separate action” for the achievement of the purposes of the UN set forth in Article 55, including the promotion of human rights. ⁹ The Charter also refers to human rights in the Preamble and Articles 1, 13, 62, 68, and 76. The more detailed drafting of an International Declaration on Human Rights or an International Bill of Rights ¹⁰ was deferred until the establishment of the UN Commission on Human Rights.

On 16 February 1946, the Commission on Human Rights (Commission) was established by the Economic and Social Council (Council) acting under Article 68 of the UN Charter, which anticipated the creation of the Commission. ¹¹ The Commission was established, as a subsidiary body of the Council, to submit proposals, recommendations, and reports to the Council regarding:

The Commission was initially created as a provisional “nuclear” Commission with nine members, appointed in their individual capacity, who held their first meetings from 26 April to 20 May 1946 at Hunter College in New York City. The nuclear Commission discussed the composition of the full Commission, how its future work should be conducted, ¹³ and the draft declarations submitted by Cuba ¹⁴ and Panama. ¹⁵ The nuclear Commission, however, limited its work on an International Bill of Rights to preparing for the full Commission and did not put forward any substantive proposals. ¹⁶

The Council studied the report from the nuclear Commission ¹⁷ during its Second Session, 25 May to 21 June 1946. In resolution 2/9, the Council decided that the full Commission should consist of eighteen member States rather than individuals. ¹⁸ In light of the drafting of an International Bill of Rights, the Council also asked the Secretary-General to make arrangements for “the collection and publication of plans and declarations on human rights by specialized agencies and non-governmental, national and international organizations.” ¹⁹

This preparatory work was accomplished by the UN Secretariat Division of Human Rights, which also studied the draft declarations submitted by Panama (on behalf of the American Law Institute), ²⁰ Chile (on behalf of the Inter-American Juridical Committee), ²¹ Cuba, ²² and the American Federation of Labor. ²³ The First Session of the full Commission on Human Rights was held at Lake Success, New York, from 27 January to 10 February 1947. Upon a proposal of Dr. Chang (China), the Commission decided initially to work under the assumption that the bill would be adopted as a General Assembly resolution. ²⁴ Hence, the Commission would draft a declaration rather than a convention because a declaration could be more promptly adopted by...