The drafting of the Universal Declaration and of UN General Assembly Resolution 194(III)

The drafting of the Universal Declaration began in early 1947 and continued until the adoption of the resolution in December 1948.[7] The final version underscored “the inherent dignity and … the equal and inalienable rights of all members of the human family [as] the foundation of freedom, justice and peace in the world,”[8] and is now the cornerstone of the international human rights system. Yet, neither the Universal Declaration nor the UN Charter have succeeded in preventing the resurgence of armed conflicts and rights abuses, which, continued to ravage the world since 1948, notably in Palestine.

Indeed, the Universal Declaration also came in the aftermath of the Palestinian Nakba, or ‘catastrophe’, during which Zionist forces destroyed 531 Palestinian villages, killed over 10,000 of Palestine’s native population, and forcibly displaced some 800,000 Palestinians from their homes and property.[9] Denied return by Israel ever since, Palestinians have suffered an ‘ongoing Nakba’, forced to live as refugees in neighbouring countries or within the former territory of Mandate Palestine.[10]

The drafters of the Universal Declaration were not oblivious to the war that had ravaged Palestine nor to the fate of Palestinian refugees scattered across the region. Indeed, the plight of the refugees was discussed in the drafting of the provisions on the right to freedom of movement and on the right to asylum.[11] Morsink notes that the delegates were “very concerned about the waves of refugees produced by the 1948 Arab-Israeli war.”[12] As such, Article 13(2) of the Universal Declaration, which was adopted unanimously by the General Assembly in its Third Session,[13] thus recognised that “[e]veryone has the right to leave any country, including his own, and to return to his country” (emphasis added),[14] with the second part of the provision on the right of return having been added by the Lebanese delegation during the drafting stages.[15]

As a corollary to the right to leave one’s country, the Universal Declaration also recognised in Article 14(1) “the right to seek and to enjoy in other countries asylum from persecution.”[16] When Article 14 was discussed, the war over Palestine had already “caused four separate waves of refugees, the last of which, in October and November 1948, overlapped with the discussions and votes in the Third Committee on the right to asylum.”[17] At the time, the Egyptian delegate, Hassan Bagadi, stressed the centrality of “the questions of repatriation and rehabilitation” of Palestinian refugees, noting that the financial support given to them by the UN “could not represent a permanent solution; the only permanent solution was the return of the refugees to their own homes.”[18]

Another supporter of the repatriation of Palestinian refugees was UN Mediator on Palestine, Count Folke Bernadotte, who was assassinated in Jerusalem by the armed Zionist group Lehi on 17 September 1948, after he had submitted his report to the UN. This same report, and the accompanying resolution, was discussed by the General Assembly on 11 December 1948, a day after the adoption of the Universal Declaration.[19] Reflecting Bernadotte’s proposals, Resolution 194(III) was adopted on 11 December 1948, resolving that “the refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property”.[20] Resolution 194(III) was adopted by 35 votes in favour, 15 against, and 8 abstentions,[21] and reflected the right of return of Palestinian refugees, as already enshrined in customary international law at the time of the Nakba,[22] the Universal Declaration having already made reference to the right to return to one’s country.

The International Bill of Human Rights and 70 Years of Israeli Impunity

While the Universal Declaration remains a non-binding General Assembly resolution, many have argued that its contents reflect norms of customary international law, if only in part.[23] Today the Universal Declaration forms part of the international bill of human rights along with the two bedrock human rights Covenants – the International Covenant on Civil and Political Rights (ICCPR)[24] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[25] – adopted in 1966. The Universal Declaration establishes “freedom from fear and want” as “the highest aspiration of the common people”,[26] and recognises human dignity as an overarching principle in Article 1, which proclaims that “[a]ll human beings are born free and equal in dignity and rights.”

Besides granting Palestinian refugees the right to return to their country, the Universal Declaration further establishes the prohibition of discrimination (Article 2), including in territories under “limitation of sovereignty” such as occupied territory; it recognises the “right to life, liberty and security of person” (Article 3), while it prohibits “arbitrary arrest, detention or exile” (Article 9), and arbitrary deprivations of property rights (Article 17(2)); the Universal Declaration also grants freedom of movement and residence within one’s country (Article 13(1)), and enshrines “the right to a standard of living adequate for the health and well-being …, including food, clothing, housing and medical care and necessary social services, and the right to security” (Article 25(1)).

In addition, the ICCPR and the ICESCR, which supplemented the Universal Declaration, require States parties to respect, protect, and fulfil the cultural, civil, economic, political, and social rights of everyone in their territory or subject to their jurisdiction, including in occupied territory.[27] Both Covenants have been ratified by Israel, as Occupying Power, and are therefore applicable towards the Palestinian population in the occupied West Bank, including East Jerusalem, and the Gaza Strip, as well as in Israel.[28] More recently, the core human rights treaties have also been ratified by the State of Palestine.[29] Despite the gradual expansion of rights applicable to Palestinians, important gaps remain between the rights enshrined in the international bill and those enjoyed by Palestinians in practice.

Instead, for 70 years, Israel has denied Palestinians their right to self-determination, including the right to permanent sovereignty over natural resources.[30] Palestinian refugees continue to be denied return, while Palestinians on both sides of the Green Line continue to be forcibly transferred in an ongoing Nakba.[31] Palestinian citizens of Israel continue to face institutionalised discrimination, including most recently with the adoption of Israel’s Nation-State Law in July 2018.[32] Meanwhile in the OPT, Israel has entrenched its 51-year military occupation, expropriating Palestinian land and resources and continuing to displace and dispossess Palestinians through illegal settlement construction and expansion[33] and ongoing policies of population transfer, annexation, and colonisation of the Palestinian territory.[34]

Israel’s occupation has obstructed and severely restricted Palestinians’ attainment of rights and fundamental freedoms, including: the right to life,[35] the right to liberty and security of person,[36] and their right to an adequate standard of living,[37] amongst others. Notably, Israel also violates Palestinians’ right to freedom of movement within and from the OPT,[38] through its closure policy made up of the Annexation Wall and its associated permit-regime in the West Bank, and its prolonged 11-year closure of the Gaza Strip, which has made Gaza uninhabitable for Palestinians.[39] Israel’s Annexation Wall, in construction for the past 15 years, was determined in breach of international law by the International Court of Justice in 2004, which concluded that the Wall “severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel's obligation to respect that right.”[40] Similarly, Israeli settlement construction in the OPT amounts to a grave breach of international humanitarian law[41] and may be prosecuted as a war crime at the International Criminal Court (ICC).[42]

In the Gaza Strip, in particular, Palestinians continue to be severely deprived of their liberty as a result of Israel’s unlawful closure, amounting to collective punishment.[43] In Gaza, Palestinians now face chronic electricity and fuel shortages, high rates of unemployment and poverty, especially amongst the youth, and the inability to access basic services, including treatment for life-threatening illnesses.[44] Overall, the Gaza Strip has become uninhabitable as a result of Israel’s closure, in violation of international human rights law and in denial of the fundamental aspirations of the Universal Declaration, which sought “the advent of a world in which human beings shall enjoy … freedom from fear and want”.[45]

Accountability Key to Ending Human Rights Violations against Palestinians

70 years since the adoption of the Universal Declaration, the rights of Palestinians continue to be severely denied. Human Rights Day, commemorated globally on 10 December, is an occasion to reaffirm the inherent dignity and rights of Palestinians as members of the human family and to assert the right of the Palestinian people, as a whole, to self-determination, which includes the right to permanent sovereignty over natural wealth and resources and the right of return of Palestinian refugees. The preamble of the Universal Declaration proclaimed as 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”.[46] Yet, over the past 70 years, Israeli impunity for widespread and systematic human rights violations against Palestinians, including those which may amount to international crimes, has continued to prevail.

Given the pervasive human rights abuses to which the Palestinian people have been subjected since 1948, Palestine has become a litmus test for the effectiveness of the international human rights system as a whole. Only by ending Israel’s occupation of the Palestinian territory, realising Palestinian refugees’ right of return, and ensuring equal rights for all Palestinians, including citizens, without discrimination, can Palestinians’ faith in the international system be restored. This requires genuine accountability and a global effort to end Israel’s widespread and systematic abuses, including through the enactment of third State and corporate responsibility and the opening of an investigation by the ICC’s Office of the Prosecutor into grave breaches of international law committed in Palestine.[47]

*Rania Muhareb is Al-Haq’s legal researcher. She holds an LL.M. in international human rights and humanitarian law from the European University Viadrina and an undergraduate degree from Sciences Po Paris.

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[1] UN General Assembly, Procès Verbal, 3^rd Session, 183^rd Plenary Meeting, A/PV.183, 10 December 1948, Report of the Third Committee, UN Doc. A/777, p. 933.

[2] UN General Assembly, Resolution 217(III), Universal Declaration of Human Rights, UN Doc. A/RES/217(III), 10 December 1948 (hereinafter ‘UDHR’), Preamble.

[3] Charter of the United Nations and Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 3 (hereinafter ‘UN Charter’).

[4] Preamble, UN Charter.

[5] Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting & Intent (University of Pennsylvania Press 1999) (hereinafter ‘Johannes Morsink, The Universal Declaration of Human Rights), pp. 1-2. Under the UN Charter, human rights were recognized as a principle and pillar of the work of the UN in the Charter’s preamble and in Articles 1(2), 13(1)(b), 55(c), 62(2), 68, and 76(c).

[6] Article 1(2), UN Charter.

[7] The first draft of the Universal Declaration was recorded in UN Doc. E/CN.4/AC.l/3 of 4 June 1947. See Johannes Morsink, The Universal Declaration of Human Rights, pp. 4-6.

[8] Preamble, UDHR.

[9] Rania Muhareb, “The Nakba 70 Years On: Israel’s Failure to Erase Palestinian Collective Memory” (Al-Haq, 15 May 2018), available at: http://www.alhaq.org/advocacy/topics/civil-and-social-rights/1243-the-nakba-70-years-on-israels-failure-to-erase-palestinian-collective-memory.

[10] PHROC, “The ongoing Nakba must end: the time has come for the international community to act” (12 May 2018), available at: http://www.alhaq.org/advocacy/targets/palestinian-human-rights-organizations/1234-the-ongoing-nakba-must-end-the-time-has-come-for-the-international-community-to-act.

[11] Johannes Morsink, The Universal Declaration of Human Rights, pp. 73-79.

[12] Ibid., p. 75.

[13] United Nations (UN) General Assembly, Procès Verbal, 3^rd Session, 183^rd plenary Meeting, UN Doc. A/PV.183, 10 December 1948, p. 933.

[14] Article 13(2), UDHR.

[15] Johannes Morsink, The Universal Declaration of Human Rights, p. 75.

[16] Article 14(1), UDHR.

[17] Johannes Morsink, The Universal Declaration of Human Rights, p. 78.

[18] Ibid., p. 78.

[19] See UN General Assembly, Procès Verbal, 3^rd Session, 184^th-186^th Plenary Meetings, UN Docs. A/PV.184, A/PV.185, and A/PV.186, 11 December 1948.

[20] UN General Assembly, Resolution 194(III), Palestine – Progress Report of the United Nations Mediator, UN Doc. A/RES/194(III), 11 December 1948 (hereinafter ‘Resolution 194(III)’), para. 11.

[21] UN General Assembly, Procès Verbal, 3^rd Session, 186^th Plenary Meeting, UN Doc. A/PV.186, 11 December 1948.

[22] Francesca Albanese, “Ending seventy years of exile for Palestinian refugees” (Mondoweiss, 10 May 2018), available at: https://mondoweiss.net/2018/05/seventy-palestinian-refugees/.

[23] Hurst Hannum, “The UDHR in National and International Law” (1998) 3(2) Health and Human rights 144, at 148: “[t]hose who urge acceptance of the Declaration in toto as customary law are in a clear minority, and there is insufficient state practice to support such a wide-ranging proposition at this date.” See also Anne Lowe, “Customary International Law and International Human Rights Law: A Proposal for the Expansion of the Alien Tort Statute” (2013) 23 Indiana International & Comparative Law Review 523, at 537.

[24] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 1057 UNTS 171 (hereinafter ICCPR).

[25] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (hereinafter ICESCR).

[26] Preamble, UDHR.

[27] The international bill of human rights includes the UDHR, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

[28] Israel ratified the ICCPR and ICESCR on 3 October 1991.

[29] The State of Palestine acceded to the ICCPR and ICESCR on 2 April 2014. Both are applicable in the OPT.

[30] Article 1, ICCPR and ICESCR. See also Article 55(c), UN Charter (“[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”)

[31] PHROC, “The ongoing Nakba must end: the time has come for the international community to act” (12 May 2018), available at: http://www.alhaq.org/advocacy/targets/palestinian-human-rights-organizations/1234-the-ongoing-nakba-must-end-the-time-has-come-for-the-international-community-to-act.

[32] See, e.g., Israel’s Basic Law: Israel as the Nation-State of the Jewish People, adopted on 25 July 2018, which enshrines discrimination against Palestinians in Israel’s Basic Law and denies Palestinians their right to self-determination, including in the OPT. An English version of the Basic Law, translated by Adalah, is available here: https://www.adalah.org/uploads/uploads/Basic_Law_Israel_as_the_Nation_State_of_the_Jewish_People_ENG_TRANSLATION_25072018.pdf.

[33] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, p. 136 (hereinafter ‘ICJ Wall Opinion’), para. 120.

[34] PHROC, “The ongoing Nakba must end: the time has come for the international community to act” (12 May 2018), available at: http://www.alhaq.org/advocacy/targets/palestinian-human-rights-organizations/1234-the-ongoing-nakba-must-end-the-time-has-come-for-the-international-community-to-act.

[35] Article 6(1), ICCPR.

[36] Articles 9-10, ICCPR.

[37] Article 11(1), ICESCR.

[38] Article 12(1), ICCPR. Article 13, UDHR.

[39] Al-Haq, “51 Years of Israeli Occupation, 11 Years of Closure of the Gaza Strip: Time for Action, Time for Sanctions” (6 June 2018), available at: http://www.alhaq.org/advocacy/targets/third-party-states/1268-51-years-of-israeli-occupation-11-years-of-closure-of-the-gaza-strip-time-for-action-time-for-sanctions.

[40] ICJ Wall Opinion, para. 122.

[41] Convention (IV) relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) (hereinafter ‘Fourth Geneva Convention’), Article 147.

[42] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (hereinafter ‘Rome Statute’), Article 8(2)(a)(vii).

[43] Article 33, Fourth Geneva Convention.

[44] See, for example, Al-Haq, “Gaza Closure Enters its Tenth Year” (20 June 2017), available at: http://www.alhaq.org/advocacy/topics/gaza/1123-gaza-closure-enters-its-tenth-year.

[45] Preamble, UDHR.

[46] Preamble, UDHR.

[47] On 5 December 2018, the Office of the Prosecutor (OTP) of the ICC reported that “the Prosecutor intends to complete the preliminary examination as early as possible.” OTP, Report on Preliminary Examination Activities (2018), para. 284, available at: https://www.icc-cpi.int/Pages/item.aspx?name=181205-rep-otp-PE.