Genocide Convention and Universal Declaration of Human Rights

The great powers wanted a security organisation and accepted human rights language because smaller states and American civil society pressed for it. The provisions were general, unenforceable and paired with a firm bar on intervention in domestic affairs. What was conceded cost the drafters nothing.

Four victorious governments defined the crimes they would prosecute, in a charter drafted for a specific set of defendants. That the definitions later became general law is remarkable and was not the primary purpose, which was to try the men in custody with a legal basis.

Its members were governments, not experts, and states appointed representatives who defended their own conduct. The commission could receive complaints and had no power to act on them, a limitation adopted deliberately in its first session. It was built to articulate standards, not to apply them.

The great powers largely left the drafting to a small committee, because a declaration without binding force was not worth their attention. Neglect gave the drafters room. Documents produced in the margins of great-power concern sometimes acquire an authority nobody anticipated.

States accepted a binding treaty on genocide and then attached reservations, declined the court's jurisdiction and avoided using the word for decades when it would have obliged them to act. The obligation was accepted in principle and managed in practice with considerable skill.

Forty-eight votes in favour, none against, eight abstentions, and no binding force whatever. States could endorse it precisely because it obliged them to nothing. The declaration's near-unanimity and its lack of enforcement are the same fact viewed from two sides.

Twenty ratifications brought it into force and the major powers were slow to join, the United States taking forty years. Signing a treaty and accepting its jurisdiction are different acts, and states routinely perform the first while deferring the second for as long as convenient.

The decision to split civil and political rights from economic and social ones followed the Cold War divide exactly, each bloc protecting the category it preferred and diluting the other. A technical drafting decision encoded a rivalry, and the split has shaped the field ever since.

Article 2(7) protected domestic jurisdiction precisely so that the rights language could not become a licence to interfere. Every great power had conduct it did not wish examined, from segregation to the Gulag to empire, and the exception was written for all of them equally.

Crimes against humanity were tied at Nuremberg to the conduct of war, which limited their reach and protected states from scrutiny of what they did to their own populations in peacetime. That limitation suited every drafting power, and removing it took another fifty years.

The Cold War arrived within its first two years, and every substantive question split along bloc lines: civil and political rights urged by the West, economic and social rights by the Soviet Union. The commission's agenda was structured by a rivalry that had nothing to do with rights.

Both blocs wanted the declaration to endorse their own model of society, and the resulting text includes civil, political, economic and social rights together. The compromise reflected a standoff, and when the binding covenants came to be written the same standoff split them into two treaties.

Political and cultural groups were excluded from the definition at Soviet insistence, which removed the categories most likely to implicate a state in its treatment of its own opponents. The scope of the crime was negotiated by the states that would be bound by it.

The abstentions are informative: the Soviet bloc, Saudi Arabia and South Africa, each objecting to provisions that touched its own arrangements. Even a non-binding text was read by states as a potential weapon, and they declined to hand it over.

Entry into force created obligations that were not invoked in Cambodia, in Bangladesh or for years in Rwanda, because invoking them would have required states to act where they had no interest. Legal duty does not generate the will its performance requires.

Fifteen years elapsed between this decision and adoption, and another ten before entry into force, because neither superpower wanted binding scrutiny while the confrontation lasted. The pace of legalisation tracked the political relationship rather than any drafting difficulty.

For the first time a general treaty of the states system made the treatment of people by their own government a matter of international concern. However weak the obligation, the subject had been admitted to the agenda, and everything in this field since has been built on that admission.

The definitions established that individuals hold rights the state may not violate even when domestic law authorises the violation. Placing the person rather than the state at the centre of the legal claim is the conceptual move on which all later human rights law depends.

Eleanor Roosevelt chaired it and used her standing to keep the drafting moving when governments stalled. Individual advocacy inside an intergovernmental body has narrow limits and real effects, and the declaration exists in the form it does partly because of who held the chair.

The Secretariat compiled constitutions and rights declarations from across the world and the committee worked from that comparison, so the text drew on many traditions rather than transcribing one. Its universality is a matter of drafting method, and the method was deliberate.

The convention obliges parties to prevent as well as punish, and applies in peace as well as war, which goes further than Nuremberg had. It is one of the few instruments imposing a duty to act on states not directly involved, and that duty has been honoured rarely.

Thirty articles covering the person, the law, politics, work, education and standard of living set out a complete account of what a decent society owes its members. It has since been incorporated into dozens of constitutions and cited in countless judgments. Influence arrived through domestic law.

The convention gives individuals no standing: only states may bring cases. A treaty protecting people that can be enforced only by governments depends on some government choosing to take up a cause not its own, and that choice has been made very rarely.

Separating the two covenants allowed different enforcement regimes: immediate obligations for civil and political rights, progressive realisation for economic ones. That distinction is defensible and it also created a hierarchy in practice, with one set treated as real law and the other as aspiration.

The Charter created a commission and required it to be established, which is the operative provision. Vague substantive commitments plus a mandated institution to develop them is a common and effective design: the body then generates the specificity the treaty lacked.

Written categories with elements that a court can apply are what distinguish a legal regime from a moral condemnation. The London Charter supplied definitions precise enough to be litigated, and their subsequent codification and reuse followed from that precision.

The commission decided at the outset that it had no power to act on the thousands of petitions it received, and that decision stood for twenty years. An institution that declines jurisdiction early rarely acquires it later, and this one required a wholly new mechanism in 1967.

The committee decided early to separate the declaration from the binding covenants, so that a statement of principle could be adopted quickly while enforceable obligations were negotiated slowly. Sequencing the easy instrument first is why the declaration exists at all: the covenants took eighteen more years.

Enforcement was left to national courts and to a hypothetical international tribunal that did not exist for another half century. A treaty whose mechanism is a future institution operates as a standard rather than a remedy until that institution arrives, and this one did so for fifty years.

Having no compliance machinery, the declaration worked instead as a reference standard: something for treaties to codify, courts to cite and organisations to measure against. A widely accepted benchmark can do more work than a weak enforcement mechanism, which is not the usual expectation.

Its most-used provision has proved to be Article IX, the compromissory clause allowing disputes to go to the International Court of Justice. Cases have been brought under it in recent decades far more than in its first fifty years, so a dormant mechanism can be activated much later.

The covenants eventually came with reporting requirements, committees and, later, individual complaint procedures. Building machinery incrementally over three decades is how this regime acquired whatever bite it has, and each step was resisted at the time.

Sovereignty and human rights were written into the same document with no way of reconciling them, and international society has argued about the relationship ever since. The Charter did not resolve the tension; it institutionalised it, and that may have been the only available course.

International society asserted a jurisdiction over individuals that cut through the sovereign's traditional monopoly. This is one of the sharpest extensions of the society's reach in its history, and it was made by four states acting for the whole in circumstances of extraordinary licence.

Establishing a permanent body to define rights meant international society had accepted that such standards were its business to determine collectively rather than to leave to each state's tradition. The competence was the concession; the content came afterwards.

Chang of China, Malik of Lebanon, Cassin of France and Humphrey of Canada shaped the text between them, which mattered for how the result would be received. A standard for the whole society of states drafted only by Europeans would have carried a permanent defect.

Adoption was unanimous, which is unusual and significant: every state present accepted that the deliberate destruction of a people is a crime that concerns all of them. That is about as close as international society comes to a constitutive moral proposition.

International society declared a common standard of achievement for all peoples and all nations, which asserts that its members share a moral vocabulary. That claim is disputed in every generation and has never been withdrawn, and the argument over it is now conducted in the declaration's own terms.

A rule against the destruction of peoples became part of the law binding members of international society, and is now generally regarded as binding even on states that have not signed. Few obligations have acquired that status, and its acquisition took decades of assertion.

Together with the declaration, the two covenants form what is called the international bill of rights, a constitutional vocabulary for international society. That it took twenty-eight years to complete says something about how slowly the society's rules are actually made.

The phrase human rights appears seven times, and its inclusion owed much to campaigning by American organisations and by delegations from smaller states shaken by what had just been discovered in Europe. The revelation of the camps changed what a founding document had to say.

Lemkin had spent years arguing that a word was needed for the destruction of peoples, and that the absence of a name was part of why the thing went unaddressed. Creating the category was itself the intervention, and the subsequent law followed the vocabulary.

The drafters came from very different legal and philosophical traditions, and they proceeded by finding agreement on practical conclusions while disagreeing about foundations. That method produced a text with genuine universality of endorsement and permanently contested justifications.

The drafters argued over whether to ground the rights in God, in nature or in reason, and resolved it by grounding them in nothing explicit. That silence was the condition of agreement, and it left the declaration's authority resting on shared assertion rather than shared belief.

Naming the crime made it possible to argue about whether a given case qualified, which is why so much political energy has since gone into whether the word applies. The label carries obligations, so its application became a contest with legal and practical consequences.

The declaration created the language in which political grievance is now expressed almost everywhere, by dissidents, movements and governments alike. Providing the vocabulary in which claims are made is a deeper form of influence than compelling any particular outcome.

Governments accused of genocide invariably deny that the word applies rather than defending the conduct as justified, and that pattern is evidence of how completely the norm was internalised. Nobody argues any longer that destroying a people might be permissible; the argument is always about whether this particular case counts, which is a considerable achievement for a treaty with almost no enforcement.

The choice of two instruments made it possible to argue that one kind of right is more real than the other, an argument still conducted in every debate about development and freedom. A drafting compromise in 1951 continues to structure how people think about what rights are.