Thursday, March 4, 2021

The Universal Declaration of Human Rights (UDHR)

(Source: Human Rights Law Teaching Material

Demelash Shiferaw & Yonas Tesfa)

The adoption of declaration of the human rights was envisaged as the very first item on the United Nations agenda within the proramme of the International Bill of Human Rights. The task of preparing a declaration was given to the Commission on Human Rights which started its work in 1947 and established for that purpose a drafting committee of eight members chaired by Mrs. Eleanor Roosevelt. In 1948 the Commission adopted the draft Declaration and submitted it through the Economic and Social Council to the General Assembly. After lengthy discussions at the General Assembly and its Third Committee, the Declaration was adopted on 10 December 1948 during the third session of the Assembly at the Chaillot Palace in Paris. The Declaration was adopted by forty-eight votes in favor, none against and eight abstentions (Byelorussia, Czechoslovakia, Poland, Saudi Arabia, South Africa, Ukraine, USSR and Yugoslavia). Altogether the Declaration was drafted and eventually adopted within two years. This unquestionable success might not have been achieved in subsequent years due to increasing Cold War tensions between East and West which detrimentally affected the work of the United Nations in human rights and other fields.

 

The Universal Declaration was adopted through Resolution 217(III) which contained five parts: Part A, the text of the Declaration as such; Part B, Right of Petition; Part C, Fate of Minorities; Part D, Publicity to be Given to the Universal Declaration of Human Rights; and Part E, preparation of a Draft Covenant on Human Rights and Draft Measures of Implementation. Contained in part A of Resolution 217(III), the Universal Declaration is made up of the Preamble and 30 articles which comprise its operative part. Typically for international instruments, the Preamble spells out the philosophy, motives and purposes which guided the drafters of the Universal Declaration.

 

The Preamble to the Declaration is significant for several reasons. Its fundamental message lies in the statement that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world (Paragraph 1). The Preamble thus refers to the concepts of inherent human dignity and the inalienable nature of human rights as the philosophical sources of the Declaration and inspirations for further development of human rights. Although such a formulation is often characterized as reflection of Western liberalism, nonetheless these concepts are discernible in all human cultures of the world. It is thus particularly significant that the Preamble calls for inter-cultural consensus by indicating that a common understanding of these rights and freedoms is of the greatest importance for the full realization of the pledge of Members of the United Nations to achieve the promotion of universal respect for and observance of human rights and fundamental freedoms (paragraphs 6 and 7). 

 

The Preamble also reflects its pre-1945 roots by pointing out that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. Against this background the Universal Declaration announces the advent of a world in which human beings shall enjoy freedom of speech belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people (paragraph 2). The latter provisions reflect explicitly the Four Freedoms Message to the US Congress by Franklin D. Roosevelt in January 1941.

 

These significant statements are further accompanied by a unique formulation that 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. It is not so much the functional link between rights and the rule of law that is innovative here, but rather the confirmation by the Declaration of the customary right of people to resist oppressive governance (paragraph 3).

 

Another important element of the Preamble is the recognition, in its final paragraph, of the rights and freedoms contained in the Declaration as a common standard of achievement for all peoples and nations. This common standard (in French, L’Oreal common) seems to presuppose both a common ideal and a normative reference system for the new international order.

 

The operative part of the Declaration can be divided into three groups of provisions. The first group (Article 1) contains an affirmation of the philosophical foundations of human rights by saying that [A] 11 human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Although the significance of this provision cannot be underestimated, it is not formulated in classic legal language. In spite of proposals to have it transferred to the Preamble, it was retained as the opening of the operative part of the Declaration.

 

The second group of provisions proclaims a number of general principles. One is the principle of equality and non-discrimination (Article 2), the principle that plays a fundamental role in the whole of human rights law. The second principle relates to the concept of the duties of States in the form of the right of everyone to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized (Article 28).

 

The third principle spells out a concept of the duties of everyone to the community (Article 29(1)) and permissible limitations in the exercise of the human rights and freedoms (Article 29(2)). And the fourth principle provides for the prohibition of activates by any State, group or person aimed at the destruction of the rights and freedoms set fourth in the Declaration (Article 30).

 

As far as substantive rights are concerned, the Declaration contains in Articles 3 to 27 the fundamental civil and political rights and freedoms, as well as economic, social and cultural rights. The catalogue of rights and freedoms of the first generation includes virtually all the fundamental civil and political rights and freedoms (Articles 3 to 21). Among these the following were included: the right to life, liberty and security, freedom from slavery and servitude, freedom from torture and inhuman treatment or punishment, the right to recognition as a person before the law; freedom from arbitrary arrest, detention or exile, the right to equal protection of the law, the right to an effective remedy; the right to a fair trial, the right to privacy, freedom of movement and residence, the right to nationality, freedom of thought, conscience and religion, freedom of opinion and expression, freedom of assembly and association, the right to property, the right to participate in the government of one’s country, and others.

 

Less extensive is the catalogue of economic, social and cultural rights (Articles 22 to 27). This contains the right to social security, the right to work, the right to rest and leisure, the right to an adequate standard of living, the right to education, and the right to participate in the cultural life.

 

This very modest list of socioeconomic rights was a consequence of strong controversies about their legal character. Nonetheless, the very incorporation of economic, social and cultural rights to the Universal Declaration has been a substantial innovation in modern international law of human rights.

 

All in all, the adoption and content of the Universal Declaration has been a great success. The Celebration constitutes the first internationally adopted catalogue, and in this sense, definition of human rights. From the perspective of the normative maturity of formulations of human rights, it may be submitted that the Universal Declaration is one of the best legal instruments on human rights ever adopted.

 

The reading of the following extract will be of a great help in understaning the legal and poitical status and significance of the UDHR.

 

The Universal Declaration of Human Rights was deliberately adopted under guise of a resolution of the

UN General Assembly and not that of an international treaty subject to a formal ratification procedure in Member States. There are, however, ongoing discussions among legal scholars as to whether the Declaration has, over the years, become a legally binding instrument. Proponents of the binding character of the Declaration argue for   its status as a customary law. Opponents of such a view submit that the establishment of a customary international legal rule requires the existence of general, uniform and consistent practice by States followed by the mergence of an opino iuris that is of a conviction or belief by States in the obligatory character of such a practice.

 

With these requires in mind it may be claimed that the practice of world-wide violations of human rights before and after 1948 fails to satisfy the condition on general, uniform and consistent practice by States. Some scholars submit that the binding customary nature of the Declaration stems from the absence of opposition to its principles by States as reflected in their constitutions and official government statements. There is some logic in this argument but for a formation of a custom the decisive factor is the actual practice and not lofty statements by governments, often colored with hypocrisy. Thus what matters is the deeds, and not the words of governments? It may cautiously be concluded that these endless disputes are, to a large extent, futile scholarly exercises since the Declaration itself has proved its fundamental importance without necessarily being recognized as a part of customary international law.

 

By the adoption of the Universal Declaration, Members of the United Nations have made a political commitment to implement the rights contained therein. The legal and political significance of the Universal Declaration may be illustrated by several development and tangible achievements. As a universally accepted normative reference system, the Declaration permeated domestic legal systems of numerous States by the incorporation of its provisions into national constitutions and other legislative instruments. In several newly independent States (e.g. In Africa), the Universal Declaration was included as a whole or in extensive parts in their constitutions. In the constituents of several new European democracies (e.g. Spain and Romania), there are explicit references to the Declaration as a reference system. It has similarly become a reference for domestic courts in developing their case law on human rights issues. No less significant is the resort to the content of the Declaration by non-governmental actors. The domestic impact of the Declaration has thus been much wider than might have been expected of a non –binding instrument.

 

On the international level, the Declaration has established the very first international catalogue of human rights as a common standard of achievement for all peoples and all nations. This model catalogue may thus be said to play also the role of the first definition of human rights, the definition which is missing from the UN Charter. The legal and political significance of such a function of the Declaration has further been strengthened by its adoption by the General Assembly of the United Nations. Consequently, the definition and catalog of human rights in the Declaration may safely be regarded as a quasi-authentic interpretation of the human rights provisions of the UN Charter. The universal message reflected in the Declaration is further strengthened by the fact that some of its provisions constitute general principles of law or represent elementary considerations of humanity.

 

Another important aspect in the adoption of the Universal Declaration has been the establishment of the basis for further international law-making in the field of human rights. This contribution has gone well beyond the program of the International Bill of Human Rights. In addition to the adoption of both the International Covenants on Human Rights in 1966, the Universal Declaration exerted a profound impact on the content and scope of other human rights instruments organizations. This impact may be identified not only in explicit references to the Declaration, contained usually in preambles, but above all in the very formulation of specific rights and freedoms. Altogether, the Universal Declaration opened the way for what may be regarded as the codification and progressive development of human rights in international law.

 

The significance of the Universal Declaration has not been confined solely to influencing international standard-setting in the field of human rights. It has also created opportunities for developing international procedures and mechanisms for the implementation of human right’s In the United Nations, the Declaration has become the main basis and references sources for establishing the communications and investigative procedures (e.g. under Resolutions 1235 and 1503 of the Economic and Social Council). As a resolution, and not a treaty, adopted by the General Assembly, the Declaration has become applicable to all the UN Members. If the text of the Declaration had been adopted as a treaty, its binding force and palpability would have become very much more limited.

 

Similarly, the significance of the implementation of the Declaration has been explicitly emphasized in the Preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms, whose signatory governments declared their resolve to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declarations. Another example of a direct reference to commitments contained in the Declaration may be found in the documents of the (former) Conferences on security and Cooperation in Europe (CSCE), most notably in the Final Act of Helsinki (1975) and other documents. Importantly, these provisions of the CSCE documents have not solely been escape clauses used to reach a compromise in diplomatic negotiations, but they have equally served as a means of establishing monitoring procedures for preventive diplomacy.

 

The Universal Declaration of Human Rights should, therefore, be seen above all as a document that has exerted a profound and comprehensive impact internationally and domestically in furthering the promotion and protection of human rights. Its inspirational role has not yet been exhausted.

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