“Critically evaluate the importance of the Universal Declaration of Human Rights (UDHR) in protecting human rights.”
The crux of this essay is to critically evaluate the importance of the UDHR in ensuring human rights (HR) protection. The historical context that led to the document’s adoption will be discussed first. Next, developments that have taken place in international HR law following its inception will be elucidated. Some of the virtues of the UDHR will then be scrutinized in the context of HR protection. Attention will also be given to instances where the efficacy of the UDHR’s ability to protect HR has been undermined. These instances will be illustrated with two Articles from the Declaration, and how these rights are being circumvented in contemporary society. The essay will then promulgate suggestions as to how the status quo can be ameliorated. Ultimately, it will be submitted that despite persistent violations of HR by States, the UDHR is still sacrosanct and pertinent to HR protection.
Historical context of the UDHR:
Following WWII1, The United Nations (UN) came into existence2, mandated with the objective of preventing future cataclysms. Following the UN Charter, World leaders deliberated on a possible document that would complement the Charter and guarantee rights to individuals everywhere. The HR Commission was set up3, and eventually, on December 10th 1948, in Paris, the UDHR was adopted by the UN, with eight abstentions4.
What the UDHR has done to the status of rights:
The UDHR marked the first time that the rights of individuals were consolidated in one document. Pope John Paul II alluded to the UDHR as “one of the highest expressions of the human conscience of our time”5. Robinson advances that the UDHR “exerts a moral, political and legal influence far beyond the hopes of many of its drafters”6. Its birth disseminated a notion that HR apply to everyone, everywhere. The UDHR has been signed by copious States and according to Hurst, by virtue of its intercontinental approval; the UDHR has acquired the status of customary international law7 (CIL). This position is strong, but disintegrates when considering the HR abuses that have occurred, which will be examined shortly. Principally, the UDHR has brought rights to the fore and attributed them with the status and respect they deserve. It is indeed, as Eleanor Roosevelt put it, the “international Magna Carta for all mankind”8.
Subsequent Developments in International HR law following the UDHR:
The UDHR is perceived as the foundation for current HR developments. Since its inception, many of the rights enshrined within it have infiltrated the municipal laws of many States. The UDHR has also inspired a plethora of International Conventions. For instance, Articles 39, 1210, 1811 and 1612 UDHR are all reproduced in the European Convention for the Protection 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.
Human Rights and Fundamental Freedoms (ECHR) 1950 in Articles, 213, 814, 915 and 1216 respectively. Following the UDHR, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in 1966. These two instruments effectively made many of the provisions of the UDHR binding on States that ratified them.17 A myriad of HR Treaties reaffirm the rights promulgated by the UDHR. One is the Convention on the Rights of the Child (CRC) 1989, which serves to protect children, inter alia, from economic and social exploitation18.
Some of the Virtues of the UDHR:
The UDHR has a number of virtues. These are promulgated below;
The UDHR’ s non-binding nature can be a benefit and drawback. Due to its flexibility, the benefit stems from the room that has been made for new strategies to be developed to promote HR and further, it has served as a springboard for the development of many legislative initiatives in international HR law, many of which have been discussed above19. Thus, its cardinality as an instrument of HR protection is evident here. Some pontificate that the UDHR is akin to CIL. Thus, Hurst’s views Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (UDHR) Marriage shall be entered into only with the free and full consent of the intending Spouses. (UDHR) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
The UDHR has also, indirectly helped States in drafting their constitutions and forming their own HR policies. In Malawi, following the dictatorial reign of Kamuzu Banda, during which HR compliance was poor, a new democratic government was elected and a new constitution was instituted, which incorporated the obligations of the International and Regional Treaties it had ratified. Article 26 UDHR 21 for instance, has found its place in Chapter III of Malawi’s constitution22.
Furthermore, it can be submitted that the UDHR has extensive moral authority. It can be advocated that it promulgates general moral precepts, applicable to everyone, thereby universalizing the notion of a fundamental baseline of human welfare. In the 1960s and 70s for example, several organs of the UN utilized the UDHR’s provisions to condemn racial discrimination in South Africa during the Apartheid. By the UN organs alluding to the UDHR, as a predication for their claims illustrates its importance as a standard to judge whether HR are adequately catered for 23.
Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (UDHR) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (UDHR) Parents have a prior right to choose the kind of education that shall be given to their children. (UDHR) Ngina Samantha Mphongo, ‘The effectiveness of Article 26 of the UDHR in promoting the right to education in Malawi’ .
Shortcomings of the UDHR:
With the strengths of the UDHR set out, it is imperative to consider its weaknesses, which predominantly emanate from enforceability and compliance spheres. For some, the UDHR is still an unattainable fantasy, as violations exist internationally. With dissenters to the status quo often being reprimanded for their views, it is clear that compliance with the Declaration is lacking. Due to word circumscriptions, two Articles will be analysed to illustrate how they have been violated.
Article 3 (Right to life): This Article promises a right to life but in 2007, the Brazil police murdered at least 1,260 individuals, with the killings being labelled as “acts of resistance” and received little examination. Further, in Vietnam, authorities forced at least 75,000 drug addicts and sex workers in 71 overpopulated “rehab” camps, labelling the detainees as having a “high risk” of contracting HIV, but made no effort to provide treatment. Thus, the total disregard for Article 2 is evident. 24
Article 19 (Freedom of Expression): This article states that an individual is free to hold an opinion and to voice that opinion by whatever means possible, without interference. In one article, the UN expressed concern over the misuse of the Anti-terrorism laws to curb the freedom of expression25. According to reporter Frank La Rue26, he emphasized the cardinal role journalists play in promoting accountability of public officials by investigating and informing the public about HR violations. He further notes that they should not be castigated for doing their job. Further, in Somalia, two prominent HR defenders27 that advocated better protection of HR were murdered during a court procession28. These issues raise legitimate questions on whether the UDHR is really an important tool with which to protect rights or whether it is simply a morally stagnant document with no particular relevance in today’s world.
The UDHR being non-binding can also be seen as a weakness because countries are not compelled to domesticate these rights. No country or even the UN itself can hold any country to account for non-compliance as the ICJ is not imbued with sufficient legal competence to make States liable for violations of rights enshrined in the UDHR. This is a fundamental weakness that dilutes Hurst’s views about the UDHR having CIL status29.
Malawi and Article 26 UDHR:
Malawi has been one nation that has tried to comply with the obligations it has under international HR law. Regarding Article 26, the 1994 Malawian government sought to ensure that education was free and compulsory in the elementary stages, just as the Declaration envisaged, and it did this by introducing Free Primary Education (FPE) in the 1994/1995 academic year. By virtue of this right being a resource intensive right, the State has to provide resources to cater for that right, and this was financially taxing to Malawi.
The introduction of the FPE system, ab initio, faced stark economic challenges as a result of increased enrolment. The first was the cost of recruitment, training and remuneration of sufficient teachers to give every child the right to education. To meet this, the government had to quickly recruit approximately 18,000 unqualified teachers to meet the surge in enrolment.30 Teachers were given a rapid two-week training course in order to meet the demands of increased enrolment. The rapid swell of enrolment into primary schools led to a deficit of learning and teaching resources following the FPE system’s enactment31.
The second economic challenge was the lack of infrastructure such as the number of schools and classrooms. Many lessons, especially in junior schools, were conducted under trees or temporary structures. Teaching resources were very limited and insufficient to cater for the gargantuan numbers32.
It is cardinal to note that resource extensive rights33 impose an arduous financial burden on poorer nations to meet their HR obligations. Here, it is evident Malawi tried their best to satisfy that right, but financial constraints inhibited their efforts, and thus rendered this objective unattainable. The economic malnourishment of nations is an issue when it comes to implementing the rights enshrined in the UDHR. In Malawi, it can be further submitted that respect for the UDHR is evident, which further reinforces its importance as a means of HR protection.
What can be done about the UDHR’s shortcomings?
In light of where the UDHR falls short, solutions will be addressed as to how the status quo can be rectified.
Effective protection of HR is only feasible as long as States adhere to their HR obligations. This cannot be achieved without a genuine “HR culture” in society34.
Thus, the judiciary need to be able to protect HR and deliver redress for circumventions. For a HR culture to be conceived, the judiciary, the administration, Parliament and the media, have to coherently work together in promoting HR issues, so that general awareness is achieved and people are informed on what rights they possess.
As the legislature is responsible for ensuring that municipal law conforms to international HR standards, it is imperative that legislative checks are developed to ensure HR considerations are considered during the legislative process35.
HR defenders play a crucial role in combatting violations and holding government accountable for HR derogations. It is evident from the Somalia murders that such individuals need more protection. Too often, these individuals are susceptible to repression by their own government for exposing HR abuses. Even with the adoption of the Universal Declaration on Human Rights Defenders on December 9 1998, which was premised on the ambition of ensuring HR activists were protected, the Somalia murders suggest that protection is still lacking36.
Hence, the UDHR needs to be vested with sufficient legal power and enforcement mechanisms, coupled with legal ramifications for derogations made by States. To counter this argument, if enforceable sanctions were instituted, then it would essentially make the UN a “world policeman”, which may be contrary to the purpose that premises its existence today. In addition, as the UN is based in New York, it has to be questioned if according the UDHR with legal status would unwittingly make the US37 supreme over other States and if so, could the US then use that power to their own advantage by ignoring their own HR violations? Worries over States consequently losing their sovereignty is another barricade to the UDHR having legal status, as it would mean States are answerable to a higher authority. This is a legitimate concern that can be advanced.
But it must be said that today States are not entirely sovereign as for example, the UK’ s domestic laws are inextricably woven with the directly effective and directly applicable (e.g. Regulations, Directives) laws of the EU38, which give citizens the opportunity to bring an action against an individual or the State under EU law. In light of the inter-connected globalized world we live in, it can be advanced that absolute State Sovereignty is an illusion.
Lastly, it is cardinal that all nations amalgamate their efforts and assist one another in ensuring all States are able to provide for the Declaration rights. For example, financially affluent States like the US could help countries like Malawi in building more schools and providing training for teachers to ensure they are sufficiently competent to inculcate knowledge onto students, and more hospitals, for the provision of medical care to allay the prevalence of HIV/AIDS and other deleterious infirmities.
Hence the reason why the UDHR should become law as it would, give an incentive to highly affluent countries to help the less fortunate ones.
Why the UDHR is still relevant today:
Since the Declaration’s adoption, there has still been war, famine and dictatorships. Does this dynamic therefore undermine the importance of the UDHR in protecting HR and thus, point to its failure? It can be opined that this is not the case. By virtue of mankind’s flawed state and its proclivity to subscribe to evil, the UDHR’s importance is unequivocal. As man is fallible, it would be erroneous to blame the UDHR when rights are violated. Man’s greed for power, which has ushered in dictatorships, is one of the many examples where man, by choice, ignores the right course of conduct. The UDHR is still important in protecting HR because it serves as a standard that mankind can aspire to39. Furthermore, it can be suggested that the UDHR is a guiding force, in helping humanity “act towards one another in a spirit of brotherhood”40 .
Many cynics say that by virtue of the world’s corruption level, the UDHR is an unattainable dream. It is however, important to realize that as long as humanity is committed to make a change, things can happen. Correspondingly, it can be succumbed that the UDHR is important because it is an expression of what is right and good, serving as a reminder of the values humanity holds dear. Thus, the importance of the UDHR is still unprecedented.
To recapitulate, the UDHR has catalysed the development of a HR system that may have been once perceived as unattainable. But even with the implementation of such rights into municipal systems, the status quo and the ideals envisaged in the UDHR are far apart. To most, full realization of HR is impossible and that international laws merely serve as a restraint, insufficient to provide adequate HR protection, as evidenced by HR abuses perpetuated daily. With the current dire situation that plagues our world, the only way this will change is for individuals to examine themselves and to change their mind sets on what is important. No dream is unattainable and, with a simple change in human behaviour, mankind can take the prerequisite steps to inch it closer towards a better world for everyone.