Analysis of the Universal Declaration of Human Rights (UDHR)

There is no single definition of human rights used universally. However, Haas suggests there is a general agreement that human rights define the idea that every human is able to appreciate a high quality of life, with the least restrictions possible.[1] In addition, humans should not face interference of perfectly legal behaviour, freedom to perform social, economic and cultural needs and finally, be treated equally in the eyes of the law[2]. With these definitions in mind, the aim of this essay is to analyse whether or not the Universal Declaration of Human Rights (UDHR)[3] does have any relevance in regard to regional human right treaties. It is fundamental to understand the components which may affect the continuing relevance of the UDHR and whether these components have an impact on regional human rights treaties.

Firstly, it is important to put the significant human rights abuses, as the quote suggests, within context. Human rights abuses are acts which goes against the rights outlined in the UDHR. There are many examples of human rights abuses, just by looking at significant events in history. One of the oldest human right abuses to date is war crimes, which are crimes committed during a period of armed conflict. This can be seen with Uganda. Opposition groups opposing the Ugandan Government- particularly the so-called Lord Resistance Army- committed war crimes violating individuals’ human rights. Ssenyonjo contends that these abuses include frequent attacks on civilians including acts of torture, sexual abuse and the recruitment of child soldiers.[4] These acts clearly violate a number of the articles in the UDHR, such articles which mention that no individual shall be ‘subjected to torture’[5]. Crimes against humanity, another abuse, are said to be the most severe crimes against human dignity and have the firmest relationship with human rights law.[6] Such abuses have led to the humiliation and degradation of individuals, by policy which is both condoned or proposed by government.[7] Abuses including ‘degrading treatment’[8] also clearly violate those rights outlined in the UCHR. Crimes against humanity can be seen with the atrocities committed in the Second World War by the Nazi Regime, with the events of the holocaust. On the face of it, crimes against humanity may seem similar to war crimes. However, Dungel raised the that the acts, such as acts of a regime performed against their own citizens could not fall under what is defined as war crimes.[9] Differently, abuses can also be carried out by non-state actors. Human trafficking is an example of this, with abuses normally being carried out by coordinated criminal groups. Human trafficking has become a human right abuse due to the exploitation involved in trafficking and the involuntary ways individuals are transported.[10] In fact, cases involving human trafficking seem to class the abuse as a ‘modern slavery’[11]. This once again is a violation of the UCHR, as it states that all forms of slavery are banned.[12] Abuses in terms of human trafficking also leads to the question of how effective international human rights law is on non-state actors, due to the fact that there is no legal obligation upon them, questioning their accountability.[13]

UDHR was developed due to significant human rights abuses as discussed above, to help reduce and stop such violations. In terms of its creation, the horrors of the Second World War were what was needed to create a movement in international law in relation to individual rights.[14] It was sought to create legal mechanisms for the protection of human rights. The UN Charter[15] showed this initiation, mentioning the concern for human rights in its preamble.[16] This movement led to the UN Commission developing the UDHR, affirmed in the UN General Assembly by 48 states. The UDHR along with two covenants, the International Covenant on Civil and Political Rights[17] and the international Covenant on Economic, Social and Cultural Rights[18]– making up the international Bill of Human Rights. This bill is the centre of the universal human rights. Any state in the world is allowed to become a member of the system.[19] It is important to note that since the UDHR is a declaration and has limited legal power on its application.[20] The fact that it is non-binding could be outweighed however by the fact it is part of the international Bill of Rights along with two binding treaties, suggesting it does have continuing relevance.

The idea of the UDHR’s universality raises an issue, questioning the continuing relevance of the UDHR. Firstly, a lack of universality with the UDHR can be seen with some objections made by certain counties, during the adoption of the UDHR. For instance, Saudi Arabia opposed the principles outlined on rights of marriage.[21] Clearly, the disagreement of countries like Saudi Arabia submits the question of if the UDHR is as universal as intended. Secondly, it needs to be considered that the United Nations has grown largely since the formation. At the times of the UDHR’s formation, there was only 56 states who created the declaration, now there is 193-member states. In geographical terms, both Asia and Africa with both underrepresented.[22] The lack of representation of these two continents poses problems for the UDHR. Supporting this argument, Bernstoff mentions how there is different approaches to the protection of human rights between the east and west. Evidence for this can be seen during the preparation of the Vienna World Conference on Human Rights in 1993, where the western persistence of individual rights was blatantly questioned by Asian governments.[23] Describing it as a ‘contentious cultural environment’[24], cultural differences between member states certainly allows the question of if it is possible for the UDHR to comfortably apply universally, with all agreeing to the declaration’s principles. Nonetheless, there is still an indication that the UDHR is widely accepted. The number of state members to the United Nations had grown double and still all had contributed to the UN Millennium Declaration[25], which spoke of the importance of the universality of the UDHR.[26] This reinforces that despite cultural differences, the importance of the UDHR applying universally to all can still be seen, suggesting that the declaration does have a continuing relevance.

Clearly, cultural differences can be augured to have an impact on the clear-cut universality the UDHR claims to have. With this is in mind, it is important to look at cultural relativism, supporters of which suggests that moral rights and rules depend on cultural context.[27] Different countries have different cultures and therefore will have different beliefs on what they feel is right and wrong. In fact, regionalists- who in turn support cultural relativism- believe that there should be the formation of specific systems, supporting African and Asian regionalism. This is opposite to the beliefs of universalists who believe human rights should apply globally.[28] Freeman suggests that the UDHR has a western tilt, accentuating rights over duties and individual rights over of collective rights on civil and political rights instead of economic, social and cultural rights.[29] Subedi additionally adds interpretations by Western writers further paints an image, that other parts of the world do not have any knowledge or practise human rights, which he argues to be a misunderstanding.[30] This analysis provokes the question of is it possible that the extensive generalisation of rights created by the UDHR- created on western ideals- can ever be applied genuinely and equally to all people of all cultures.[31] This is suggests that the UDHR may not has much relevance as it cannot be applied to everyone.

With this being said, the Vienna Declaration and Programme of Action[32] (created as a result Vienna World Conference on Human Rights in 1993) consolidates that even though the implication of cultural backgrounds should be kept in mind, states must disregard cultural systems in order to ‘promote and protect’[33] all human rights. Additionally, it must be said that cultural relativism and universalism are not concepts which are completely incompatible with each other. Universal rights like those outlined in the UDHR have extended enough to prevent the approval of certain acts, such as female genital mutilation and torture.[34] Cultural relativism is no longer used as a form of protection for regimes which are of dictatorial manners.[35] With this in mind, along with the idea that there is variation in human rights between cultures, it still can be suggested that the UDHR presents the most fundamental rights, applying to all. This does infact suggest that the declaration does have continuing relevance.

The UDHR continuing relevance can be seen with the fact that it has inspired regional human rights treaties, created by member states of the United Nations[36]. The Western world was particularly inspirited, leading to Europe and America having the most greatly developed judicial systems of protection in the world.[37]

The first regional treaty explored is the European Convention on Human rights (ECHR)[38]. Adopted by the Council of Europe 1950 and entered into force in 1953, it was the first ever treaty to be created in the human rights field.[39] It is one of many institutions making up European law on human rights. The creation of this treaty was a great significance as the outlined human rights in the convention are legally binding, suggesting UDHR, which it was inspired by, does have continuing relevancy through this binding treaty. However, the ECHR does have some differences from the UDHR. For example, the European Convention in the first instance did not have any rights which covered the protection of minorities and self-determination.[40] Differences aside however, there are some spark similarities between the UDHR and ECHR, which is no surprise considering both had the same historical motivations. The Second World War and the monstrosities it brought were the driving force for the creation of a treaty in Europe to prevent the horrendous human rights violations form occurring again.[41] Both documents bode similarity in terms of their substantive rights. Illustration of this point can be seen with ECHR which outlines an individual’s ‘right to life’[42], exactly the same to the UDHR which also states everyone has ‘right to life’[43].

From its roots, the ECHR has shown evidence of being effective. The ECHR originally created the European Court of Human Rights and the European Commission. The role of the Commission involved reviewing applications it had received and establish whether alleged victims, or states, had in fact suffered from a violation of the ECHR by reviewing their admissibility.[44] If admissible the case would progress further, with the European Court of Human Rights being one of these places it could progress to. Although there has since been so developments and changes to this system, De Shutter mentions how at the time the procedure was ‘revolutionary’[45], based off the idea that for the first-time inter-state applications were allowed to be made in regard to human rights.

The 11th Protocol brought about significant change to the judicial process’ in response to the ever more increasing application rates to the court.[46] This protocol brought about the removal of the Commission and the creation of a full-time court.[47] This made the system even more effective as it allowed the court to make its own decisions, increasing its independence on whether or not the convention had been violated. The 11th protocol also increased effectiveness of individual complaints. It was made easier for individuals to complain, with a mandatory and automatic procedure that all states have to follow, as stated under Article 34 of the ECHR. These modifications among other, it could be argued to instil the ongoing effectiveness of the ECHR as the most dominant human rights treaty.

The Second World War initiated a real movement in terms of the American human rights, in the same the way movement was initiated with the UN and Europe. In 1948 the Organisation of American States (OAS) was created, a body which shows clear similarities to the Council of European relation to its work and protection of human rights.[48] Among many of the treaties and documents on human rights which the OAS drafted, the American Declaration on Human Rights and Duties of Man[49] and the American Convention on Human Rights (ACHR)[50] where the documents of most significance. The American Declaration is similar to the UDHR in the fact that it is also non-binding. Differently, the Inter-American Court and Commission on human rights treat the American Declaration as authority when interpreting the OAS Charter[51], allowing the declaration to have binding effect.[52] This submits the idea that the American Declaration has more relevance  and effectiveness than that of the UDHR.

The role of the ADHR mirror that of the ECHR, with the mechanisms which the ADHR runs upon showing spark similarities to that of the EDHR before the implementation of the 11th protocol. The Inter-American Commission dealing with complaints and decide whether or not there has been a violation of the convention.[53].  Analysis of the ADHR’s contents shows overlap with that of the EDHR, such as the inclusion of the ‘right to life’[54] and ‘humane treatment’[55], supporting Cravens idea of commonality between the structure of the two.[56]  These similarities suggest the effectiveness of the ECHR can also be applied to the ADHR. Although there are some differences, arguably suggesting that the ADHR is more effective, due to its better implementation on economic rights than the ECHR. Economic rights are contained within the ACHR, as mentioned in its preamble and as enriched by the protocol.[57]

The African human rights system in many ways is arguably less developed and less effective than both the European and American systems.[58] De Shutter pointed out that the African Court of Human and People’s Rights still being in infancy compared to both the European Court of Human Rights and the Inter-American Court of Human Rights.[59] Motivated by the attempt to stop colonialism struggles and wanted to eliminate colonialism, this led to the formation of the Organisation of African Unity, now later known as the African Union (AU)[60]. The AU is now made of 53 African states. The African Charter on Human and Peoples Rights (AFCHPR)[61] is what is said the be the ‘principal instrument’[62] in regard to the development of African human rights. It was adopted in 1981 and came into force in 1986, after the OAU’s 18th conference. The AFCHPR consists of rights which appear different from those of the UDHR and the other regional treaties discussed, in the fact that the rights contained are more duty related.[63] The AFCHPR’s shows some effectiveness, in 1998 a protocol of the AFCHPR lead to the establishment of the African Court on Human and Peoples Rights. This clearly shows progress on the implementation of human rights within AU member states, increasing the effectiveness of the AFCHPR in terms of enforcing its outlined rights and allowing justice to be sought. On the other hand, limitations questioning the effectiveness of the African Charter can be pointed out in relation social, economic and cultural rights, with a limited amount of rights being contained within the Charter. The AFCHPR misses some of the most important socio-economic needs in Africa. This includes the needs of rural communities, such as having reachable water supplies.[64] In comparison to the other regional treaties, the AFCHPR is arguably less effective with not meeting the needs of its peoples, and still needing development from its infancy.

In conclusion, the UDHR does have continuing relevance. Despite problems raised in terms of its non-binding effect, universality and cultural relativism, it has had enough of an influence to inspire regional treaties. In particular it has inspired the ECHR and the European human right system in general, with the ADHR effectively mirroring a large proportion rights established in the ECHR. Questions of effectiveness however can still be raised with the AFCHPR and the African system as a whole. Still in early stages of development, there is no shying away from the fact that there are still many human rights violations occurring in Africa today. This allows the questioning of how effective AFCHPR and African human rights system is at seeking justice.

Bibliography 

• Bernstorff J V, ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law’, 2008, 19(5), European Journal of International Law, 903
• Craven M, ‘Legal Differentiation and the Concept of the Human Rights Treaty in international Law’, 2000, 11(3), European Journal of International Law, 489
• Freeman M, Human Rights: An interdisciplinary Approach (Polity Publishing, 2005)
• Haas M, International Human Rights: A Comprehensive Introduction (2nd edn, Rouledge, 2014)
• Moeckli D & Others (eds), International Human rights Law (Oxford University Press, 2010)
• Obokata T, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law’ 2005,17(2) International Journal of Refugee Law, 394
• Rehman J, International Human Rights Law (2nd edn, Pearson Education Limited, 2010)
• De Schutter O, International Human Rights Law (Cambridge University Press Textbooks, 2010)
• Ssenyonjo M, ‘Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court’, 2005, 10(3), Journal of Conflict and Security Law, 405
• Smith R K M, Text and Materials on International Human Rights (2nd edn, Routledge, 2010
• Steiner H & others, International Human Rights In Context: Law, Politics, morals (3rd edn, OUP, 2008)
• Subedi S P, ‘Are the Principles of Human Rights “Western Ideas? An Analysis of the Claim of the “Asian” Concept of Human Right from the Perspectives of Hinduism’, 1999, 30, California Western International Law Journal, 45
• Viljoen F, International Human Rights Law in Africa (OUP, 2007)

---

[1] M Haas, International Human Rights: A Comprehensive Introduction (2nd edn, Rouledge, 2014)2

[2] ibid

[3] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: http://www.un.org/en/universal-declaration-human-rights/

[4] M Ssenyonjo, ‘Accountability of Non-State Actors in Uganda for War Crimes and Human Rights Violations: Between Amnesty and the International Criminal Court’, 2005, 10(3), Journal of Conflict and Security Law, 405, 412

[5] Art.5. UDHR

[6] J Rehman, International Human Rights Law (2nd edn, Pearson Education Limited, 2010) 740

[7] J Rehman (n 1) 740

[8] Art.4 UDHR

[9] J Dungel, ‘defining Victims of Crimes against Humanity: Martić and the International Criminal Court’, 2009, 22(4), Leiden Journal of International Law, 727, 728

[10] T Obokata, ‘Smuggling of Human Beings from a Human Rights Perspective: Obligations of Non-State and State Actors under International Human Rights Law’ 2005,17(2) International Journal of Refugee Law, 394, 395

[11] R (on the application of ZV) v Secretary of State for the Home Department [2018] EWHC 2725 (QB) [20]

[12] Art. 4 UDHR

[13] Ibid 404

[14]D Moeckli, S Shah & S Sivakumaran (eds), International Human rights Law (Oxford University Press, 2010) 33

[15]United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: https://treaties.un.org/doc/publication/ctc/uncharter.pdf

[16] D Moeckli, S Shah & S Sivakumaran (n 2) 34

[17] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, available at:  https://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf

[18] UN General Asssembly, International Covenant on Economic, Social and Cultural Rights, 3 Januray 1976  https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf

[19] H Steiner, P Alston & R Goodman, International Human Rights In Context: Law, Politics, morals (3rd edn, OUP, 2008) 133

[20] R K M Smith, Text and Materials on International Human Rights (2nd edn, Routledge, 2010) 98

[21] M Haas (n 1) 92

[22] Ibid 36

[23]J V Bernstorff, ‘The Changing Fortunes of the Universal Declaration of Human Rights: Genesis and Symbolic Dimensions of the Turn to Rights in International Law’, 2008, 19(5), European Journal of International Law, 903, 918

[24]Ibid

[25] UN General Assembly, United Nations Millennium Declaration, Resolution Adopted by the Genereal Assembly, 18 September 2000: http://www.un.org/millennium/declaration/ares552e.pdf

[26]R K N Smith (n 3) 36

[27] H Steiner, P Alston & R Goodman (n 3) 517

[28] J Rehman, International Human Rights Law (2nd edn, Pearson Education Limited, 2010) 8

[29] M Freeman, Human Rights: An interdisciplinary Approach (Polity Publishing, 2005) 226

[30]  S P Subedi, ‘Are the Principles of Human Rights “Western Ideas? An Analysis of the Claim of the “Asian” Concept of Human Right from the Perspectives of Hinduism’, 1999, 30, California Western International Law Journal, 45, 49

[31] R K N Smith (n 3) 50

[32] UN General Assembly, Vienna Declaration and Programme of Action, 12 July 1993, A/CONF.157/23, available at: https://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf

[33] Para.5, Vienna Declaration 

[34]J Reman (n 4) 9

[35]Ibid

[36] R K N Smith (n 3) 37

[37] O De Schutter International Human Rights Law (Cambridge University Press Textbooks, 2010) 897

[38]Council of Europe, European Convention of Human Rights, 4 November 1950, available at: https://www.echr.coe.int/Documents/Convention_ENG.pdf

[39]H Steiner, P Alston & R Goodman (n 3) 993

[40] M Haas (n 1) 370

[41] J Reman (n 4) 184

[42] Art.2 ECHR

[43] Art.3 UDHR

[44] O De Schutter (n 5) 899

[45] ibid

[46] D Moeckli, S Shah & S Sivakumaran (n 2) 463

[47] J Rehman (n 4) 215

[48] Ibid 271

[49] Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties of Man, 2 May 1948:  https://www.oas.org/dil/access_to_information_human_right_American_Declaration_of_the_Rights_and_Duties_of_Man.pdf

[50] Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, available at: https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf

[51] Organization of American States (OAS), Charter of the Organisation of American States, 30 April 1948, available at: http://www.oas.org/en/sla/dil/docs/inter_american_treaties_A-41_charter_OAS.pdf

[52]J Rehman (n 4) 274

[53] D Moeckli, S Shah & S Sivakumaran (n 2) 468

[54] Art. 4 ADHR

[55] Art. 5 ADHR

[56] M Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in international Law’, 2000, 11(3), European Journal of International Law, 489, 500

[57]J Rehman (n 4) 279

[58] H Steiner, P Alston & R Goodman (n 3) 1062

[59] O De Schutter (n 5) 898

[60]Organization of African Unity (OAU), Constitutive Act of the African Union, 2018, available at: http://www1.uneca.org/Portals/ngm/Documents/Conventions%20and%20Resolutions/constitution.pdf

[61] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”) 27 June 1981, CAB/LEG/67/3 Rev. 5, 21.I.L.M. 58 (1982) http://www.achpr.org/files/instruments/achpr/banjul_charter.pdf

[62] F Viljoen, International Human Rights Law in Africa (OUP, 2007) 235

[63] H Steiner, P Alston & R Goodman (n 3) 1063

[64] F Viljoen (n 9) 238