8064926 Human Rights Law 2013/2014

Human Rights
Law Essay
Student ID Number; 8064926

Words: 2,448 (excluding footnotes and bibliography)

Citation Style utilized: OSCOLA (Oxford Standard for the Citation of Legal
Authorities)

“Critically evaluate the importance of the Universal Declaration of

Human Rights (UDHR) in protecting human rights.”

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8064926 Human Rights Law 2013/2014

Introduction;

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.

1
World War II (1939-1945)
2
24th October 1945
3
Eleanor Roosevelt of the USA, Rene Cassin of France, Charles Malik of Lebanon, Peng Chung Chang of China
and John Humphrey of Canada were among the members of that Committee.
4
Belorussian Soviet Socialist Rubublic (SSR), Czechoslovakia, Poland, Saudi Arabia, South Africa, The Soviet
Union, the Ukrainian SSR and Yugoslavia

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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

5
"John Paul II, Address to the U.N., October 2, 1979 and October 5, 1995". Vatican.va. Accessed 07/07/2012.
6
M Robinson, 'The Universal declaration of human rights: A living document' [1998] AJIA , 52(2) 119
7
H Hannum, 'The status of the Universal Declaration of Human Rights in National and International Law. '
[1996] GJICL , 287-397
8
United for Human Rights, 'A Brief History of Human Rights' (United for Human Rights )
<http://www.humanrights.com/what-are-human-rights/brief-history/the-united-nations.html> accessed 27
October 2013
9
Everyone has the right to life, liberty and security of person.
10
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the
right to the protection of the law against such interference or attacks.
11
Everyone has the right to freedom of thought, conscience and religion; this right includes
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.

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of 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 views20

12
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. (UDHR)
13
Right to life (ECHR)
14
Right to respect for private and family life (ECHR)
15
Freedom of thought, conscience and religion (ECHR)
16
Right to marry (ECHR)
17
'A United Nations Priority' (A United Nations Priority ) <http://www.un.org/rights/HRToday/declar.htm>
accessed 27/10/13
18
Note 17
19
George J. Andreopoulos, 'Universal Declaration of Human Rights (UDHR)' (Encyclopedia Britannica )
<http://www.britannica.com/EBchecked/topic/618067/Universal-Declaration-of-Human-Rights-UDHR>
accessed 27 October 2013
20
Note 7

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delineated earlier mutatis mutandis are relevant here. How this non-binding nature is a

weakness will be discussed shortly.

 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 UDHR21 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 for23.

21
Everyone has the right to education. Education shall be free, at least in the elemen-
tary 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)
22
Ngina Samantha Mphongo, 'The effectiveness of Article 26 of the UDHR in promoting the right to education
in Malawi' (Academia.edu )
<http://www.academia.edu/1270924/The_effectiveness_of_Article_26_of_the_UDHR_in_promoting_the_righ
t_to_education_in_Malawi> accessed 30/10/13; Constitution of the Republic of Malawi, Chapter 3, p 2 of 3
23
Note 19

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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

24
United for Human Rights, 'Human Rights Violations' (United for Human Rights )
<http://www.humanrights.com/what-are-human-rights/violations-of-human-rights/article-3.html> accessed
27 October 2013
25
UN Human Rights, 'Ethiopia: UN experts disturbed at persistent misuse of terrorism law to curb freedom of
expression' (United Nations Human Rights - The Office of the High Commissioner for Human Rights 2012)
<http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11793&LangID=E> accessed 15
November 2013
26
Note 25

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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

27
Professor Mohamed Mohamus Afran and Abdikarim Hassan Gorod
28
Horseed Media 2013, 'NUSOJ Condemns the Murder of a journalist and Human Rights Lawyers in
Mogadishu' (Horseed Media 2013) <http://horseedmedia.net/2013/04/15/nusoj-condemns-the-murder-of-a-
journalist-and-human-rights-lawyers-in-mogadishu/> accessed 30 October 2013
29
Note 7

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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.

30
S Samarrai & H Zaman, 'Abolishing School Fees in Malawi:' [2007] EE , 359-375
31
K Inoue & M Oketch, 'Implementing Free Primary Education Policy in Malawi and Ghana: Equity and
Efficiency Analysis' [2008] PJE , 41-70
32
Note 22
33
e.g. the right to education

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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.

34
Council of Europe, ‘IN OUR HANDS : The effectiveness of human rights protection 50 years after the
Universal Declaration’ Strasbourg, 2-4 September 1998, 4
35
Note 34
36
Human Rights First, 'Protecting Human Rights Defenders' (Human Rights First - American Ideals. Universal
Values. ) <http://www.humanrightsfirst.org/our-work/human-rights-defenders/protecting-human-rights-
defenders/> accessed 27/10/13

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8064926 Human Rights Law 2013/2014

 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.

37
United States
38
European Union

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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.

39
Wellington Community Justice Project | Human Rights Division , 'What is the Relevance of the Universal
Declaration of Human Rights today?' (Right On 2011)
<http://wcjphumanrightsblog.wordpress.com/2011/05/29/what-is-the-relevance-of-the-universal-declaration-
of-human-rights-today/> accessed 27 October 2013
40
The Universal Declaration of Human Rights (UDHR) 1948, Article 1

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Conclusion:

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.

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Bibliography;

A) Electronic Sources:

 'A United Nations Priority' (A United Nations Priority )

<http://www.un.org/rights/HRToday/declar.htm> accessed 27/10/13

 Equality and Human Rights Commission, 'The Universal Declaration of Human

Rights' (Equality and Human Rights Commission )

<http://www.equalityhumanrights.com/human-rights/what-are-human-rights/the-

universal-declaration-of-human-rights/> accessed 27 October 2013

 George J. Andreopoulos, 'Universal Declaration of Human Rights (UDHR)'

(Encyclopedia Britannica )

<http://www.britannica.com/EBchecked/topic/618067/Universal-Declaration-of-

Human-Rights-UDHR> accessed 27 October 2013

 'History of the Document' (The Universal Declaration of Human Rights )

<http://www.un.org/en/documents/udhr/history.shtml> accessed 27 October 2013

 Horseed Media 2013, 'NUSOJ Condemns the Murder of a journalist and Human

Rights Lawyers in Mogadishu' (Horseed Media 2013)

<http://horseedmedia.net/2013/04/15/nusoj-condemns-the-murder-of-a-journalist-and-

human-rights-lawyers-in-mogadishu/> accessed 30 October 2013

 Human Rights First, 'Protecting Human Rights Defenders' (Human Rights First -

American Ideals. Universal Values. ) <http://www.humanrightsfirst.org/our-

work/human-rights-defenders/protecting-human-rights-defenders/> accessed 27/10/13

 "John Paul II, Address to the U.N., October 2, 1979 and October 5, 1995". Vatican.va.
Accessed 07/07/2012.

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8064926 Human Rights Law 2013/2014

 Justin Beach, 'The Advantages of a Universal Declaration on Human Rights' (eHow )

<http://www.ehow.com/info_8518828_advantages-universal-declaration-human-

rights.html> accessed 27 October 2013

 Mary Ann Glendon and Elliott Abrams , 'Reflections on the UDHR' (First Things

1998) <http://www.firstthings.com/article/2008/11/002-reflections-on-the-udhr-14>

accessed 27 October 2013

 Ngina Samantha Mphongo, 'The effectiveness of Article 26 of the UDHR in

promoting the right to education in Malawi' (Academia.edu )

<http://www.academia.edu/1270924/The_effectiveness_of_Article_26_of_the_UDH

R_in_promoting_the_right_to_education_in_Malawi> accessed 30/10/13

 UN Human Rights, 'Ethiopia: UN experts disturbed at persistent misuse of terrorism

law to curb freedom of expression' (United Nations Human Rights - The Office of the

High Commissioner for Human Rights 2012)

<http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11793&L

angID=E> accessed 15 November 2013

 UNICEF, 'The UN Convention on the Rights of the Child' (UNICEF (United

Kingdom) ) <http://www.unicef.org.uk/UNICEFs-Work/Our-mission/UN-

Convention/> accessed 27 October 2013

 United for Human Rights, 'A Brief History of Human Rights' (United for Human

Rights ) <http://www.humanrights.com/what-are-human-rights/brief-history/the-

united-nations.html> accessed 27 October 2013

 United for Human Rights, 'Human Rights Violations (Article 19 - Freedom from

Expression)' (United for Human Rights ) <http://www.humanrights.com/what-are-

human-rights/violations-of-human-rights/expression.html> accessed 27 October 2013

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8064926 Human Rights Law 2013/2014

 United for Human Rights, 'Human Rights Violations' (United for Human Rights )

<http://www.humanrights.com/what-are-human-rights/violations-of-human-

rights/article-3.html> accessed 27 October 2013

 United for Human Rights, 'International Human Righls Law' (United for Human

Rights ) <http://www.humanrights.com/what-are-human-rights/international-human-

rights-law.html> accessed 29 October 2013

 Wellington Community Justice Project | Human Rights Division , 'What is the

Relevance of the Universal Declaration of Human Rights today?' (Right On 2011)

<http://wcjphumanrightsblog.wordpress.com/2011/05/29/what-is-the-relevance-of-

the-universal-declaration-of-human-rights-today/> accessed 27 October 2013

 WiseGeek, 'What is the Universal Declaration of Human Rights' (WiseGeek )

<http://www.wisegeek.org/what-is-the-universal-declaration-of-human-rights.htm>

accessed 29 October 2013

 'Worldwide influence of the Universal Declaration of Human Rights and the

International Bill of Rights' (World Influence of the UDHR )

<http://www.universalrights.net/main/world.htm> accessed 27 October 2013

B) Articles:

 H Hannum, 'The status of the Universal Declaration of Human Rights in National and

International Law. ' [1996] GJICL , 287-397

 K Inoue & M Oketch, 'Implementing Free Primary Education Policy in Malawi and

Ghana: Equity and Efficiency Analysis' [2008] PJE , 41-70

 M Robinson, 'The Universal declaration of human rights: A living document' [1998]

AJIA , 52(2) 117-120

 S Samarrai & H Zaman, 'Abolishing School Fees in Malawi:' [2007] EE , 359-375

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C) International Human Rights Documents:

 Convention on the Rights of the Child (CRC) 1989

 European Convention for the Protection of Human Rights and Fundamental Freedoms

(ECHR) 1950

 The International Covenant on Civil and Cultural Rights 1966 (ICCCR) 1966

 The International Covenant on Economic Social and Cultural Rights (ICESCR) 1966

 The Universal Declaration of Human Rights (UDHR) 1948

D) State Documents:

 Constitution of the Republic of Malawi

E) European Documents:

 Council of Europe, ‘IN OUR HANDS : The effectiveness of human rights protection

50 years after the Universal Declaration’ Strasbourg, 2-4 September 1998

16