Human Rights Law Essay

8064926 Human Rights Law 2013/2014

HumanRights Law

EssayStudent ID Number; 8064926

Words: 2,424

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

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“Critically evaluate the importance of the Universal Declarationof Human Rights (UDHR) in protecting human rights.”

Introduction;

This essay aims to ascertain the UDHR’s importance in ensuring

human rights (HR) protection. The history that led to the

document’s adoption will be set out first. Next, developments

that have taken place in international HR law following its

inception will be discussed. 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

will be illustrated with two Articles from the Declaration,

and how these rights are being circumvented in contemporary

society. The essay will then promulgate some suggestions as to

how the status quo can be ameliorated. Ultimately, it will be

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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 1 World War II (1939-1945)2 24th October 19453 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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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 HR developments

post-dating it. Since its inception, many of the rights

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) 1197 H Hannum, 'The status of the Universal Declaration of Human Rights in National and International Law. ' [1996] GJICL , 287-3978 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

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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 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.

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 hastheright 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 withothers and in public or private, to manifest his religion or belief in teaching, practice,worship and observance.12 1. 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 tomarriage, during marriage and at its dissolution.2. Marriage shall be entered into only with the free and full consent of the intending Spouses.3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.13 Right to life14 Right to respect for private and family life15 Freedom of thought, conscience and religion16 Right to marry

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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 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

above. Thus, its cardinality as an instrument of HR

protection is evident here. Some pontificate that the

UDHR is akin to CIL. Thus, Hurst’s views19 delineated

17 'A United Nations Priority' (A United Nations Priority ) <http://www.un.org/rights/HRToday/declar.htm> accessed 27/10/1318 Note 1619 Note 5

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earlier mutatis mutandis are relevant here20. 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 constitution22.20 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 201321 1. Everyone has the right to education. Education shall be free, at leastin the elemen-tary and fundamental stages. Elementary education shall be compulsory. Technicaland professional education shall be made generally available and higher educationshall be equally accessible to all on the basis of merit. (UDHR)2. 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 shallpromote understanding, tolerance and friendship among all nations, racial or religiousgroups, and shall further the activities of the United Nations for the maintenance ofpeace. (UDHR)3. Parents have a prior right to choose the kind of education that shall begiven 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 )

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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.

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

<http://www.academia.edu/1270924/The_effectiveness_of_Article_26_of_the_UDHR_in_promoting_the_right_to_education_in_Malawi> accessed 30/10/1323 Note 17; Constitution of the Republic of Malawi, Chapter 3, p 2 of 3

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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 investigation. 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

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

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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

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 201326 Note 2427 Professor Mohamed Mohamus Afran and Abdikarim Hassan Gorod28 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

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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

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 their 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

30 S Samarrai & H Zaman, 'Abolishing School Fees in Malawi:' [2007] EE , 359-37531 K Inoue & M Oketch, 'Implementing Free Primary Education Policy in Malawiand Ghana: Equity and Efficiency Analysis' [2008] PJE , 41-7032 Note 1533 e.g. the right to education

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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 ameliorated.

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,

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

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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 meant to ensure human rights

activists were protected, the Somalia murders suggest

that protection is still lacking36.

35 Note 2536 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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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 US

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 barrier 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 directly effective EU laws, which

give citizens the opportunity to bring an action against

an individual or the State under EU law. In light of the

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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 each other in ensuring all States are

able to provide for the Declaration rights. For example,

financially affluent States like the USA could help

countries like Malawi by building more schools and

training for teachers to ensure they are sufficiently

competent to inculcate knowledge onto students, and more

hospitals, to provide medical care to allay the

prevalence of HIV 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

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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 to37.

Furthermore, it can be suggested that the UDHR is a guiding

force, in helping humanity “act towards one another in a

spirit of brotherhood”38 .

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

37 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 201338 The Universal Declaration of Human Rights (UDHR) 1948, Article 1

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the values humanity holds dear. Thus, the importance of the

UDHR is still unprecedented.

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

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the prerequisite steps to inch it closer towards a better

world for everyone.

Bibliography;

A) Electronic Sources:

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'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/Univers

al-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-

20


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.

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_Art

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icle_26_of_the_UDHR_in_promoting_the_right_to_education_i

n_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.asp

x?NewsID=11793&LangID=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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United for Human Rights, 'Human Rights Violations'

(United for Human Rights )

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

ons-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/interna

tional-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

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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

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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

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

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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

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Human Rights Law Essay

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