THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood – Article 1, Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is an important manifesto drafted in the twentieth century. It has been accepted as the world standard when it comes to the discourse of human rights. Although there have been many criticisms as to its relevance and effectivity, UDHR remains viable and widely accepted set of rules to prevent the recurrence of utter disregard for human rights. This essay posits that although the UDHR is not technically legally binding, many states have accepted its enunciated principles and treated the declaration as part of customary international law. Without the adoption of UDHR, chaos could have possible existed in the international law.

After World War II, the United Nations Educational, Social, Cultural Organization (UNESCO) created a committee which will spearhead to search for possible ground of potential agreement among diverse philosophical and cultural traditions.[1] The Committee was composed of scholars and philosophers from different countries. It was chaired by no other than the first lady of the United States of America, Eleonor Roosevelt. It was not an easy task given the differences of beliefs. Hence, to facilitate it effectively, they elicited the basic human rights practice of different countries and included the teachings of Aldous Huxley, Mahatma Gandhi, Pierre Teilhard de Chardin, and Benedetto Croce.[2] Also in order to gather wide information, all signatories were given the chance to be part of the committee. Thirteen seats were on a rotating basis so that all countries would be heard. Surprisingly, they found out that regardless of culture, people have the same regard to basic human rights. This led them to conclude that there are rights deemed to be implicit in the nature of man. This means that regardless of culture, belief, race, or gender, there are basic rights that human gives primacy when it comes to his hierarchy of rights. Hence, on December 10, 1948, the Universal Declaration of Human Rights was adopted without dissent.

Another leap in the declaration, compared to earlier traditions on human rights, was the acceptance of the perspective that the way states regard people under their own jurisdiction is no longer a domestic rather an international community concern.[3] Thus, the discourse on human rights is important today not only in national but also in global level.[4] It geared away from the traditional concept of sovereignty and acknowledged the principle that individuals could be international law subjects. This implies that individuals can now seek remedies and protection in the international community in case of abuses committed by their very own government.[5]

The early concerns regarding human rights violations, such as race, ethnic minorities, and sex have been attempted to be resolved. This was evident in the preamble of the charter which gives primacy now to worth and dignity of human being, regardless of sex, affiliation, religion or culture. The Preamble of the declaration captures this salient point: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. [6]

The United Declarations of Human Rights has been regarded as the most important significant reference when it comes to human dignity and freedom across the world. Since it has been practiced by many countries for almost seven decades, the UDHR can be considered as a customary international law. There are plausible reasons why UDHR should remain as a valid declaration. Perhaps, one of the most important provisions it contain is the grant of remedy to people who have been unlawfully detained. According to Farrell (2008), even though there was no explicit mention of the right to habeas corpus, the provision on Amparo (Article 8) implicitly bestowed this right. This is an important provision as it safeguards the liberty and freedom of individual against arbitrary detention.[7]

The UDHR is also important in the field of academe, especially to scholars. For instance in the realm of history, Baets (2009) enumerated five relevance of the UDHR in studying history. As UDHR was essentially adopted due to the mistakes of the past (i.e. world wars, genocide, atrocities), it mirrored historical events that shaped international relations. Most scholars agree that the atrocities committed during the time of Adolf Hitler led to this development. As the world condemned such massive killings by the Nazis, the main focus of the UDHR when it was adopted was to maintain international security and peace.[8] There are three important rights of history scholars that the declaration protects: the right to freedom of information and expression as enunciated in Article 19; education and culture teaching as provided in Article 26-27; and the right protecting the material and moral interests of scientific work researchers in Article 27.[9] Without these safeguards, historians and other scholars would find it difficult to promote their teachings and conduct further studies.

In the field of health, unlike the other non-binding provisions, many treaties were derived from UDHR and has now been considered legally binding. The declarations on science, medicare, and health in UDHR have evolved from declaratory recommendations into law in many countries.[10] UDHR was used as a framework to design policies which have binding effect to parties.

In spite of these important contributions, UDHR is far from being perfect. It draws a lot of criticisms ever since it was adopted. Perhaps the most common criticism it receives is the fact that UDHR is not legally binding contract. This implies that one cannot compel to follow strictly the principles set down by the declaration.  Take the case of the Philippines recently where international group of human rights advocate called the attention of their President for allegedly ordering the killing of over 7,000 suspected drug users and dealers in the country.[11] The police officers and other vigilant groups were tagged in these extrajudicial killings. In fact, even the Philippine President was vocal in admitting the order of the killings and justified this in the course of reforming their society. The utter disregard for human life and due process put the country in the spotlight. However, it remains unsolved because the international groups of human rights do not have power to meddle in their domestic affairs.

The above example proved that UDHR in reality had no obligatory force when it comes to the municipal level. It is always the domestic law that prevails over this international declaration. The reason is that UDHR is deemed to be a mere declaration and not a covenant. As opposed to declaration, when one nation commit itself to be bound in a particular covenant, it leaves no room about the legality of its provisions. Whereas, declaration is deemed to enunciate moral duties only.[12] Hence, in spite of its adoption since 1948, human rights violations still exist until today. Billions of people remains to live in dire poverty conditions, income inequality, deprivation, powerlessness, subordination, and violence.[13] The Declaration merely guides each government to promote, observe, or achieve certain objectives enunciated in its provisions.[14] It does not give an obligatory force such that non-observance of which would be tantamount to sanction.

Some critics also believed that human rights are relative. Thus, the attempt to universalize these rights tend to disregard the fact that not all states adhere to the same belief. This problem has actually been raised prior to the formation of the UDHR. In 2012 during the delivery of speech by the International Human Rights Commission President, Michael Higgins, acknowledged that historical differences and cultural diversity remains a challenge hitherto.[15] It is very difficult, if not impossible, to craft a policy which would prevail across all UN members.

This criticism holds no water. Proponents of relativism do not believe in the possibility of “universalizing” human rights. It seeks to acknowledge the differences and individualities. However, proponents of human rights believed that the very purpose of UDHR is to blur the line of individualism as it tends to promote isolation and selfishness.[16] Individualism proponents leans on asserting their individual differences rather than cooperate in communal life. The Charter is tailored to promote the participation of individuals, families, communities, and the state. It does not necessarily mean that it aims to eradicate differences, rather the declaration merely promotes the possibility of harmonizing individual differences with the value of communalism. Perhaps, what is contemplated “universal” in the UDHR is not the concept of human rights rather the universality in terms of participation and membership.[17] In drafting the declaration, the members tend to look for a common ground which would be the focus of human rights.

It should also be noted that the committee which spearheaded the UDHR was composed of countries who were only members of the United Nations. Further, five of the eighteen members were composed of the super powers – United States, China, United Kingdom, Soviet Union, and France. They occupied permanent positions in the committee. Four of these states came from the West. Hence, some critics believed that the concept of human rights is a Western concept and an alien concept especially to Asian countries.[18] In fact, the UDHR acknowledged cultural diversity and gives primacy to ethnic cultures. Article 27[19] gives certain leniency to ethnic minorities by their right to practice their own culture and belief.

To address this issue, Bernas looked at the common ground where Asian and Western collide. In his analysis, he concluded that although West and Asia differ in view, they have the same common denominator – they give high regard to individual protection and believe the importance of the role of international community to such protection. This led to the conclusion by the proponents of the declaration that “human rights are grounded in human nature and are entitlements of all persons who appeal to them when they experience the need for their protection”.[20]

Other critics also believed that the declaration is a product of cultural hegemony of the West.[21] Again, it was because not all states have been heard during the deliberation and formation stages of the declaration. However, Constantinides believed that this backdrop has already been remedied by the fact that most states, including African nation, have virtually adhered to UDHR.[22] If in fact the declaration was an alien concept to them, they could have just rejected it or at the very least made reservation.

And although the declaration has its own drawback such as this, one cannot ignore the fact that it has been used as an inspiration and model for practitioners and people.[23] Further, it remains a viable instrument crafting policies in the realm of international relations. For example, it has been used as a reference in order to make binding treaties. In fact, the International Covenant on Economic, Social, and Cultural Rights (ICESC) and the International Covenant on Civil and Political Rights (ICCPR) were derived from it. These covenants are important as it provides protection for political and civil rights.

UDHR also inspired other regional instruments that attempt to protect the human rights across the globe. All of these instruments reaffirmed UDHR’s precepts.[24] The first of these is the African Charter on Human and Peoples’ Rights (1981). This instrument is relevant as it aims to give a better life to African people and promote also international cooperation.[25] This is a major leap in the history of African people who have long been denied of their freedom during the early civilizations. They have been treated as belonging to the low class and traded like a piece of commodity. The Arab Charter on Human Rights (1994) was also a landmark instrument that reaffirmed the UDHR charter. The Cairo Declaration on Human Rights in Islam was adopted in 1990 by the state members of the Organization of the Islamic Conference to contribute to the growing assertion of human rights by mankind. This regional instrument was also aimed at protecting man from any persecution and exploitation. Lastly, it was designed to affirm the right and freedom of an to live a dignified life as accorded by the will of Allah.[26] Other important documents which were derived from UDHR are the American Convention of Human Rights ratified in 1969 and the Lawasia Statement of Basic Principles of Human Rights of 1980.

The decolonization of countries in Asia marked a turning point in the history of the realm of international relations. Like many other decolonized countries, the countries of Middle East emerged as new and trying to be independent countries from their colonizers. Even so, there also exists no conflict between the provisions of declaration and Islam belief. In a synthesis conducted by Ishak, he outlined several important provisions in UDHR which could also be found in their Shariah or the law of Allah. For example, Article 1 of UDHR provides for the right to have freedom and equality in dignity and rights. This provision resonates the teachings of Allah in Quran. [27]

In understanding human rights, one cannot disregard its causal connection with morality and ethics.[28] This is due to the reason that its adoption was primarily because of the attempt of state leaders not to commit again the blunder of history – blatant violation of human rights. Its purpose was to eradicate or at the very least limit any suffering brought by armed conflict. [29]Without the adoption of the declaration, war could have justified the disagreements and differences in policies of different countries. Human rights has been accepted as a “global responsibility”. From the beginning of the civilization, it was only in 1948 that the international community decided to formalize the need to acknowledge basic human rights inherent in every individual. Hence, UDHR should remain valid regardless of these lapses. The denial of human right results not only from one’s failure to imagine or understand but also the deliberate act of dispossessing.[30]

The possession of human rights enables each of us to achieve our full potential; it entails the enjoyment of full citizenship, full participation in society and full claims to a share of society’s resources. Denial of human rights involves dispossession at all these levels. It is because the struggle for human rights is never conclusively won that people everywhere need to be empowered to resist that dispossession.[31]

It is plausible that the UDHR Charter does not define what is the concept of human rights. This avoids the impression that the declaration indeed universalized “human rights”. Providing a definition would definitely set parameters and boundaries, which would endanger its effectivity when applied across culture. Although it cannot be denied that there are still gaps that should be addressed to make it effective, Higgins believed that “human rights discourse should not be devalued as rhetoric at an international political level”.[32] Principles should not yield to personal aspirations. There is a need to constantly discourse about human rights, because it is not fixed and frozen principles. It is always embedded in a particular historical and cultural circumstance.[33] They are susceptible to growth and transformation as the world changes. This suggests that the study of human rights should be constant.

References

1. Baets, A, ‘The Impact of the Universal Declaration of Human Rights on the Study of History’ (2009) 48 History and Theory.
2. Bernas, J, ‘Introduction to Public International Law’ (2009) Ateneo de Manila University.
3. Bos A, ‘1948-1998 : The Universal Declaration of Human Rights and the Statute of the International Criminal Court’ (1998) 22 Fordham International Law Journal 2.
4. Claude, R, and Issel, B, ‘Health, Medicine and Science in the Universal Declaration of Human Rights’ (1998) 3 The President and Fellows of Harvard College 2.
5. Constantinides, A, ‘Questioning the Relevance of the Universal Declarations of Human Rights’ University of Cyprus.
6. Farrell, B, ‘Does the Universal Declaration of Human Rights Implicitly Guarantee a Right to Habeas Corpus?’ (2008) 16 The Human Rights Brief 1.
7. Glendon, M, ‘Knowing the Universal Declaration of Human Rights’ (1998) 73 NDLR 5.
8. Higgins, M, ‘The Human Rights Discourse: Its Importance and Challenge’ (2012) IHRC.
9. Ishak, M, ‘Islam and the Declaration of Human Rights: Accord or Discord?’ (2014) 21 Middle East Journal of Scientific Research 9.
10. Johnson, G, and Symonides, J, ‘The Universal Declaration of Human Rights: A History of its Creation and Implementation’ (1998) UNESCO Publishing.
11. Penchota, V, ‘The Development of the Covenant on Civil and Political Rights’ (1981) The International Bill of Rights.
12. Ramcharan, B, ‘How Universal Are Human Rights’ (1998) IPG.
13. Spickard, J, ‘The Origins of the Universal Declarations of Human Rights’ (1999) Univesity of Redlands.
14. World Report 2016: Philippines (Human Rights Watch 2016) Retrieved on 03 April 2017 <https://www.hrw.org/world-report/2016/country-chapters/philippines>
15. Universal Declaration of Human Rights (1948).

[1] Mary Ann Glendon, Knowing the Universal Declaration of Human Rights (NDLR 1998) 1155.

[2] James Spickard, The Origins of the Universal Declaration of Human Rights (University of Redlands 1999) 2.

[3] Joaquin Bernas, Introduction to Public International Law, (ADMU 2009) 249.

[4] Michael Higgins, The Human Rights Discourse: Its Importance and Challenge (IHRC 2012) 2.

[5] Bernas, 249.

[6] Universal Declaration of Human Rights (1948).

[7] Brian Farrell, The Impact of the Universal Declaration of Human Rights on the Study of History (The Human Rights Brief 2008) 2.

[8] Glen Johnson and Janusz Symonides, The Universal Declaration of Human Rights: A History of its Creation and its Implementation (UNESCO 1998) 28.

[9] Antoon de Baets, The Impact of the Universal Declaration of Human Rights on the Study of History (History and Theory 2009) 23.

[10] Richard Claude and Bernardo Issel, Health, Medicine and Science in the Universal Declaration of Human Rights (The President and Fellows of Harvard College 1998) 139.

[11] World Report 2016: Philippines (Human Rights Watch 2016).

[12] Vratislav Penchota, The Development of the Covenant on Civil and Political Rights (The International Bill of Right 1981) 32.

[13] Aristoteles Constantinides, Questioning the Relevance of the Universal Declaration of Human Rights (University of Cyprus) 50.

[14] Claude and Issel 138.

[15] Higgins 3.

[16] Constantinides 56

[17] Constantinides 50.

[18] Bernas 248.

[19] Article 27 of UDHR (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

[20] Constantinides 52.

[21] Constantinides 52.

[22] Ibid.

[23] Ibid.

[24] Ramcharan, B, How Universal Are Human Rights (IPG 1998) 428.

[25] Glen Johnson and Janusz Symonides, The Universal Declaration of Human Rights: A History of its Creation and its Implementation (UNESCO 1998) 10.

[26] Ibid.

[27] Mohd Ishak, Islam and Universal Declaration of Human Rights: Accord or Discord? (Middle East Journal of Scientific Research 2014) 1645.

[28] Bernas 248.

[29] Adriaan Bos, 1948-1998 : The Universal Declaration of Human Rights and the Statute of the International Criminal Court (Fordham International Law Journal 1998) 229.

[30] Johnson and Synomides 10.

[31] Ibid.

[32] Ibid.

[33] Constantinides 55.