By Skylar Cheng Geyu
Inside the Grand Palais de Chaillot in France among priceless artifacts, historical sculptures, museums, is the esplanade of human rights, where almost 70 years ago a milestone document in the history of human rights was produced by the third session of the United Nations General Assembly: the Universal Declaration of Human Rights (UDHR).
As we approach the seventh decade of the document’s birth we look back at the birth of this historic document and its effectiveness in ensuring “universal human rights”.
History of the UNDR
The General Assembly passed a resolution on December 10, 1948, affirming the UDHR which took over 2 years of drafting the Commission on Human Rights, established by the UN Economic and Social Council, conceived an International Bill of Rights in June 1946. The Commision was chaired by former First Lady Eleanor Roosevelt, and involved the input of all nations and finally put to vote.
The final paragraph of the preamble states the purpose of the declaration as being, “a common standard of achievement for all peoples and all nations …to promote respect for these rights and freedoms.”
The UDHR is not a treaty so it doesn’t have any binding legal obligations. Roosevelt described the Declaration as being a “statement of principles setting up a common standard of achievement for all peoples and all nations” and “not a treaty or international agreement”. However, the document is a paramount expression of the fundamental values which are meant to be shared by all members of the international community.
In the 70 years since its announcement, the document has profoundly influenced the development of international human rights law. It advanced regional frameworks, each binding to differing degrees, such as the European Convention of Human Rights (ECHR) and the African Charter on Human and Peoples’ Rights. Furthermore, the declaration has also been constantly invoked by countries. To some legal scholars, this perpetual reliance on the UDHR has been sufficient enough to promote it to the status of (legally) binding customary international law.
In 2004, however, the United States Supreme Court stated during the conclusion of Sosa v Alvarez-Machain, “the Declaration does not of its own force impose obligations as a matter of international law”. Thus, the UDHR still remains in that limbo that many non-binding international standards exist within.
Two crucial problems
Time and again one of the crucial problems of the UDHR has been its non-binding nature, as this drastically reduces accountability. Additionally, human rights enforcement today extends way beyond the UDHR. In fact, the nine “core” international human rights instruments designed to “monitor implementation of the treaty provisions by its States parties,” stand separate from the UDHR.
This shows that where the UDHR is non-binding state parties have often violated it. Even where treaties it has influenced are binding, crucial states, such as the US, consistently fail to ratify them, thus dodging obligations. While smaller, less powerful states are checked through political pressures, history has shown that countries such as the US, Russia and China often violate their legal obligations with few consequences.
Eric Posner writing for The Guardian points to how some of the largest democracies in the world, such as Brazil and India, have courts that “are slow and underfunded, so police, under pressure to combat crime, employ extrajudicial methods, such as torture, to extract confessions”, against their human rights obligations. He adds that at the same time, political authoritarianism has “gained ground in Russia, Turkey, Hungary and Venezuela”. Even the “traditional champions of human rights” such as Europe and the United States have started to “flounder,” in the wake of 9/11 and debt crises.
Secondly, another problem for the UDHR is the issue of cultural relativism, which refers to the concept whereby a person’s beliefs, values and practices need to be understood under the purview of his/her culture rather than the criteria of an overarching belief system. Due to the same, characterising human rights as “common” becomes problematic. Indeed, in many non-western states, the human rights framework has often been dismissed as ‘western propaganda’ meant to establish the ‘superiority of the west’ at the cost of local cultures and traditions.
With these factors in mind, it is very difficult to answer the question of whether the UDHR and related documents have been “successful”. While the current political atmosphere certainly presents a pessimistic stance especially with the Trump administration’s decision to reduce its commitments to international treaties, it is naive to dismiss the system as a complete failure. While imperfect, we would certainly be disadvantaged without the UDHR. As we approach the 70th anniversary of the implementation of the Declaration we must exercise great caution to preserve and build upon the system.
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