Universal Declaration of Human Rights
In this article, we shall discuss the Universal Declaration of Human Rights (UDHR) within the context of international relations and the human rights movement. We will discuss the origins of the Universal Declaration of Human Rights (UDHR) (and within this what actors (states and individuals) sparked the creation of the UDHR, the formation of the UDHR), we shall examine debates on the document, as well as its acceptance in the United Nations. Furthermore, we will also examine the evolution of the rights in the Universal Declaration of Human Rights, as well as the influence that the document has had on later human rights documents and legal systems. We shall also discuss criticisms of the UDHR, as well as ways to further improve the power of the document.
What Are the Challenges to Implementing the Universal Declaration of Human Rights?
The Universal Declaration of Human Rights (UDHR) is arguably the most influential document pertaining to human rights. The UDHR has set the foundation for the human rights movement, spawning various covenants and treaties, while pushing human rights to the forefront of international politics (Welch & Meltzer, 1984). Having said this, decades after the establishment of the Universal Declaration of Human Rights, we have seen a number of its principles challenged. One of the major challenges to the overall principles of the UDHR is its relation to state sovereignty. States have taken issue with a variety of Articles in the Universal Declaration of Human Rights that may hinder their sovereignty, including Article 30 that restricts states from acting against any of the Articles listed in the UDHR (UDHR, 1948, in UN, 2009). In fact, some of the abstentions during the vote of the UDHR came from states that worried about their state sovereignty in relation to human rights (DeLaet, 2006). Along with this, “Islamic” states also took issue with the UDHR’s stance on equal rights between men and women (DeLaet, 2006; Shah, 2006) as well as the UDHR’s Articles on minority rights. In fact, Muslim state leaders still criticize the UDHR and the human rights movement in terms of equal gender (An-Naim, 1984; Afkhami, 1997; Zuhur, 2003; Ghanea, 2004; Kamlian, 2005; Delaet, 2006) and religious freedom and religious minority rights (An-Naim, 1984; Bielefeldt, 1995; Donnelly, 2007; Moussalli, 2001; Mayer, 2007).
Thus, along with state challenges of sovereignty—that seem to criticize not just the Universal Declaration of Human Rights, but also the human rights movement as a whole, major challenges to specific parts of the UDHR have also come from individuals within the human rights movement who take issue with the way the UDHR was established. Primarily, critics take exception with the Universal Declaration of Human Rights (UDHR) by questioning the universality of the document, suggesting instead that it is a “Western” document. They point out that the UDHR was written primarily by Westerners, with non-Westerners such as Lebanon’s Charles Malik and China’s Peng-chun Chang also coming from a “Western” perspective since they were educated at Western institutions (Mutua, 2004), even though others point out that Chang was familiar with Confucian thought (Welch, 2002, in reviewing Glendon, 2002; Morsink, 2002). Critics such as Mutua (2004) argue that the Universal Declaration of Human Rights (UDHR) did not have extensive input from African, Islamic, or Jewish thinkers. Furthermore, when the UDHR was voted on in the United Nations, there were a total of forty-six states who voted in favor of the agreement, with eight abstentions (Forsythe, 2006; Steiner, Alston, & Goodman, 2008) from states such as the USSR who felt that the goal of the UDHR was to advocate civil and political rights, and not social and economic rights (Mutua, 1996). The passage of the UDHR also took place when a number of now states were still under colonial rule, thus unable to voice their thoughts at the United Nations (Steiner, Alston, & Goodman, 2008; Mutua, 1996). Because of these factors, Mutua (in Steiner, Alston, & Goodman, 2008) has “described the Declaration as an arrogant attempt to universalize a particular set of ideas and to impose them upon three-quarters of the world’s population, most of whom were not represented at its creation” (140). Forsythe (2006) also explains that we saw little discussion about the UDHR in terms of whether the rights listed were “universal” in nature, since most of the states in favor of the UDHR did so because its “rights” were similar to their political objectives (39-40), namely the emphasis of civil and political rights of the individual, with little focus on socio-economic or communal rights.
Thus, critics argue that the foundation of the movement has a position that sees the individual as the center of the modern human rights movement, and is unwilling to allow other viewpoints into the discussion. They argue that this has led to the strong bias towards civil and political rights, at the expense of socio-economic rights. By emphasizing the former at the expense of the latter—which was originally done at a contentious political period of the Cold War, critics suggest that the UDHR, while priding itself on universality (under the frame of individualism), fails to have structures in place to deal with socio-economic rights. One can see the bias towards civil and political rights by merely looking at the language of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Social, Economic and Cultural Rights (ICESCR) covenants that arose from the Universal Declaration of Human Rights. For example, in the ICCPR, the language strongly stipulates that the state must protect the civil and political rights of the individual. This is not the case in the ICESR however, where the language suggests “unwillingness” by the state to state substantial means to ensure that socio-economic rights are also met by the state. The language in the ICESR allows states to “progressively” work towards these rights depending on their abilities, thus lacking an unconditional call for immediately realizing social and economic rights (Mutua, class notes). By focusing only on particular rights, the UDHR fails to take to allow other cultures and their contributions to enter into the human rights discourse. For example, the African Charter clearly establishes the importance of duties of the individual, towards parents, community, the environment, etc…, something lacking in the “Western” notion of rights. But because no African perspective was given in the original creation of the UDHR, these issues, along with issues of economic rights (DeLaet, 2006) are ignored. Thus, Mutua (1996) argues that the movement, in order to maintain credibility, must “re-formulize” the discourse, even though other scholars suggest that the relationship regarding Western states in constructing the UDHR is much more complicated, since we have evidence that non-Western states such as China (Waltz, 2001; 2002) and individuals such as Hernan Santa Cruz (Waltz, 2001; 2002; Welch, 2002) and Carlos Rumulo (Welch, 2002, reviewing Glendon, 2002; Morsink, 2002) had a large say in the drafting of the UDHR, while the U.S. (Evans, 1996, in Waltz, 2001; 2002) and Britain were at time cautious about human rights (Waltz, 2002).
The UDHR, Socio-Economic Rights, and Group Rights
Thus, while many take issue with the various majority principles of individual rights in the Universal Declaration of Human Rights (UDHR)—at the expense of group rights (Steiner, Alston, & Goodman, 2008), scholars specifically take issue with Articles of the UDHR that illustrate its bias towards civil and political rights—at the expense of social and economic rights. For example, article 17 of the Universal Declaration of Human Rights states that “[e]veryone has a right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property” (UDHR, 1948, in UN, 2009). Scholars have called into question Article 17, wondering whether gaining property is a necessary human right, since it does not seem to be necessary for the human being in and of her/himself, but rather a possession (Mutua, class notes). Some question whether guaranteeing the right to property was a way to further divide a society, since only a minority of “wealthy” within that society that have the means to own property (Mutua, class notes). In fact, the ICCPR did not make any mention of property as a human right (Steiner, Alston, & Goodman, 2008).
But while many criticize the UDHR for focusing too much on civil and political rights—at the expense of social and political and group rights, we also saw that when the UDHR was written, many from the “West” also took issue with the UDHR, but for the opposite reason, arguing instead that the social-economic rights in the UDHR are not actually rights, and should not take precedent or even be equated with civil and political rights (Donnelly, 2007). Such a distinction arose from the political climate of the Cold War, where the “West purported to champion civil and political rights, whereas the Soviet bloc posed as the sole guarantors of economic, social, and cultural rights” (Mutua, 2004; 53-54) (even though we see Roosevelt highlight the goal to ensure that individuals have “freedom from want” ) (Steiner, Alston, & Goodman, 2008: 270). Thus, Articles 22-28 of the Universal Declaration of Human Rights that focus on social and economic rights such as the right to food, shelter, medical care, and education” (UDHR, in UN, 2009) have been criticized by those who argue for civil and political rights, suggesting that such Articles endorse ideas that are seen “at best less important than civil and political rights, such as due process, freedom of speech, and the right to vote, and probably not human rights at all” (in Donnelly, 2007: 25). Advocates of this position saw social and economic rights as getting in the way of ensuring civil and political rights (Steiner, Alston, & Goodman, 2008). Many in line with this thinking also suggest that such articles are “positive rights” in the sense of needing an individual or state do something to secure the rights, while “negative” civil and political rights can be reached without much effort, thus suggesting they are more achievable (Donnelly, 2007), even though in actuality both sets of rights cannot be separated (DeLaet, 2006).
In terms of the legal implications of the UDHR, since the UDHR is a declaration, the document itself is “recommendatory” (Steiner, Alston, & Goodman, 2008: 152) or “nonbinding” (Delaet, 2006: 30). This is quite different than a treaty, which in international law is binding, although states must agree to sign and ratify without being threatened or coerced (Steiner, Alston, & Goodman, 2008). Donnelly (2007) explains that “[t]he main two sources of international law are treaties and custom…Treaties are essentially contractual agreements of states to accept certain specified obligations…[while] [c]ustomary rules of international law are well-established state practices to which a sense of obligation has come to be attached” (9) for which a state believes that it has a responsibility to hold to that law (Dimitrijevic, 2006). Scholars explain that some argue that the UDHR is “part of customary international law, or at least strong evidence of custom” (Donnelly, 2007: 9), or even “soft law” because of the numerous references to the UDHR (Steiner, Alston, & Goodman, 2008: 152). But even if this is the case, the writers of the UDHR did not intend for the UDHR itself to be binding, but that later treaties (such as the ICCPR and ICESCR) would fill this void (Donnelly, 2007).
Having said this, scholars explain that the two concepts of treaty and custom are “interrelated” as treaties and customary law can work off or from one another (Steiner, Alston, & Goodman, 2008: 74). In terms of the Universal Declaration of Human Rights (UDHR), “[m]any human rights scholars argue that the norms in the UDHR have attained the status of customary international law and, as such, are binding” (DeLaet, 2006: 30) (Lillich, 2006, in Claude & Weston, 2006) since we see the importance of the UDHR in a wide number of states’ constitutions and laws (Hannun, 1998). Malanczuk (1997) (in Steiner, Alston, & Goodman, 2008) argues that “[t]he main evidence of customary law is to be found in the actual practice of states” which can be found in a number of sources such as leadership comments, newspapers, court rulings, etc… Furthermore, even rare rulings against the law do not justify non-customary law (Malanczuk, 1997: 76). Therefore, one single state going against the law does not dismiss its legal obligation unless it has “consistently rejected the rule since the earliest days of the rule’s existence” (Malanczuk, 1997: 77).
The Universal Declaration of Human Rights and Customary Law
Thus, while it is still argued as to whether the Universal Declaration of Human Rights (UDHR) itself is actually customary law (Sieghart, 1983; Reisman, 1990; DeLaet, 2006; Dimitrijevic, 2006), at a minimum the Universal Declaration of Human Rights (UDHR) has allowed for the establishment of later treaties and covenants that once signed and ratified, bind states to adhere to the language in the treaties and or covenants (Delaet, 2006), and even more so, it could be argued that principles of the Universal Declaration of Human Rights (UDHR) that more clearly may have gained further weight in the international community towards becoming “customary law” are principles that have from them specific binding treaties to address or are highly referenced. The discussion of whether the Universal Declaration of Human Rights (UDHR) is customary law has strong implications for the impact it has on legal rulings since we have seen customary law related to Article 5 of the UDHR that prohibits torture to hold up in legal rulings such as Filartiga v. Pena-Irala where reference to customary laws against torture were referenced and used in the final ruling (Donnelly, 2007). We also see in Roper v. Simmons (2005) that international law based on UDHR principles of “the right to life” and “cruel, inhumane or degrading treatment or punishment” (UN, 2009), as well as the citing of Articles related to the issue of the death penalty (Steiner, Alston, & Goodman, 2008) to uphold the right of children who committed crimes to not be given the death penalty. In fact, parts of the UDHR such as its position on torture, “prolonged arbitrary detention,” genocide, murder, racism, and disappearances (Charlesworth & Chinkin, 1993 in Steiner, Alston, & Goodman, 2008: 170) and prohibition of slavery (Lillich, 2006, in Claude & Weston, 2006), have went from customary law that is “virtually universally acknowledged” (Hathaway, 2002: 1965) to just cogens, a non-derogable human rights under any circumstance whatsoever (Steiner, Alston, & Goodman, 2008). Again, this is a major development because when a rule becomes customary international law, then the implications for this impact all individuals and states who have not protested against this rule from the beginning is bound by it under international law.
Unfortunately, even if such parts of the Universal Declaration of Human Rights (UDHR) have been elevated to “customary law” status, a major problem within the human rights movement is the ability to strictly enforce and punish states who fail to adhere to such laws. But while customary international law fails to produce an organization or institution that has particular abilities to monitor observation of the said law, treaties have the ability to produce institutions to help put pressure on states to adhere to the expectations of the institutions, usually in the form of reporting progress related to the treaty (Steiner, Alston, & Goodman, 2008: 152). We also find arguments by Welch (2001) and others that suggests that the work by NGOs through “standard-setting” and advocacy (3), documenting human rights violations (Welch, 1995), as well as throughout transnational pressure has helped in putting pressure or a “spotlight” (Spar, 1998) through “shaming” (Keck & Sikkink, 1998) on states in order to uphold the principles of the Universal Declaration of Human Rights.