Universal Declaration Of Human Rights

Introduction

To emphasize the importance of rights, adjectives like ‘natural’ ‘fundamental’ or ‘human’ have been used in the long history of their development. Twentieth century has been described as the century of human rights because the concept of human rights became increasingly important in liberal democratic as well as in the socialist and developing countries particularly after the Second World War. Today virtually all states officially subscribe to some doctrine of human rights. The Universal Declaration on Human Rights [UDHR] and the subsequent covenants on rights recognized that individuals have certain rights and obligations over and above those set down in their own judicial and administrative system. UDHR accepted the fact that there are clear occasions when an individual has a moral obligation beyond that of his obligation as a citizen of a state, thus opening up a gap between the rights and duties bestowed by citizenship and the creation in international law of a new form of liberties and obligations.

 

Historical Background: The Need For Human Rights

You have read in the Meaning Of Human Rights Article that the term human rights refer to the concept that every member of the human race has a set of basic claims simply by virtue of his humaneness. These are rights claimed in respect of all human beings as human beings. They are said to be universal rather than national and are different from the legal rights. They are claims held to belong to everyone regardless of any real provisions that may or may not exist for him in a particular state. They are based upon the simple fact that a human being should not be forbidden from certain things by any government. They inherent in human beings rather than in societies and states. They are called human rights because rights are no longer derived from the operations of natural reason but from what is called ‘human’. It is derived, for example from the fact that a person who is malnourished, tortured wrongly imprisoned, illiterate or lacking in regular paid holidays is not living in a manner appropriate to a human being. According to Macfarlane, human rights are those moral rights which belong to each man and woman solely by reasons of being a human being. These are possessed by the human being simply as human beings, irrespective of the fact that they belong to any state, society, race or religious faith.

 

• Human Rights And Natural Rights

The term human rights came into being in the 20th century. In earlier centuries, these rights were commonly spoken of as ‘natural rights’ or ‘rights of man’. The theory of natural rights emerged in the seventeenth century in the writings of Grotius, Hobbes, Locke etc. who attributed natural rights to the natural law which provided that ‘no one ought to harm, another in his life, health, liberty or possessions’. That law could therefore be said to give each person a natural right to life, liberty and property, though it also imposed upon each a natural duty to respect the lives, liberties and properties of others. The theory got its classical expression in the writings of John Locke in his book The Two treatises On Government. Locke termed the rights to life, liberty and estates as natural rights.

Similarly, the American Declaration of independence in 1776 enunciated as self evident truths that all men are created equal and they are endowed by their creator with certain inalienable rights that among them are life, liberty and the pursuit of happiness. Again the French Declaration of the Rights of Man and Citizens of France in 1789 made similar claims in relation to the natural imprescriptibly and inalienable rights that it enumerated. In short all these declarations emphasized upon the rights of man as man and not as a citizen of a state.

Seventeenth and eighteenth century’s declarations of natural rights were matched in the twentieth century by the declaration of human rights by the United Nations and the various other UN covenants and conventions that followed. The Human rights, thus, are the direct descendant of the theory of natural rights. The human rights introduced immediately after the second world war by the newly formed United Nations were a direct consequence of the revulsions against the genocidal policies followed by the Hitler regime. These revulsions led to put a number of German leaders on trial for an offence that had no place in any statute book but was created by the decision of the international court. The offence was called ‘Crime Against Humanity‘. The Nuremburg trials tribunal laid down for the first time in history that when international rules that protect basic humanitarian values are in conflict with the state laws, every individual must transgress the state law. The legal framework of Nuremburg trials challenged the principle of military discipline and subverted the national sovereignty. However, the contemporary international law endorsed the position taken by the tribunal and affirmed its rejection of the defense of obedience to superior order in matter of responsibility for crimes against peace and humanity. As a standard for the future, a special committee of the United Nations drafted a Declaration of Human rights in 1948 followed by the two covenants – one on Social and Economic Rights and the other on Civil and Political Rights which were recognized by the member states of the UN.

Thus having come through the harrowing experience of inter war totalitarianism and the horrors of the second world war, the post war international community set its human rights agenda through the Universal Declaration of Human Rights. Since then the record of state behavior became subject to scrutiny through the standard of UDHR.

 

Universal Declaration Of Human Rights

The comprehensive International Bill of Human Rights consists of three instruments – [1] The Universal Declaration of Human Rights [2] The International Covenant on Economic, Social and Cultural Rights, [3] The International Covenant on Civil and Political Rights and its Optional Protocol.

The Universal Declaration of Human Rights [UDHR] represents the first and the most important instance of formulation of international human rights standard. In fact, much of the international norm – setting activity of the United Nations flows from and relates to UDHR. It was adopted and proclaimed by the General Assembly of the United nations on 10 December 1948 as a common standard of achievements for all peoples and all nations, to that end that every individual and every organ of society, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international to secure their universal and effective recognition and observance.

 

• Objectives Of UDHR

The preamble of UDHR makes it clear that it was a simple testimony to the fact that it was the first normative response of the then international community to the terrible experiences it had during the 2nd World war. It noted that ‘disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind. It emphasized that ‘recognition of the inherent dignity and of equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. It also stressed that a common understanding of the human rights and freedoms enshrined in the UN charter is of greatest importance for the full realization of the pledge.

This was reflected in Article 1 which reads as ‘all human beings are born free and equal in dignity and rights’. They are endowed with reasons and conscience and should act towards one another by a spirit of brotherhood. It defined the basic assumption of the Declaration that [1] The right to liberty and equality is man’s birthright and cannot be alienated, and that [2] Because man is a rational and moral being he is different from other creatures on earth and therefore entitled to certain rights and freedoms which other creatures do not enjoy. Similarly, Article 2 set out the basic principle of equality and non discrimination as regards the enjoyment of human rights and fundamental freedoms and forbids distinction of any kind such as race, color, sex language, religion political and other opinion national or social origin, property birth and other status.

 

• Nature Of UDHR

The UDHR contains a long list of Human Rights that belong to all human beings. These in general are categorized as Civil and Political Rights and Economic, Social and Cultural Rights. Article 3 provides the right to life liberty and security of persons, as a right essential to the enjoyment of all other rights. This is expanded in Articles 4 to 21 in certain civil and political rights such as freedom from slavery and servitude, freedom from torture or cruel inhuman or degrading treatment or punishment, the right to recognition everywhere as a person and before the law, the right to an effective judicial remedy, freedom from arbitrary arrest detention or right to a fair trial and public hearing by an independent and impartial tribunal, the right to be presumed innocent until proved guilty, freedom from arbitrary interference with privacy, family, home or correspondence, freedom of movement and residence, the right of asylum, the right to nationality, the right to marry and to found a family, the right to property, freedom of thought, conscience and religion, freedom of opinion and expression, the right to peaceful assembly and association, the right to take part in the government of one’s country and to equal access to public service on one’s country.

Apart from the civil, and political rights, the next six Articles specify certain economic, social and cultural rights such as right to social security, the right to work, the right to equal pay for equal work, the right to rest and leisure, the right to a standard of living adequate for health and well being, the right to education and the right to participate in the cultural life of the community. These rights were considered as indispensable for human dignity and the free development of personality and indicated that they were to be realized through national effort and international cooperation.

 

• Importance Of UDHR

When the UN General Assembly adopted UDHR in 1948, it only intended the Declaration to be ‘a common standard of achievement for all peoples and all nations’. However, 60 years after the Declaration, one finds that it still stands as the single most important normative act ever adopted by the United Nations, for a number of reasons.

First, having come through the harrowing experiences of inter-war totalitarianism and the horrors of the Second World War, the post-war international community set its human rights agenda through the Declaration. Since then the record of state behavior became subjected to scrutiny through the standards set by UDHR.

Second, although the Declaration did not proclaim itself to be legally binding, it acquired such a character in two ways. It came to be regarded as an interpretation and elaboration of the UN Charter provisions on human rights. Its influence on the drafting and practice of state constitutions which came into existence after 1948, has been extremely impressive and far-reaching. The founding fathers of the Indian Constitution too were influenced by UDHR. Indian courts still use the Declaration to interpret and clarify the Fundamental Rights provisions of the Constitution.

Third, UDHR provided the normative basis for all future activities of the United Nations in the field of Human Rights. It led to the drafting of the two International Covenants on Human Rights in 1966 – both of which, along with UDHR, constitute the International Bill of Rights. The diverse provisions of UDHR inspired the eventual drafting and adoption of a large number of treaties and further declarations on specific aspects of human rights. In fact, almost all the United Nations’ human rights instruments that have emerged so far are in some way or the other based on UDHR.

Fourth, the Declaration also inspired efforts at the regional level for evolving human rights institutions. Its influence on the European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 and the institutions established under this treaty, such as the European Commission of Human Rights and the European Court of Human Rights, has been very significant. The Charter of the Organization of African Unity, 1963, also acknowledges its influences.

However, we cannot overlook the fact that UDHR reflects what was essentially a mid-century Western perception of human rights, a response to the inter-war and wartime European experiences. An international community dominated by the Western countries adopted it. The presence of the Third World countries of Asia, Africa and Latin America started being felt at the United Nations only from 1960s. Till then, their human rights problems did not receive as much serious attention at the United Nations as they deserved. This has led to a debate with regard to both the theories of Human Rights as well their universality.

 

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