The legal Ramifications of the Universal Declaration of Human Rights under the International Human Rights Regime. An Overview

Table of Contents

HISTORY OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

MEANING OF HUMAN RIGHTS

THE ROLE OF THE UNITED NATIONS IN ENFORCING HUMAN RIGHTS (UDHR)

THE ROLE OF THE SECURITY COUNCIL IN ENFORCING THE PROVISIONS OF UDHR

THE ROLE OF THE GENERAL ASSEMBLY IN ENFORCING PROVISIONS OF THE UDHR

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) AND THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)

WORLD HEALTH ORGANISATION AND THE UDHR

THE APPROACH OF MEMBER STATES TOWARDS UDHR; BINDING OR NOT BINDING

CONCLUSION

GLOSSARY

REFERENCES

HISTORY OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

Between April 1946 and December 1948, a group of men and women came together to work in the newly formed United Nations to draft a document which has today, become a major criterion in the global struggle for the protection of Human Rights. The committee held several meetings in New York, Geneva and Paris. The philosophy of law to be used, cultural differences and practical differences to be considered in the Universal Declaration of Human Rights and other matters were discussed in those meetings. They also argued on tactics and languages to be used and reached a compromise in pursuit of larger goals in those meetings. The United Nations adopted the work of the committee without dissent on December 10, 1948.¹

The Universal Declaration of Human Rights came into force on December 10, 1948. It was adopted by the United Nations to complement the UN Charter after the second world war. The document was borne out of the decision of world leaders to end war and never to allow the human race to be engulfed with atrocities of the second world war ever again. As a result, they came together to form what is now called the Universal Declaration of Human Rights which was a roadmap to guarantee the rights of all humans. This document was considered and brought before the first session of the United Nations General Assembly in 1946.²

The UDHR was a UN General Assembly Resolution which had 48 member states voting in favour, while 8 countries abstained from the vote on the day it came into effect.³

The General Assembly considered the draft human rights document and sent it to the ECOSOC to be sent to the Commission on Human Rights. It was to be considered for the International Bill of Rights. The commission authorized its members to formulate what it referred to as "a preliminary draft International Bill of Human Rights" on its first session in 1947. Sometime later, a formal drafting committee comprising members from eight States selected to represent all geographical locations to take over from the preliminary committee.

Eleanor Roosevelt, wife of former American President Franklin D. Roosevelt, was the chairperson of the UDHR drafting committee. Other members of the committee were, René Cassin of France, who composed the first draft of the Declaration, the Committee Rapporteur Charles Malik of Lebanon, Vice-Chairman Peng Chung Chang of China, and John Humphrey of Canada, Director of the United Nations’ Human Rights Division, were key in the preparation of the Declaration’s blueprint. However, Mrs. Roosevelt was recognized as the driving force for the Declaration’s adoption.

The introduction of the Universal Declaration on Human Rights brought the concept of human rights to International attention. The UDHR in itself is not a binding document as it is not a treaty.⁴ It is considered to be a soft law.

Notwithstanding this, many of UDHR’s provisions are generally considered in the International Community as a “Customary International Law”. To wit, all countries are bound to follow the articles set forth by the document. Customary International Law is a component of International law that evolves around established International practices and obligations rather than obligations arising from written conventions and treaties.⁵ Examples of such practices that are not necessarily backed by treaties or conventions are the granting of immunity to visiting heads of state.⁶

Even though UDHR is not a binding document, it possesses moral and political influence over the member states. The UDHR falls into the class of legal instruments referred to as ‘soft laws’. They are ‘laws’ because they contain regulations and rules, but they are ‘soft’ because they are not enforceable against signatories. It is generally believed that most ‘soft law’ emerging from the General Assembly has a tendency to mature into “hard” legal obligations in the future, given the huge number of States that usually accept them and the pervasiveness of State practice in that respect.⁷

Justice Lauterpatch believes that, even though the UDHR is not a binding document with legal obligations, it is of a legal value, as it contains authoritative interpretation of human rights and international freedoms which do constitute an obligation however imperfect, binding upon members of the United Nations.⁸

On the other hand, under International law, the provisions of a legally binding covenant are supposed to be adhered to by the countries that ratify them. Some of these treaties are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.⁹

Since the Universal Declaration of Human Rights (UDHR) was introduced in 1948, human rights have transformed from a system that applied to States and only imposed on them the obligation to protect the civil liberties of their citizens to one that now empowers individuals, in their capacity as human beings, to bring claims against States.¹⁰

MEANING OF HUMAN RIGHTS

Human rights are the basic rights a person is entitled to simply because he or she is a human being. They can also be referred to as those basic standards without which people cannot live in dignity. All persons are entitled to human rights regardless of their nationality, race, colour, religion, ethnicity or language.¹¹

Human rights must be extended to all persons regardless of their status in life, either being criminals, terrorists or refugees.

Human rights are universal and inalienable, indivisible, interdependent and interrelated thus, cannot be forfeited or denounced. It is said to be universal and inalienable in the sense that, all persons regardless of where they find themselves are entitled to enjoy their human rights. The Universality of human rights can be seen in Article 1 of the UDHR; “All human beings are born free and equal in dignity and rights.”¹²

Invisibility is a major characteristic of International human rights. To wit, cultural, political, religious and civil rights are inherent to the dignity of all persons. To that extent, one characteristic cannot be placed above the other. One right can also not be granted at the detriment of another. For example, a person’s right to vote cannot be deprived as a result of being granted the right to live.¹³

All human rights are interdependent and interrelated in the sense that, the success of one depends on the fulfilment of the other. Each one contributes to the realization of a person’s dignity.¹⁴

It is worth noting that, human rights extend to all manner of persons but not all persons benefit from them equally. International Human rights are often articulated and guaranteed by law in the form of treaties, customary International law, general principles and other sources of International law. International Human Rights Law lays down some obligations to be followed by governments. They include obligations to act in certain ways or to refrain from certain acts in order to protect and secure the fundamental freedoms of their citizens.¹⁵ In Ghana, human rights have been provided for by Chapter 5 of the constitution.¹⁶

The principle of universality is the foundation of human rights. This principle was first explained and given adequate attention to in the Universal Declaration of Human Rights, and has been reiterated in numerous international human rights conventions, declarations and resolutions.¹⁷ Most states have ratified at least one human rights treaty or law whilst 80% of states have ratified four or more of the core human right treaties.¹⁸ To me, this only demonstrates the willingness of states to give respect to Human rights.

THE ROLE OF THE UNITED NATIONS IN ENFORCING HUMAN RIGHTS (UDHR)

A huge chunk of the institutions, funds, projects and programs of the United Nations are geared towards the protection of human rights. Some organisation and agencies of the UN are also geared towards sensitization and campaigns against human rights abuses.¹⁹

The agencies of the United nations that pay particular attention to the protection of human rights include, but not limited to; The Office of the United Nations High Commissioner for Human Rights, The United Nations Development Programme, The United Nations Educational, Scientific and Cultural Organization, The United Nations International Children's Emergency Fund, The International Labour Organization and many others. The Commission on the Status of Women (CSW), is also an efficient commission under the UN (ECOSOC), which is devoted towards the promotion of gender equality and the development of women worldwide. The Commission on the Status of Women deals with complains regarding violations of human rights that affect the status of women in any country.²⁰

Aside these institutions mentioned, the Security Council is also responsible for passing several resolutions which are highly respected.

THE ROLE OF THE SECURITY COUNCIL IN ENFORCING THE PROVISIONS OF UDHR

The Security Council has been mandated by the UN charter to protect and maintain International peace and security²¹. Article 25 also mandates all member states to carry out the recommendations of the Security council.²² Pursuant to this provision, the Security Council has rolled out a number of resolutions against human right abuses which to a large extent has been respected by member states.

The UDHR frowns on torture, cruel and inhumane acts on any human.²³ It also frowns on all forms of slavery or servitude on persons.²⁴ The Security Council in 2016 issued a resolution condemning slavery and abduction of Muslim girls.

Unanimously adopting resolution 2331 (2016), the Security Council which is responsible for the maintenance of international peace and security, condemned the sale and trade of persons seized by Islamic State in Iraq and the Levant (ISIL/Da’esh), including Yazidis and persons belonging to religious and ethnic minorities. It also condemned trafficking of persons by Boko Haram, Al-Shabaab, the Lord’s Resistance Army (LRA) and other groups for purposes of sexual slavery, exploitation and forced labour. The Secretary -General at the time, Ban Ki Moon, emphasized the importance of fighting trafficking for the sake of the victims, and the importance of reducing funding for terrorists. He also entreated countries to investigate and prosecute cases in which their nationals committed such crimes abroad. “All perpetrators must be brought to justice” he indicated, stressing that only an international response could succeed in resolving an international problem like human trafficking.

Due to the fact that majority of trafficked victims were women and young girls, the response must include special attention to their rights, and States must adopt gender-sensitive and rights-based migration policies, he said.²⁵ His statement, I believe goes to buttress my point that, the Security Council protects human rights abuses which have been provided for by the UDHR.

The Security Council in January this year, imposed sanctions on 6 human traffickers.²⁶ The move by the Security Council only points to the fact that they are poised to enforce article 4 of the UDHR, which frowns on slavery and all forms of servitude.

THE ROLE OF THE GENERAL ASSEMBLY IN ENFORCING PROVISIONS OF THE UDHR

Chapter IV of the UN Charter provides for the UN General Assembly. It is one of the organs of the UN. It also has a role in the implementation of the recommendations of the of the Security Council. Over the years UN has ensured the enforcement of human rights through various means. It has also had the opportunity to make use of the UDHR even though it is not a binding document.

In the UN General assembly’s resolution in condemning the invasion of Kuwait by the Iraqi military, noted that it was being guided by the UN Charter, the Geneva Convention and the UDHR.²⁷

Recently, The UN General Assembly passed a resolution on torture and other inhumane treatments.²⁸ I believe this move demonstrates the role of UN in promoting or enforcing the provisions of the UDHR which is purely human rights based.

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) AND THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR)

ICCPR and ICESCR are protocols that were adopted in December 1966. Together with the UDHR, they are referred to as the International Bill of Rights. ICCPR focuses on provisions like the right to life, freedom of speech, religion and ability to vote. Article 26 of ICCPR establishes the Human Rights Committee of the United Nations. It is composed of eighteen human rights experts; the Committee is responsible for ensuring that each signatory to the ICCPR complies with its terms. The Committee examines reports submitted by countries every five years to ensure compliance with ICCPR provisions. They are also responsible for the issuance of findings based on countries performance.

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¹ Glen Johnson and Janusz Symonides, The Universal Declaration of Human Rights: A History of Its Creation and Implementation, (United Nations Educational, Scientific and Cultural Organization 1998)

² United Nations, History of the Document < http://www.un.org/en/sections/universal-declaration/history-document/index.html > accessed September 2018

³ United Nations Resolution 217A ii

⁴ Establishment and Protection of Human Rights, (Iowa United Nations Association) https://unaiowa.wordpress.com/climate-change/human-rights/udhr-a-brief-history-2/ accessed September 2018

⁵ Legal Information Institute, 2019

⁶ Ibid

⁷ Ademola Abass, Complete International law; text, cases and materials (2ND Edition, Oxford University Press, 2010)

⁸ Ademola (n7)

⁹ Ibid

¹⁰ Ibid

¹¹ Your human rights, (United Nations Human Rights Office of the High Commissioner, March 2019), <https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx> accessed March 2019

¹² Article 1, Universal Declaration of Human Rights, 1948

¹³ ‘Human Rights Principles’ (United Nations Population Fund, 2005) <https://www.unfpa.org/resources/human-rights-principles > accessed April 2020

¹⁴ Ibid

¹⁵ Ibid (n7)

¹⁶ The Constitution of the Republic of Ghana, 1992

¹⁷ Ibid (n11)

¹⁸ Ibid

¹⁹ UN agencies concerned with Human Rights, (Claiming Human Rights, June 2019) <http://www.claiminghumanrights.org/un_agencies.html> accessed June 2019

²⁰ Ibid

²¹ Article 23 of the UN Charter, 1945

²² UN Charter, 1945

²³ Article 5 of the UDHR 1948

²⁴ Article 4 of the UDHR 1948

²⁵ Ibid

²⁶ As Security Council imposes sanctions on six human traffickers in Libya, UN chief calls for more accountability (UN News Global Perspective Human Stories, June 8, 2018) <https://news.un.org/en/story/2018/06/1011751> accessed January 12, 2019

²⁷ United Nations General Assembly Resolution 45/170 (1990) The situation of human rights in occupied Kuwait

²⁸ Declaration on Torture and other cruel, inhuman or degrading treatment or punishment, UNGA Res 38/118 (16 December 1983) UN Doc A/RES/38/119