The Universal Declaration of Human Rights - Essay Example

The Universal Declaration of Human Rights – A Utopian Impossibility? Introduction The Universal Declaration of Human Rights1 was hailed as a remarkable document which would reach beyond its pages to the farthest corners of the world and enshrine the rights that all man should possess as a statement of fact. It was inspired by World War Two, and its ideals rose from the ashes and the economic turmoil which the war had left in its wake. In just thirty articles, the rights of man were to be recognised and protected. But what does the UD really provide – actual rights, or rights to rights? Did it enshrine the natural law principles that pre-existed, and if so, why did they need to be recorded if they were universally agreed upon? Were its drafters a little naïve in their expectation that the rights of man could be captured and thus ensured so simply (Crombag 2000: Ch 30)? Exactly what are human rights, and how can they be enforced? The UD poses such questions, and many more. Indeed, the legal and judicial value of this document will be assessed, along with examples of its application and detailed analysis of its meaning and basis. Ultimately, it will be argued that there exist so many contradictions within the text and also in the outer ideals of human rights that its drafting represents nothing more than a utopian aspiration, and that fundamentally human rights cannot be guaranteed or ensured. At most, we can recognise which rights that man may possess in some, or most circumstances – yet the situation will always differ, and we can only hope to strike a balance between competing values. In short, all men cannot possess all human rights ultimately, and to the same degree, and the UD’s conception that this is possible renders it a mere aspiration with little legal basis. The Articles It is interesting to look closely at the specific articles of the UD and assess exactly which rights they recognise. When we speak of human rights, we think of the simple version of that which man is entitled to, such a as freedom of speech, right to trial, and so on. But there exist different types of rights, and these different types embodied in the UD are exactly which cause the contradictions contained within it. Indeed, if these contradictions can be located, then the very judicial and legal values it possesses, if any, are rendered less effective. It appears that the UD specifies three major forms of rights: rights of the citizen (artificial), natural rights (in respect of classical natural law rights), and societal rights (including economical rights). Let us observe the natural rights; labelled so for they provide rights that are often associated with the classical doctrine of man’s natural rights – the right to life and liberty (article 3), protection from torture (article 5), and right to privacy (article 12). Examples of citizen rights include equal protection of the law (article 7) and right to governmental participation (article 15). Note that these rights are not of man in general; they involve the prerequisite that the man seeking such rights be a member of society – a citizen. Finally, social rights encompass the right to employment (article 23), the right to a certain standard of living (article 25) and to free education (article 26). These also arguably require membership in a certain society and are more artificial than the natural rights. Actually, it has been suggested that such rights as this be not be classed as rights at all, but rather objectives to be taken into consideration (McGinnis & Somin 2009: 1746). But what is the purpose of separating the UD rights into these categories? By categorising the types of rights provided for in the UD, one can assess their value on both a legal and judicial level. For example, it could be suggested that those rights which fall under the natural rights category pose many problems when being protected in the courtroom. In many cases, the issue will not be about upholding and protecting one single right, it is likely to involve the balance of conflicting rights between two persons. In such cases, what are the courts to refer to when assessing how to balance the rights? How can it be said that one man’s right to privacy is more important than another’s right to liberty? What if the courts are faced with the intolerable problem of balancing two separate man’s right to life?2 It seems that the rights provided in the UD here are nothing more than a written list of rights that man should have, but which play no major role to the everyday application of life, especially when such rights require the protection of the courts. The age-old debate surrounding the existence or not of universal moral rules is far too complex to delve into here, but suffice it to say that the very existence of these debates is not eased by the UD, and the problem still remains as to how such rights are to be balanced, and to what extent they are to be regarded as universal. Indeed, it has been suggested that the UD in general is ‘too much imbued with Western ethical and political values to deserve the epithet “universal”’ (Van Dun 2001: 2). Application of the UD – Examples Indeed, the UD has been referred to and used as a basis of rights protection in legal proceedings in member states. This does go some way into enhancing its applicability in reality, rather than just viewing it as a theoretical document. This was the case in Filartiga v Pena Irala, in which the UD was referred to by the United States to punish an alien on the basis of article 5 – the right to protection from torture. This is seemingly a wonderful tale of justice, in which the fundamental rights of the UD broke borders and were applied on a global level. The US concluded that the right to protection from torture enabled it to punish an alien for tortuous acts committed in Paraguay. It was a landmark case, and provided a great basis for the potential successful application of the UD. However, it could be argued that the only manner in which the US was able to punish the alien was by way of its national legislation which allowed such court decisions (the Alien Tort Statute). So does the value and application of the UD depend upon member states’ responsibility to integrate it into their legal system? Assuming that the answer is affirmative, this is not a major problem, but it does cause problems in terms of application. What one state may decide to be A, another country may decide to be B – can the application of the UD really be consistent? Does it need to be? Indeed, a rather ironic look at the recent problems regarding detainee torture suffered at the hands of US soldiers somewhat undermines it upholding of the protection from torture in the Filartiga case. It is strongly suggestible that the application of the UD does need to be consistent; otherwise the basis upon which it is termed is rendered useless and even more unreachable. What is the point of a Universal Declaration if it is not to be applied as such? In many terms, the rights provided for in the UD are likely to be applied consistently as far as is necessary, but there are always difficult cases, and no two circumstances are the same. Perhaps the fact that circumstances are not likely to be the same means that the previous point has no basis in the first place. Yet it is one thing to notice the existence of a basic right, and another to make a decision based upon a violation of that right. In many cases, one right must be violated in order to protect another conflicting right. It is also one thing to state a list of human rights, and another to solve – or at least ease – the problem of injustice. Viewed as a whole, the UD appears to portray a magically utopian world in which every man has exactly the same level and number of rights – this is simply not possible in reality. But does the UD claim to achieve this? Not exactly. So then what is the point of it? Are there dangers in allowing claims to be made in any country on the basis that a right was infringed upon, or should we remain within our jurisdictional boundaries? Conclusion It seems that the value of the UD as a beautiful aspiration, or rather a ‘token gesture’ has profound value. Yet beyond this, it appears to only progress towards providing a basis for extreme - or odd – cases. The fact that its direct application has proven sparse over the years accentuates this suggestion. As a model for secondary human rights legislation, it is perfect, but as something more, it is too vague to be applied evenly on a global level. But this may not be such a terrible concept; almost all human rights legislation provides at least most, if not all, of the rights protected in the UD. Indeed, it is generally noticed that nations are urged to ‘rely on the authority of international human rights law to create domestic rules of decision’ (McGuiness 2006: 830). Such evidence of this in practice is the European Convention on Human Rights, which has even been applied in the UK through the Human Rights Act 1998. It appears that the UD functions well as a basis for developed states to conglomerate for the purpose of aiding less developed countries in need of assistance when the rights of a whole society are being violated (Namibia Case). The same applies in situations of emergency, as was the case when American nationals were being held hostage in Iran (though the effectiveness of the UD in this case is questionable) (USA v Iran). As a model, it works well, but as a single piece of legislation for direct application it is lacking in complexity. Perhaps a model is what was required, and perhaps such an embodiment of aspirations is not detrimental; it at least provides a framework for member states. Bibliography Publications Crombag, H.F.M. (2000) Sympathetiek, Maar Naief. in De Man van Susquehanna. Amsterdam: Contract. Diplomatic and Consular Staff. (1979) Request for The Indication of Provisional Measures of Protection Submitted by The Government of The United States of America. International Council on Human Rights Policy. (2009) Corruption and Human Rights: Making the Connection. Versoix: Switzerland. McGinis, J.O. & Somin, I. (2009) Democracy and International Human Rights Law. 84 Notre Dame Law Review. 4, 1739-1798. McGuinness, M.E. (2006) Norm Portals, and the Horizontal Integration of International Human Rights. 82 Notre Dame Law Review. 755. Morsink, J. (1999) The Universal Declaration of Human Rights: Origins, Drafting and Intent. Philadelphia: University of Pennsylvania Press. Smith, Rhona K.M. (2007) Textbook on International Human Rights. New York: Oxford University Press. Van Dun, Frank. 2001. Human Dignity: Reason or Desire? Journal of Libertarian Studies. Vol. 15 No. 4. Ludwig von Mises Institute. 1-28. Cases Filartiga v.Pena-Irala 630 F.2-nd 876(1980) U.S. Court of Appeals, Second Circuit. International Legal Materials, Vol. 19 noted in American Journal of International Law, Vol. 75. Namibia Case (Legal Consequences for States of the Continued presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) Advisory Opinion) 1971 ICJ Reps 16 Re A (Conjoined Twins) [2000] 4 All ER 961, [2001] 1 FLR 1 CA USA v Iran United States Diplomatic and Consular Staff in Tehran (United States of America v.Iran ) Alien Tort Statute, 28 U.S.C. s 1350. Read More