The Universal Declaration of Human Rights as a Hard Law Instrument

The Universal Declaration of Human Rights is the first global human rights treaty that was formulated. The main driving force behind the formation of the Universal Declaration of Human Rights was the Second World War, which in it course saw some of the worst human atrocities being committed on a global scale. The Declaration was adopted by the United Nations General Assembly on the 10th of December 1948.

The term "soft law" refers to legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law. These are generally, instruments that are not treaties that oblige the stakeholders to follow them, but they have within them ‘norms’ that are believed to b good and therefore need universal application.

The Universal Declaration of Human Rights is also officially termed as a soft law since it was passed by the UN General Assembly as a Declaration and within itself has not given any means where the stakeholders are legally bound to abide by the articles or to enforce them. The preamble of the declaration says that the UDHR is “a common standard of achievement for all peoples and all nations” and the nations must themselves strive to achieve this standard.

While not a treaty itself, the Declaration was openly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter. For this reason, the Universal Declaration can be termed as a fundamental constitutive document of the United Nations. Since the UN charter is binding on all member states (according to Section 1, Article 4 in Chapter 2 of the UN charter), most people argue that the Universal Declaration of Human Rights although a soft law, by proxy has a legal binding effect on the nations.

Historically, there are two main sources of international law: treaties and customary law. There have been arguments that soft law has become a third source of international law that has rapidly developed in recent decades, especially to deal with sensitive matters such as human rights and the protection of the environment. It is believed that soft law avoids the immediate and rigid commitments made under treaties and at the same time it is also considered to be a potentially faster route to legal commitments than the slow pace of customary international law.

It has been argued that the Declaration has already formed parts of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. This can be also seen in when the 1968 United Nations International Conference on Human Rights advised that the Universal Declaration of Human Rights “constitutes an obligation for the members of the international community" to all persons.

The Universal Declaration of Human Rights has served as the foundation for two binding UN human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The two covenants along with the UDHR form the International Bill of Human Rights. The ICCPR and the ICESCR are two legally binding documents that have been signed and ratified by most of the countries in the world. These two covenants in themselves enforce most of the human rights given in the UDHR.

In addition the principles of the Declaration are elaborated in international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of Discrimination Against Women (CEDAW), the United Nations Convention on the Rights of the Child, the United Nations Convention Against Torture and many more. All these conventions are also legally binding on the member parties and the vast number of covenants has essentially covered all the aspects of the UDHR, thus making the principles given in the UDHR enforced as law by proxy.

The Universal Declaration of Human Rights has been the source upon which the ICCPR and the ICESCR and all other conventions have been built. Although the UDHR in itself does not provide a legal framework for the application of the fundamental rights given in it, these covenants and conventions that were brought about after have provided the necessary provisions for their enforcement.

While treaties are actually binding (after ratification by states), soft law instruments are only potentially binding. Soft law is indeed conceived as the beginning of a gradual process in which further steps are needed to make of such agreements binding rules for states. In the inception, with the UDHR being presented as a soft law instrument, and gradually the necessary accords were brought about to make it possible that the Universal Human Rights are enforced with a legal background.

Although soft law creates moral or political commitment for states, and in a more indirect and persuasive way, soft law instruments have an influence on states, which is not very different from that of treaties. The acceptance of the UDHR in 1948 had a very wide global effect from that time onward. They were seen by the world as the basic rights that every man is entitled to and the principles were thus included in constitutions of many countries thereafter. This provided the legal footing the UDHR required at national levels, and in the current context, essentially every constitution in the world has amalgamated them in to their own legal system. This in effect has turned the UDHR principles in to hard-law at national levels.

The UDHR has been now universally accepted, and so the world naturally expects all nations and all people to follow the principles in the declaration to be followed. In the modern era of communication and media, most people are informed of the principles in the UDHR. This has raised the public’s attention towards the protection and enforcement of the human rights and this has compelled the governments to treat the UDHR as a hard law instrument or even more. In reality, the Universal Declaration of Human Rights is one of the most widely recognised declarations in the world, and public attitude and the expectation have driven the impact of the UDHR even beyond the levels of a hard-law instrument.

The effect of the UDHR has been unmistakable since it adoption, from the freedom struggles in South Africa (which incidentally abstained from voting for the UNHDR in 1948), to worldwide governance of humanitarian situations; the UNHDR has been the focal point in all matters of human rights issues. The UNHDR has been used as a guideline for many international monitoring activities and prominent figures from the Secretary General of the UN to political leaders of governments still make reference to it in matter of international dealings.

The UNHDR is also widely used by the International Court of Justice and National Courts as either a tool of interpretation or as international standards. This widespread usage has given rise to the argument that the UNHDR has in fact reached the level of International Customs and can be taken as customary law.

There has been some resistance to the acceptance of the UNHDR as a customary law, and it has been mainly due to the fact that there are disagreements on the substance and procedures relating to the rights and duties in it. An example is where some Islamic countries objected to the fact where the UNHDR didn’t take in to consideration the culture and practices of Islam and they preferred to sign and ratify the Cairo Declaration of Human Rights in Islam in 1990 (45 countries of the Organisation of Islamic Conference are parties to this, but it does not give freedom of religion or equal rights to women.).

But the overall consensus is undoubtedly one of acceptance and recognition of the UNHDR as the baseline for any national or international matter of human rights interest, and the UNHDR has in reality, made it impossible for governments to hide behind their national policies if they make any violation of the guidelines set out in it.

It is now closing in on 62 years since the adoption of the Universal Declaration of Human Rights, and by now it has been accepted as the international standard for all human beings. This widespread acceptance in the contemporary context has essentially given the UDHR, (which was initially brought about as a soft-law instrument) more weight and headway than a hard-law instrument itself.

Reference

  • Alfredsson, Gudmundur and Eide, Asbjørn (1999) ‘The Universal Declaration of Human Rights: a common standard of achievement’
  • Andorno, Roberto (2007) ‘The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics’
  • Davis, Kristin (2009) ‘The Emperor is still naked: why the protocol on the rights of women in Africa leaves women exposed to more discrimination’
  • Vanderbilt Journal of Transnational Law http://en.wikipedia.org www.un.org