(Photo credit: Fanack)
On 14 November 2008, a copy of the Universal Declaration of Human Rights (‘UDHR’) burst through Earth’s atmosphere aboard the space shuttle Endeavour. It was delivered to the International Space Station where it now sits in orbit above our planet. That was an event which I described in a separate blog post as “[a]n explosive celebration of two parallel projects which were to some degree successful in uniting the international community: human rights and space exploration.”
It is fitting, then, that the same week that the UDHR turns 70 years old, NASA’s Voyager 2 space probe departed our solar system en route to other worlds: two more monumental events which deserve to be celebrated. In this post I focus on the former and explain how it is that the UDHR, decried by some as a non-binding declaration of little relevance, continues to resonate today.
To begin with a little history. The United Nations was established in 1945, immediately after the end of the Second World War. That body was concerned primarily with securing and maintaining international peace and security; however, human rights was placed on the agenda and the UN Human Rights Commission was set up in order to establish an international framework. The UDHR was drafted between February 1947 and December 1948. Its original purpose was to serve as an initial declaration on human rights, to be followed by two legally binding covenants – the International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). Once drafted, the Declaration passed without a single dissenting vote on the floor of the UN General Assembly.
One of the most striking features of the process which led to its creation was the role played by delegates from states, both large and small, from across the entire globe. In an excellent article in the Human Rights Quarterly, Susan Waltz explains that 250 delegates and advisors from 56 different countries participated in its creation.
There were also – perhaps for the first time on such a global scale – a large number of powerful female voices which contributed to shaping the UDHR. Eleanor Roosevelt was Chair of the Human Rights Commission, responsible for overseeing the process. However, it was arguably the individual female delegates who left the biggest mark. Waltz notes in particular that the Indian delegate, Hansa Mehta, took issue with the gendered phrase “all men are created equal.” Despite acquiescence on the part of Eleanor Roosevelt in relation to the wording, Mehta and the UN Commission on the Status of Women refused to relent. In Waltz’s words “it is thanks to Mehta’s persistence that the text of the UDHR reads: ‘All human beings are born free and equal.’”
The involvement of such a diverse array of individuals led to the creation of a rich and varied text. It contains 30 substantive articles, enshrining everything from our basic rights not to be discriminated against, tortured, killed or enslaved; to more forward thinking protections such as one’s right to social security, rest and leisure and to an adequate standard of living. It is a magisterial document, with a simple aim: to establish a “common standard of achievement for all peoples and all nations.”
There has, nevertheless, been some historic disquiet about the fact that the UDHR remained for some time a technically ‘non-binding’ document. Today it is arguable that the unenforceability of the UDHR has, at least in part, been remedied by its inclusion as one of the bases for the Universal Periodic Review – a process by which the UN Human Rights Council periodically monitors the human rights compliance of its member states. It now sits alongside binding treaties such as the ICCPR and the ICESCR and the Working Group of the UN Human Rights Council can make recommendations for states to adopt which are based on its provisions.
Putting the above aside, however, prominent human rights commentators such as William Schabas have long been critical of the binding/non-binding dichotomy. They argue that to dismiss the UDHR as a non-binding instrument is to drastically downplay the impact it has had since its inception. I would go further and suggest that it is perhaps precisely because of its original status that the document was drafted in such broad terms and has since come to shape the global dialogue about human rights, both within and outwith the courtroom.
To begin with the legal sphere, despite its ‘non-binding’ status, the UDHR has been relied on by judges sitting in courtrooms across the globe – from the International Court of Justice (‘ICJ’) to our own Supreme Court.
The ICJ described the principles enshrined under the UDHR as “fundamental” in the 1980 case of United States Diplomatic and Consular Staff in Tehran (USA v Iran), concerning the US personnel held hostage in an Iranian embassy. Providing a separate ruling in an Advisory Opinion about the unlawful presence of South Africa in the territory of Namibia, Judge Ammoun took the matter further when he said that certain provisions of the UDHR are binding as they constitute a codification of customary international law, or have since “acquired the force of custom through a general practice accepted as law.” More recently, in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), when explaining the critical importance of the prohibition on torture, the ICJ relied on the provisions of a number of “universally applicable” international instruments and “in particular the [UDHR].”
Turning to the position in our own domestic courts, the Supreme Court has referenced the provisions of the UDHR in a large number of important cases. Its provisions on equality and non-discrimination were noted in Lord Bingham’s landmark ruling in A v Secretary of State for the Home Department, that the government’s policy of indefinitely detaining foreign nationals pursuant to terrorism legislation was incompatible with their human rights. Another case, in 2013, saw the Supreme Court dismiss a contrived argument by the government that the appellant, Mr Al Jedda’s, statelessness was a result of his failure to re-apply for his Iraqi nationality rather than the government’s deliberate revocation of his British citizenship. Lord Wilson, giving the leading judgment, explained his reasoning by reference to the UDHR:
The evil of statelessness became better understood following the re-drawing of national boundaries at the end of the two world wars of the twentieth century and following, for example, the Reigh Citizenship Law dated 15 September 1935 which provided that all Jewish people should be stripped of their citizenship of the German Reich. The [UDHR] adopted by the United Nations on 10 December 1948, provided in article 15:
(1) Everyone has the right to a nationality
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Just this year, in Lee v Ashers Baking Company Ltd, the Supreme Court found that a refusal by a Christian bakery to produce a cake with the message ‘Support Gay Marriage’ was not unlawful. This was because the bakers would have refused to supply such a cake to anybody, not just the gay man who sought to purchase it. Nevertheless, Baroness Hale referenced the provisions of the UDHR when explaining that she did not seek to “minimise or disparage” the problem of discrimination against gay people:
Everyone, as article 1 of the [UDHR] put it 70 years ago is “born free and equal in dignity and rights”. Experience has shown that the providers of employment, education, accommodation, goods, facilities and services do not always treat people with equal dignity and respect, especially if they have certain personal characteristics which are now protected by the law. It is deeply humiliating, and an affront to human dignity to deny someone a service because of that person’s race, gender, disability, sexual orientation or any of the other protected personal characteristics. But that is not what happened in this case and it does the project of equal treatment no favours to seek to extend it beyond its proper scope
The historic reliance placed on the UDHR by both the highest court in our land and the principal legal institution of the UN belies any suggestion that it is no more than a non-binding declaration.
Perhaps more important than any citation by lawyers or judges, however, is the use of the UDHR by ordinary people. I explained above that its provisions were shaped by delegates from around the world. It has also since been translated into more languages than any other existing text. Because of this the UDHR has come to operate as a yardstick against which victims of human rights abuses everywhere have been able to measure and express their own grievances.
In the words of Professor David Kennedy in his excellent book ‘The Dark Sides of Virtue’:
[The UDHR] is used by individuals and civil society groups in order to protest against forced evictions of slum dwellers from an informal settlement in Nairobi, by Chinese workers protesting against repressive exploitation of their workforce as well as by Western civil society groups protesting against torture in Guantanamo.
In these situations, he says, the UDHR does not act merely as an ‘inspiration’, but “as a last desperate attempt to formulate experiences of pain, deprivation, and distress in a politically more powerful language.” It is in its ubiquitous use by grass roots human rights movements – rather than in the footnotes of legal judgments – that its impact can be most keenly felt.
This modern application of the UDHR – rather than the original intention of its drafters – is what lends credence to Eleanor Roosevelt’s description of the document as an “international Magna Carta.” It is well known that the Magna Carta was drafted into law in 1215, but famously fell into obsolescence for centuries until great 17th and 18th century legal thinkers, such as Sir Edward Coke and Sir William Blackstone, began again to reference it in their legal commentaries. Since then it has become both a key statement of our basic rights and freedoms and a part of our common law.
It is precisely because Magna Carta was obtained at the point of a sword that its proponents were able to extract such sweeping concessions from King John. Similarly, the fact that the UDHR was originally considered to constitute no more than a non-binding declaration is what enabled its proponents to garner almost unanimous support for its wide-ranging and varied provisions. Whatever may have been the drafters’ original intention, however, the UDHR has since blossomed into one of the most important human rights documents in existence. Its provisions have played on the lips of human rights advocates across the globe and many now have the force of law.
This shift over the course of 70 years, from what many considered to be a symbolic gesture to a battle cry for the aggrieved and a legal instrument in its own right, is where Eleanor Roosevelt’s words truly come into their own.