The National Movement and the Hindu Right Difference between Civiland Ceiminal Law > The Universal Declaration of Human Rights UDHR Print this Ube | Te Riramties ths Introduction Human rights are certain fundamental privileges or immunities to which all people have a claim, by the virtue of them being human, People may be divided on the basis of gender, skin colour, class, caste and language, but they are fundamentally similar in nature and these rights are meant to be enjoyed equally because of the similarities they share. These human rights are inalienable in nature - they are not given by anyone or can be taken away by anyone. Enjoyment of such rights by all leads to the overall development of the society. Following the above argument, the Universal Declaration of Human Rights (the UDHR or the Declaration) does not confer rights on anyone or try to take away certain rights. All it does is enumerate certain rights, which mankind has been enjoying and the enjoyment of which, is necessary for his well being, The adoption of the UDHR in 1948 was the first major achievement of the United Nations and was mainly undertaken as a response to the horrors of the Second World War, particularly the Holocaust. By setting up of certain standards, which every country needs to achieve, the UDHR makes an attempt to avoid the repetition of such a tragedy, whether on such a large scale or otherwise. When the United Nations General Assembly adopted the UDHR more than fifty years ago, it was done 50 as a resolution, not as a legally binding treaty among the signatory States. Yet today, the stature of, the UDHR is such that it is recognised as a part of customary international law, when it comes to the issue of human rights. In this paper, an attempt has been made to study the various influences on the drafting of the Universal Declaration, various criticisms of the same, and finally the status and role of the Declaration in today’s world. Research Methodology Aims and Objectives This paper aims to study the vatious influences an the Declaration. tt also covers certain debates and disagreements that took place during the course ofthe drafting of the UDHR. Final, this paper aims to study the status and the role of the UDHR in the modern scenario Scope and Focus This paper focuses on the influences of the French Declaration ofthe Rights of Man and ofthe Citizen, 1789 and the Second World War on the preparation of the preamble and the enumeration ofthe rights in the UDHR. It also focuses on the debates as to the status of the UDHR and certain criticisms of theUDHR in the modern context, Research Questions ‘© What was the influence of the French Declaration on the UDHR? ‘* Would the Universal Declaration have been prepared if not for the Second World War? ‘© Why was not any legally binding status given to the Declaration? ‘© What is the current status of the Declaration in international law? LIMITATIONS The influence of the Magna Carta, the UK Bill of Rights, 1689 and the American Declaration of Independence, 1776 on the UDHR has been largely left out of the purview of this paper. Debates only on certain articles of the UDHR have been looked into. Chapterisation ‘This paper has been divided into four chapters. The first chapter deals with the historical influences on the UDHR, particularly the French Declaration of Rights. The second chapter deals with the impact of the Second World War on the drafting of the Universal Declaration. The third chapter deals with the various disagreements between the nations involved in the preparation of the Declaration as to rights and the usage of certain phrases in the Declaration. The fourth and final chapter covers the status and role of the Universal Declaration in the modern context and certain criticisms involving the Declaration. For reference purposes, a copy of the Universal Declaration has been attached to this paper and titled Annexure | Style of Writing Both descriptive and analytical style of writing has been used during the course of this paper. Mode of Citation A uniform mode of citation has been followed throughout the paper. Sources Sources used for the preparation of this paper have been secondary sources in nature. They include articles and books on the subject available in the Library and information available on the Internet. For reference purposes, a copy of the Universal Declaration of Human Rights has been attached to this paper and titled Annexure 1 Chapter One The influence of the FrenchDeclaration on _ the Universal Declaration The initial presumption when one goes through the Universal Declaration is that it reflects some sort of natural rights view of human rights. Of the thirty articles of the Declaration, the first twenty-one are devoted to the classical eighteenth century civil and political rights. Although the philosophy of natural law lent much to the conceptual basis for human rights, with the passage of time and changes in social, economic and political conditions worldwide, it became increasingly important to translate vague concepts of rights derived from nature into specific written laws which would provide concrete protection for the rights of the individual within the larger framework of society. Great precedents in the recognition and protection of specific human rights lie in documents as the Magna Carta, the United Kingdom Bill of Rights, the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen [1] Other important precedents are found in the anti-slavery movements of the nineteenth century and in humanitarian laws such as those spelled out in the Geneva Convention of 1864, which protected medical installations and personnel during war, and The Hague Convention of 1899, which established humanitarian rules for naval warfare. The concept ofa State’s responsibility to treat foreigners in a just and civil manner also helped advance human rights norms. Yet these emerging international standards did little to stop the inhumanities of the two World Wars, People realised that an international organization must be created to ensure peace and protect the rights of the individuals not just in one place, but across the globe.[2] ‘There are remarkable similarities between many eighteenth century declarations of rights and certain phrases of the UDHR framed in 1948. For example the Virginia Declaration of 1776 proclaims, “all men are by nature equally free and independent, and have certain inherent rights." The American Declaration of Independence of 1776 states that it is “self-evident, that all men are created equal" and that “they are endowed by their Creator with certain unalienable rights,” The French Declaration of 1789 also speaks of “natural, imprescriptible, and inalienable rights” and asserts that all “men are born, and always continue, free and equal in respect of their rights.” The influences of the above rights can be seen, for example, in the preamble of the UDHR, which speaks of “inherent dignity" and of “equal and inalienable rights." Article 1 asserts that “all human beings are born free and equal in rights and dignity’ and that all nce.” The spirit of brotherhood to which it refers has the familiar are “endowed with reason and cons: ring of the 18" century fratemité.[3] Protagonists generally acknowledge the French Declarations of the Rights of Man and of the Citizen of the Age of Revolution as the precursors to internationally recognised human rights. it has been unambiguously stated that the starting point of human rights in the modern sense of the termis clearly to be found both in the Declaration of the Rights of the Man and of the Citizen voted during the French Revolution, and in the social conditions underlying it. It has also been stated “most debates about rights originated in the eighteenth century, and nowhere were discussions more explicit, more divisive, or more influential than in revolutionary France in the 1790s. The answers given then to most fundamental questions about rights remained relevant throughout the 19" and 20'" centuries, The framers of the UN Declaration of 1948 closely followed the model established by the French Declaration of the Rights of the Man and of the Citizen of 1789, while substituting human for the more ambiguous man throughout."[4] The essential difference between the historical context of the French Declarations and that of theUDHR is that the former expressed the perceptions of rising social forces within one country, whereas the latter expressed those of a victorious alliance of states after a world war. They are similar in their common description of the evil against which violence had to be used. Both held that disregard and contempt for human rights have resulted in barbarous acts, which have outraged the conscience of mankind. No one believed that the mere proclamation of rights would end wars and bring in a new era of freedom, equality and fraternity, but by all accounts, the principal drafters of texts of both 1789 and 1948 believed that establishing the rule of law and respect of human rights as the cornerstones of the new social order was their historic duty{5] The drafters assumed and probably rightly that human rights comprised an element of the continuous march of progress. By the formulation of general principles, in a short preamble, followed by a relatively limited enumeration of general propositions, in the form of numbered articles, connected initially or eventually to a constitution, the framers of the UDHR have closely followed the style and structure of the French Declaration.{6] Influence on the Articles of the UDHR The drafting history of Article 1 of the UDHER illustrates the ideological predilections of key individuals for whom the legacy of the French Declaration, consciously or unconsciously, embodied the source of the natural law grounding of the human rights. An explicit reference to the French Declaration was made in the draft by stating, * All men are brothers. They are endowed by nature with reason and conscience. They are born free and equal in dignity and in rights." The Commission made several improvements including replacing “all men’ with ‘all human beings’, and replacing the reference to others” with language that they “should act towards one another in a spirit of brotherhood’ [7] but no changes were made to the essence and the purpose of the draft, which was the direct influence of the French Declaration. The word "born" was also up for changes with a proposal for replacing the words “are born" with the words “should be born’, making Article 1 more a recommendation than a statement of fact. According to this view, it was more realistic to say that “human beings should be free and equal in dignity and rights" than to claim that they already In fact were. For others the word 19s are free and equal. Ahough the reason varied, the French delegation’s explanation finally influenced the vote to retain a reference to birth. The French delegation said that the use of the word "born" meant, “the right to freedom and equality were inherent from the moment of birth, The men who drafted the Bill of the Rights of Man of 1789 had fully realised the existence of inequality and social injustice, but they had felt it essential to affirm their beliefin man’s inherent right to equality and freedom.T8] Thus, for the French delegation at least, the word "born" was a clear reference to the French Declaration of 1789 and its natural rights philosophy of human rights. “born” was to be deleted, thus leaving only the claim that all human b ‘The deliberative process of the drafting of the UDHR also reveals that specific articles of the 1789 Declaration were points of reference. For example, the draft Article 9 of the UDHR referred to Articles 7 and 9 of the French Declaration, which related to criminal due process and the drafting of Article 10 of the UDHR developed out of Article 2 of the French Declaration, which relates to the right of a fair hearing. The concept of human rights violations as a cause of war and human suffering and the related right to resistance against oppression and tyranny are also common to both the French and the UDHR. texts. The claim of the Declaration of 1789 that “ignorance, disregard or contempt of the rights of man are the sole causes of public misfortunes and of the corruption of governments” also take root in the UDHR's affirmation that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind.[9] The above instances demonstrate the Commission's reliance on the French text. Abstract concepts such as liberty and equality that lie at the heart of the philosophy of human rights also trace their origin to the 18" century declarations. The definition of a positive sense of liberty,which implies sacrifice of individual desires for the common good rather than the pursuit of individual egoism, can be traced back to Article 4 of the French Declaration of 1789. The general principle of equality appears in Article 1 of the 1789 text, which the text of the UDHR emulated in 1948, with necessary changes. The 1793 French Declaration stressed this even more by including equality among the four natural and inalienable rights, declaring all men equal before the law and guaranteeing the equal right of all citizens to participate in lawmaking and in selecting their representatives. However, despite the awareness of oppression of women, and of the intolerable condition of colonised people, equality under the French Declaration did not include gender equality or racial equality, both of which form an integral part of the UDHR.{10] The failure to cary the French Declaration with specific reference to non-discrimination based on sex or race has often been denounced and still is whenever the context arises. By the middle of the 20" century, however, the society had drastically changed and the socio-economic and poitical position in most parts of the world was such that it had become unthinkable not to include a specific reference to racial and gender equality, in addition to the general principles of equal birthright and legal equality. The importance of the references to the French Declaration can best be seen by a remark of the Belgian delegate on the Third Committee debating the provisions of the UDHR who said, “We hope the Declaration would be adopted both as a homage to France and because it was important for the United Nations to give to the waiting world a tangible proof of its activity and usefulness.’[1 1] ‘Thus, it can be seen from above that, though the historical context of the French Declaration and that of the UDHR are very different, they have common features through their relation to war and through their relation to state. It can also be seen that the UDHR has solid roots in the French Declaration through the natural law concept that the individual has rights against the state, Le., both assume that the realisation of human rights occurs in the state-centric model of society. The drafters of the UDHR have frequently acknowledged and drew upon these roots, made necessary changes and incorporated ‘them into the UDHR. Chapter Two The Impact of World War Il on the Universal Declaration In their final comments, the delegates to the General Assembly made it abundantly clear that the Declaration was born out of the experience of the war that had just ended. Charles Malik, the representative from Lebanon said that the document "was inspired by opposition to the barbarous doctrines of Nazism and fascism.” The Indian delegate Mrs. Menon observed that the Declaration was “born from the need to affirm those rights after their violation during the war’, while Mr. Carrare, the delegate from Chile remarked, "From the ruins of destruction wrought by the Second War, mankind has, ‘once again fanned the immortal flame of civilisation, freedom and law.'[12] It is to be seen in this, chapter as to what led the delegates from various nations make such observations: ‘The atrocities of the World War Il, particularly those of the Nazis, emphasised the need for international protection of human rights. In January 1941, President Franklin Roosevelt gave the famous speech in which he highlighted the “four freedoms": freedom of speech and expression, freedom of worship, freedom from want and freedom from fear. Roosevelt proclaimed that the above were four basic freedoms that could never be legitimately abridged. In the Atlantic Charter expressed on January 1, 1942, the Allies stated, * a complete victory over their enemies is essential to defend life, liberty,