Essay: Legal Value of the Universal Declaration of Human Rights

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Legal Value of the Universal Declaration of Human Rights

Human rights may have varied definitions but all those definitions revolve around a similar idea; necessary and inalienable rights that belong to all humans without which humans can neither enjoy freedom and nor maintain life that is considered quality and reasonable. When a right is referred to as 'inalienable' then the possibility of limiting, bestowing, selling away or bartering away such a right is eliminated. The rights included here are the right to life, freedom from slavery, freedom from torture, and the right to personal liberty and due process of law among others. What sets apart human rights from other civil liberties is the fact that human rights are established by international bodies and applied by all nations while other civil liberties are usually an establishment of a single state and the application limited within the jurisdiction of that country (Kennedy, 2002).

The origin of the modern human rights law can be traced back to the customs and theories that were established to direct how the rights and freedoms enjoyed by an individual relate to the state and also through earlier systems of international law which controlled inter-state relations. The increased need for proper documents to strengthen human rights necessitated the creation of the Universal Declaration of Human Rights by the United Nation in the year 1948. The creation of this declaration put into light the inalienability, universality, and inherence of human rights. The specific purpose for creating this declaration was to limit the behavior of the state which was now obligated to serve the citizens in terms of rights. The experience of the Second World War II has been pointed out as the direct pushing force for this declaration, there was a lot of pressure for a bill of rights that is internationally applicable throughout this period. This declaration is made up of 30 articles which have been considered in the making of international treaties, national laws and constitutions in the subsequent years.

There are questions on whether the Universal Declaration of Human Rights should be considered a treaty and if not what source of law is it? To explore this argument then it is necessary that the term 'treaty' is defined. A treaty can be defined as a written agreement between nation-states with the intention of establishing a relationship between them with the control of international law. The basic features of a treaty are; it must be binding, the states or organizations concluding must have treaty-making power, be under the government of international law, and must be in a written form. The Universal Declaration of Human Rights meets all these criteria, but does that qualify it as a treaty? The twist is brought about by the fact that a 'convention' also has the very definition, so what brings the difference? A 'treaty' and a 'convention' have no significant difference in international law; the only difference is noted on the number of parties involved (Kennedy, 2002). Whereas a treaty is signed by a limited number of parties a convention involves a larger number of parties or nations with the opportunity and effort of bringing more members on board. In respect to this then it can be concluded that the Universal Declaration of Human Rights is a convention and not a treaty. This is so because this declaration involves all nations universally and there have been efforts to ensure that no nation-state is left out on its application.

There is a direct link between art. 38 of the International Court of Justice and the Universal Declaration of Human Rights since this article refer to the application of international agreements such as conventions, customs, and general principles (Faiz, 2007). The first part of this article gives courts a direction to apply international law to disputes which originate from international conventions, general principles of law, and international customs and this must be done in due consideration of article 59 of the same document. The second part of this article further states that the power of the court to consider what is good or bad shall not be overlooked when applying such international law (Faiz, 2007; ICJ).

As mentioned earlier the Universal Declaration of Human Rights just like any other convention is expected to be applied in all states that are a party to it, however, violations of human rights have been reported in various regions and by art. 38 of the International Court of Justice giving courts the authority to apply international conventions it aims at reducing the violations that have been noted and encouraging states to be a part of this convention.

Even though the Universal Declaration of Human Rights is being applied across many if not all nation-states the question has been whether it has any legal value. A document is considered to have legal value if it has enforceable rights and can be considered when taking legal action. In most cases such a document handles matters that relate to law. The nature of the Universal Declaration of Human Rights gives it a lot of legal value. Even though the declaration is not a treaty its adoption aimed at giving an explicit definition of the words 'human rights' which is constituted in the United Nations Charter which is a document that binds all nations. This declaration has been considered by many international lawyers as part of customary international law and can be a basis for imposing diplomatic and moral pressure to any state authorities that go against the articles stated therein (Bernstorff, 2008).

The desire for legal institutionalization of this declaration increased with the emergence and creation of various relevant covenants notably in the 1970s. Such covenants worked as an inspiration to international lawyers who had the objective of binding international human rights law. This declaration was surrounded by the debate on its political and moral importance from inception and at some point this almost outweighed its very important legal significance. This led to the scholarly focus on how symbolic this document is in terms of legal law. Scholars argued that if this declaration did not have a legal backing then it would be off the limits of international law and that the lack of proper legal institutionalization it would end up being counterproductive for the cause intended (Bernstorff, 2008). It was seen that it would work as a loophole for further violations. Creating the human rights declaration without giving it the legal value would like stripping off the 'right to have rights' from the citizens.

Following all the debates and arguments that arose when the Universal Declaration of Human Rights was declared the pressure to make the declaration legal increased and even though there were various voices that were raised skeptically, a reaffirmation of its significance was received from the international lawyers during the 1960s and 1970s. This declaration was strongly defended throughout the 1990s and this was equated to transforming the declaration to international law which increased the unity among nation-states that were divided on this idea (Bernstorff, 2008).

The fight to bring legal value to this declaration had the intention of protecting mankind, the question is whether it has legal value to mankind. A closer look at the articles making up this declaration reveals the legal value that it has to mankind. Art. 3 states that, "Everyone has the right to life, liberty and security of person" (United Nations). This article thus recognizes that every individual cannot be deprived of life which is consistent with the laws that are established by all nation-states and applied by all courts. It therefore means that this article can be referred to when enforcing judgment or taking legal action against a person who has deprived the other of his/her life. Since it protects the life of mankind then there is no doubt… [END OF PREVIEW]

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