The Universal Declaration of Human Rights, the Foundation of all our Human Rights: Euro Rights Blog by Noelle Quenivet

On Human Rights Day it is worth remembering that the 1948 Universal Declaration of Human Rights not only created a set of human rights norms universally applicable but was also the stimulus for the adoption of countless human rights treaties on the international and regional plane.

Although the UDHR is not legally binding per se since it is a UN General Assembly resolution and its aim was only to set a ‘common standard of achievements for all peoples and all nations’ (1993 Vienna Declaration and Programme of Action, preamble) it has become the most used and referred to human rights instrument in the world. One of the main reasons for giving such weight to this General Assembly resolution is that although it reflects the then opinion of the international State community regarding human rights its content has remained unchallenged. In this light, the resolution must be understood in a more general context that imparts it with more legal weight in relation to its normative content. It was no doubt meant to give flesh to the various references to human rights included in the UN Charter and be an authoritative interpretation of the Charter.

Though particularising the principles ensconced in the UN Charter the UDHR also led to the creation of new legal norms, repeated and reinforced in other resolutions (e.g. 1960 Declaration on the Granting of Independence to Colonial Countries and People, 1963 Declaration on the Elimination of All Forms of Racial Discrimination). As a result the 1968 Proclamation of Teheran stated that the UDHR ‘constitutes an obligation for the members of the international community’ (para 2) and the 2005 World Summit Outcome Document reaffirmed the States’ obligations

to promote universal respect for and the observance and protection of all human rights and fundamental freedoms for all in accordance with the Charter, the Universal Declaration of Human Rights and other instruments relating to human rights and international law. (para 120)

The predominant view is that the UDHR is, either in whole or in part, of customary nature. Whilst some argue that the substance of the 1948 Universal Declaration of Human Rights is now to be regarded as customary law in its entirety others contend that there is ‘only’ a core of human rights obligations that are of customary nature. Leaving behind the academic debate of whether the UDHR reflects customary human rights norms and which specific rights have acquired customary status, domestic courts have not shunned from referring to it. Judge Kaufman stated in the Filartiga case that the prohibition on torture ‘has become part of customary international law, as evidenced and defined by the Universal Declaration of Human Rights.’ (Filartiga v Pena-Irala, 630 F 2d 876 (2d Cir 1980), 883) Similarly English courts referred to the UDHR in a number of cases (e.g. Regina v Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others (Appellants) [2004] UKHL 55, Islam (AP) v Secretary of State for the Home Department Regina v Immigration Appeal Tribunal and Another Ex Parte Shah (AP) (Conjoined Appeals) [1999] 2 AC 629). In the latter the House of Lords sought to interpret the principle of non-discrimination in order to shed light on the meaning of the expression ‘particular social group’ to determine whether an individual qualified as a refugee under the 1951 Geneva Convention. Using Article 2 UDHR that specifically refers to sex as a prohibited ground for discrimination the House of Lords was able to interpret the 1951 Geneva Convention so as to accommodate women as a particular social group.

The UDHR was part of a process; it is in fact the original point of the universal protection of human rights as the UDHR found its expression in numerous legal instruments, and notably treaties. Prominent examples are the Proclamation of Teheran (which affirmed the indivisibility of political and civil and economic, social and cultural rights) and the 1975 Helsinki Final Act whereby participating States agreed to ‘act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights.’ (Point 1(a)(VII)) It also constitutes the basis of two universal treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, that spell out in more details the content of the human rights listed in the Declaration.

On the regional level the 1950 European Convention on Human Rights (ECHR) reflects much of the values and norms of the UDHR. In fact, the drafters of the ECHR make specific references to the UDHR in the preamble:

Considering the Universal Declaration of Human Rights
proclaimed by the General Assembly of the United Nations on
10th December 1948;
Considering that this Declaration aims at securing the universal
and effective recognition and observance of the Rights therein
declared;
…  Being resolved, as the governments of European countries
which are like-minded and have a common heritage of political
traditions, ideals, freedom and the rule of law, to take the first
steps for the collective enforcement of certain of the rights stated
in the Universal Declaration,

Although the ECHR is often viewed as one of the most comprehensive legally binding instruments for the protection of human rights, the European Court of Human Rights has referred to the UDHR to support its position and interpret provisions of the Convention or its Protocols:

– right to life (Article 3 UDHR) in K-H W v Germany (Application No 37201/97, para 95) and Streletz, Kessler and Krenz v Germany (Applications Nos 34044/96, 35532/97 and 44801/98, para 93);

– prohibition of torture (Article 5 UDHR) in Al Adsani v United Kingdom (Application No 35763/97, para 60);

– right to education (Article 26 UDHR) (Catan et al v Republic of Moldova and Russia, Application No 43370/04, paras 77, 125 and 136).

Another sign that despite the wide-encompassing protection offered by the ECHR to individuals the UDHR is still of relevance in the European context is its use by judges in dissenting and concurring opinions (e.g. principle of non-retroactivity of penal law (Article 11 UDHR) in Concurring Opinion of Judge Pinto de Albuquerque, Joined by Judge Vucinic (Maktouf and Damjanovic v Bosnia and Herzegovina, Application No 2312/08 and 34179/08) and right to recognition (Article 6 UDHR) in Partly Concurring, Partly Dissenting Opinion of Judge Vucinic (Kuric et al v Slovenia, Application No 26828/06)). It also demonstrates that ECtHR judges understand the Convention to be part of a broader system of protection of human rights, one that is based on the UDHR.