Outline 3 limitations of UDHR 1948 as machinery for effective enforcement of Human Rights Protection. 1.

Dependency of UDHR to other enforcement mechanism. Universal Declaration of Human Rights by its nature is a set of declaration. It is a declaration in which all member of the United Nation recognized the existence of the declaration. UDHR is a set of rules that act as a guideline and general provision of basic human right protection. The provision is very general that it does not provide any specific effect upon breach. It is also a fact that the declarations made in the UDHR are not binding 1. The declaration may come in the form of persuasive nature and hoping that the member of the United Nation to adopt it and did not commit any breach or violation of human rights. More over to become as an effective enforcement of Human rights protection, it is almost impossible. It is like a knight but with out a sword, UDHR do come in a shining armor but no power to protect what it was meant for. After a lengthy debate in the international level, the declaration was made as a symbol of political conscious and rhetoric. With out the long hand of law, in the form of proper citation of the binding effect in the declaration, UDHR are a word in a piece of paper. 1.1 Instances where UDHR are treated as a mere affirmative references The acknowledgment to the Declaration exist when the provision in the declaration having a customary international law offence character. There have been several cases try on the offence of breach of international customary law. And the court attitudes toward the UDHR are simply referring it as an affirmative reference to the violation of custom as well as the UDHR.

Lester R Kurtz & Jennifer Turpin, 1999, Encyclopedia of Violence, Peace and Conflict, USA, New York- Boston

In the case of Filartiga v Pena-Irala2, the United States court of Appeal for the second circuit was facing the question as to whether torture was a breach of international law. The court in its decision held that there is no dissent in the view that the right against torture has become part of the international customary law, which has been clearly defined in the UDHR3. While in the case of Streletz, Kessler and Krenz v Germany, where the German Democratic Republic leaders were convicted after the German unification, the court in its judgment had make a reference to the UDHR article 3 as an interpretation to the case and the violation against the rights to live are erga omnes. The court had adopted the same attitude when the court tries the case of Al Adsani v United Kingdom. In affirming that the prohibition against torture are a serious breach of customary international law and had gained the status of preemptory norm of jus cogen, the court had value the existence of certain provision in UDHR as the guideline. 1.2 UDHR dependency to other treaty to protect Human Rights. The United Nation themselves are not confidence on the Declaration and had takes steps to ensure the protection of Human Rights are properly guarded. Later after the adoption of the Declaration, the United Nation had proposed two treaty namely international Covenant on Civil and Political Rights [ICCPR] and International Covenant on Economic, Social and Political Rights. The two treaties contain the rights depending on matter concerning the matter of human rights in politics, economy and social. A treaty is binding on the signatory party. The country that ratified the treaty is bound to follow and perform their obligation. Violation of any provision would raise ground in the international court or tribunal.

2 3

Filartiga v Pena Irala (1980) 630 F 2d 876 Jack L. Goldsmith & Erica A. Posner, 2005, The Limit of International Law, USA, New York

UDHR as a pioneer to the protection are depending to the treatys effect of binding to ensure that no violation of rights occurred. Some provisions in both treaties are essentially from the UDHR. This is the only credit that the UDHR owned as the first attempt of the United Nation to protect the human rights. 2. Fettered National Sovereignty4 The implementation crisis facing the principle united nation human rights legal standards is now of dangerous proportions. The enforcement of human right should apply universally. However, it is restricted to some certain extent that subject to countrys laws and regulations. Despite the establishment of international standards for human rights, many nations cling to the view that respect for those rights should be granted or withheld at the discretion of national governments. This attitude ignores the operation of forces that are drawing the world together and paving the way for the establishment of a new order based on the recognition that what happens to one member of the human family happens to us all. The primary goal of the united nation community has been achieve universal ratification of the human rights treaties. The underlying belief is that once ratification is realized, the implementation techniques can be strengthened. Once committed to participation, states will find it difficult to pull out and will find themselves trap in an ever expanding network of international supervision and accountability. There are several ways that a State which has signed up to a human rights instrument can limit the range of obligations it assumes for instance reservation.5 2.1 Reservation A reservation is the means by which a state can be party to a treaty while excluding or modifying one or more provisions. The Vienna Convention on the Law of Treaties attempted to codify customary international law on the matter, though in some aspects represented progressive development of the pre-existing customary law.
4

Obstacles to Progress in Human Rights, 1993, Statement to the United Nations World Conference on Human Rights, Vienna, Austria. 5 Rhona K. M. Smith, 2007, Texts & Materials on International Human Rights, USA, RoutledgeCavendish.

The effect of reservation, Article 21 of Vienna Convention on the Law of Treaties 1969: 1. A reservation established with regard to another party in accordance with articles 19, 20 and 23: a) Modifies for the reserving state in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservations; and b) Modifies those provisions to the same extent for that other party in its relations with the reserving states. 2. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 3. When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation. It is clear that a valid reservation removes the provision concerned from the legal obligations of a state. A state is neither bound by the reserved provision, nor, in the interest of reciprocity, can it hold another state to account for infringing said provision. Clearly the use of reservations can seriously undermine universality. The various international human rights monitoring bodies have had cause to discuss issues arising from the use of reservation. For instance, in the human rights committees view on Human Rights Committee, General Comment 24 (1994) Issues relating to reservation made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declaration under article 41 of the covenant. 4. The possibility of entering reservation may encourage the states which consider that they have difficulties in guaranteeing. Reservations may serve a useful function to enable States to adapt specific elements in their laws to the inherent rights of each person as articulated in the covenant. However it is desirable in principle that states accept the full range of obligations because the human rights norms are the legal expression of the essential rights that

every person is entitled to as a human being. The committee proceeded to expand on this with more detailed examples of reservation and their view thereon. The committee was obviously focused on existing reservations and proposed reservation to the International Covenant on Civil and Political Rights. The committee identified certain reservations which would not be compatible with the covenant. For example reservations that offend preemptory norms would not be compatible with the objects and purpose of the covenant. However, reservation is not totally a factor that limits the effectiveness of universal declaration on human right. Reservation is also one of the options to the state party to make an exception as contradict to the domestic rule. Although it is permitted, but subject to some conditions. The structure of modern reservation, as in the ICJs opinion in Reservation to the Convention on the Prevention and Punishment of the crime of Genocide and in the Vienna Convention on the Law of Treaties, is committed to safeguarding these interests of state parties. Prior to the Reservation opinion, international practice generally applied a unanimity rules: a state could enter a reservation to a multilateral treaty if it was accepted by all the other parties. 6 The rule reflected a rigid dedication to maintaining the integrity of all terms of a treaty and to obtaining every state partys consent to any changes in it. 3. Power of Derogation. As generally stated in Article 29(2) of Universal Declaration of Human Rights adopted on 10 December 1948, in the exercising of his rights and freedoms, everyone shall be subject only to such limitations as are determined by the law solely for the purpose of securing due recognition and respects for the right and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. The power to derogate from the rights and freedoms established by the
6

Jean Kyongun Koh, 1982, Reservation to Multilateral Treaties: How International Legal Doctrine Reflects World Vision, Harv. Intl L.J.

convention is allowed in two ways7. In the first place, a number of articles contains an express exception along the line of Articles 11(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1953, which prohibits restrictions on the rights of assembly and association other than such as are prescribed by law and are necessary in a democratic society in the interest of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others. Not dissimilar provisions appear in Articles 8(2), 9(2) and 10(2). More important in this context, however, is more general power of derogation available under Articles 15(1) in time of war or other public emergency threatening the life of the nation. This power is subject to certain limitations. For example, it is only to be exercised to the extent strictly required by the exigencies of the situation and provided that the measures taken are not inconsistent with the states other obligations under the law. In addition, no derogation is allowed in respect of certain provisions: Article 2, except in respect of deaths resulting from the lawful acts of war; Article 3, Article 4 (1) and Article 7 (Art. 15 (2)). And the final limitations is that any party taking advantages of this power shall keep the Secretary-General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore8. In the Lawless case, the applicant had been detained without trial from 13th July to 11th December 1957, under the Irish Offences against the State (Amendment) Act of 1940. The court accept the Irish view that Lawless was a suspected member of the I.R.A and that his detention was considered necessarily to prevent the commission of an offence within Article 5(1)(c), but held that this part of paragraph(c) was nevertheless subject to the overall requirement that a person so detained should be brought before a competent legal authority (Art. 5(1)(c) itself), and should be tried within a reasonable time (Art. 5(3)).

7 8

D. W.Greig,1976, International Law, London Butterworths. Rudolf Bernhardt & John Anthony Jolowicz, 1987, International Enforcement of Human Rights, Max Planck Institute 1987

As the Irish government had failed to comply with Article 5 as a whole, the question remained whether there had been circumstances justifying a right of derogation within Articles 15. The court defined other public emergency threatening the life of the nation as an exceptional situation of crisis or emergency which effects the whole population and constitute a threat to the organized life of the community of which the State is composed, and went on to decide that the activity of I.R.A at the time in question. Thus, the power of derogation on the factor of security and public order limits the ultimate principle of all human beings are born free and equal in dignity and rights which stressed under Universal Declaration of Human Right 1948 and adopted in European Convention for the Protection of Human Rights and Fundamental Freedoms 1953 as machinery for the effective enforcement of Human Right protection.