The Scope of UNDHR

Objectives:
1. The outstanding characteristics and influencing features of the Universal
Declaration of Human Rights.
2. The Declaration as a universally accepted standard norm of human rights for all
the peoples and for all the nations.
3. The moral value as well as legal significance of the Declaration.
4. Various initiatives undertaken by the United Nations in the field of human rights,
especially in the post 1948.
5. The impact of the Declaration on the regional documents on human rights
adopted elsewhere in the world.
6. The relative inspiration and reflection of the Declaration in the Constitution of
India.

Introduction

The Universal Declaration of Human Rights was adopted by the U.N. General
Assembly basically for the purpose of defining and enumerating the term human rights and
fundamental freedoms of individuals as outlined in the United Nations Charter. The
international community, after having experienced the most devastating First and Second
World Wars, adopted the Declaration as a global human rights standard. The Declaration has
not only been a unique instrument on human rights but it has also become the basic
inspirational foundation for global, regional and national efforts on human rights. A
considerable amount of impact of the Declaration has also been found reflecting on various
national constitutions and domestic legislations elsewhere in the world.
Therefore, every nation seems to have committed herself to observe and take
appropriate measures individually or collectively for securing the universal recognition and
due observance of human rights and fundamental freedoms of individuals as set forth in the
Declaration.

Significance of the Declaration

The Universal Declaration of Human Rights is globally termed as the Magna Carta of
human rights as it was one of the path-finding major global achievements in the field of
human rights. Even though, the Declaration lays down a comprehensive human rights and
freedoms of individuals, it does not stipulate the means and modes through which such rights
and freedoms shall be promoted and protected. The reason being is that the Declaration was,
primarily not intended to be legally binding document and, as such, it did not impose any
legal obligation on the high contracting states parties. Therefore, from the point of legal
perspective, the Declaration was only a recommendation as it was not legally binding on the
states parties. However, the implications of overwhelming support of international
community for the adoption of such declaration i.e. UDHR interalia its meaningful
explanations and enumeration of human rights and fundamental freedoms as outline in the
U.N. Charter have shown the important characteristics of the Declaration. This has, in fact
created a well-founded obligation to be undertaken by the states parties regardless of their
different social, political, economic, ideology and cultural systems.
Hence, it is clear that the contents of the Declaration are not only the message of
hope, equality, liberation and empowerment but they are also increasingly invoked and
asserted within and outside United Nations thereby creating a profound influence on the
minds of the people of this world. In the matter of the legal significance and value of the
Declaration, it is observed by many eminent writers of human rights expressing that
Declaration has created a new rule of customary international law. To mention the view
expressed by the then Justice Nagendra Singh of International Court of Justice, “the
Declaration, therefore, was not a mere resolution of the U.N. General Assembly but a
continuation of the Charter of U.N. and had the dignity of the Charter”. Hence, it is not an
exaggeration to state that any violation of the provision of the Declaration shall essentially
amount to violation of the Principles of the U.N. Charter. In addition, some of the provisions
of the Declaration are found consisting of the basic nature and characteristics of customary
international law. So, henceforth, the contents of the Declaration have grown into customary
law of the nations and thereby attributing the salient features of peremptory norms or jus
cogens.

The World Conference on Human Rights held in Tehran in 1968 also observed that the
Declaration has constituted an obligation for the members of the world community. Although
such nature of obligation is not defined, it is generally assumed that it possesses all the
requisite features of customary rule and it is also widely accepted as well as used as a
parameter for assessing the conducts of the states parties pertaining to the promotion and
protection of human rights in their national domestic jurisdictions.

U.N. initiatives

The United Nations proclaimed that people do have those rights and freedoms, laid down in
the Declaration, not merely because they belong to a particular group or nations. This is
mainly because; the Declaration applies to all human beings. The provisions of the
Declaration have been used as the basis for various initiatives and measures undertaken by
the U.N. and its organs, more particularly in the post 1948. That is why the Declaration itself
remains to be the main source of inspiration for all people and all nations. It could also be an
important message to all who are committed to freedom, justice and peace in the world. On
the other hand, in evolving and developing the global human rights jurisprudence by the U.N.
and its subsidiary organs, the contents of the Declaration are used inclusively by reflecting
them adequately in a number of international human rights resolutions and documents, as
such, U.N. declarations, conventions and covenants adopted under the auspices of the U.N.
and other Specialised agencies.

The adoption of such U.N. declarations on different aspects of human rights shows the
positive measures undertaken in the field of promotion and protection of human rights by the
world community. However, those declarations are literally not the legally binding
documents, as a result, during the passage of time, most of them have been transformed into
binding conventions or covenants by the United Nations General Assembly reflecting the
principles and contents of the Universal Declaration of Human Rights. In addition, the
Principles and contents of the UDHR have also been found well reflected in a number of
international specialised human rights documents adopted by the U.N. and its specialised
organs.

Impact on regional arrangements:

Though there is no specific provision in the U.N. Charter for making regionalism in the field
of human rights, the idea of developing regional arrangements inter alia adopting regional
conventions on human rights flows from the mandate of Chapter VIII of the U.N. Charter.
Eventually, the member states have also pledged themselves under article 55 of the U.N.
Charter as well as under the Universal Declaration of Human Rights to promote, achieve and
respect for observance of human rights and freedoms. Accordingly, some of the regional
organisations of the world adopted regional conventions on human rights in conformity with
the global standard. The actual initiative for adoption of such regional arrangements,
especially for promotion and protection of human rights has been gaining ground since the
adoption of the UDHR in 1948 by the U.N. General Assembly. Therefore, the regional
arrangements in the field of human rights reaffirm the provisions of the U.N. Charter inter
alia the contents of the UDHR. As such, the due recognition of human rights by the global
community has, virtually enhanced the growth and development of the contemporary
international relations and co-operation among the nations in all respects. To mention one of
such regional conventions on human rights is the European Convention on Protection of
Human Rights and Fundamental Freedoms, 1950 which was the first ever adopted as a
regional instrument on human rights by European Union. One of the important reasons for
European nations to set up such a regional human rights arrangement was that Europe being
the main theatre of two world wars and other man made conflicts, it was felt necessary for the
European community to have their own regional system, so as to bring a concrete Political,
economic and social unity and understanding in the region.

In similar way, the American Convention on Human Rights, 1969 was adopted by the
Organization of American states (OAS) reflecting the contents of the UDHR. The American
Convention enumerates the idea of free man enjoying freedoms from fear both in the areas of
civil, political, social-economic and cultural rights which are found more or less similar to
that of the provisions of the Declaration. The third such regional convention on human rights,
which came into force after the adoption of 1948 Declaration, was the African Charter of
Human and People’s Rights, 1986 adopted by the Organisation of African Unity (OAU). The
Charter was adopted with the aim to promote human and people’s rights and to ensure their
promotion and protection in the African region. It is apparent that such regional
arrangements, reflecting the principles and contents of the UDHR are being set up with the
aims to strengthen the respect and observance for human rights at all levels and at all times.
Interestingly there is no conflict between the regionalism and globalism, especially in the
field of human rights. This is mainly because both are found to be supplementary and
complementary to each other. It is also equally interesting to know that attempts are also
being made to adopt regional arrangements on human rights in the Arab region as well as in
the Asian region. The workings of the regional mechanisms under the regional instruments on
human rights have adequately shown and proved that they could give effect to the rights and
freedoms of individuals proclaimed in the 1948 Declaration in the respective region.

Declaration and Constitution of India

Many national constitutions were enacted elsewhere in world after the adoption of 1948
Declaration. They are found to be greatly influenced by the provisions of the Declaration, for
instance, in the national constitutions of Algeria, Burundi, Cameron, Congo, Ivory Coast,
Male, Senegal and India among others. Although most of the national constitutions and
domestic legislations did not directly refer to the Declaration, they were either found
reproducing the terminology of the Declaration or, adhering to the provisions indirectly.
Henceforth, it is evident that due recognition has been given to the provisions of the
Declaration in almost all the national legislations which came into effect in the post 1948.
Republic of India was one of the signatory member nations to the Declaration. The
Constitution of India was enacted and adopted by the Constituent Assembly on 26 th Nov.,
1949 and later, it was brought into force from 26th Jan., 1950. Interestingly, when the 1948
Declaration got underway for the adoption by the U.N. General Assembly, at that point of
time, the Constituent Assembly of India was preparing the draft for the Constitution of India.
As such, the constitution of India was also influenced by the Declaration, thereby many
constitutional provisions were found to be incorporated giving due recognition to the
provisions of the Declaration. To begin with the preamble to the constitution lays down the
dignity of individuals which implies that worth of inherent in human person is duly
recognised and guaranteed by the law of the land.

Those fundamental rights and freedoms, embodied in the part III of the constitution of India,
are nothing but human rights in the context of India. Though, literally the term human rights
has neither been used nor defined expressly in the constitution, it is very must evident that the
incorporation of Parts III & IV of the constitution has indicated a clear constitutional mandate
which gives effect to civil and political rights as well as economic, social and cultural rights
as enumerated in the Declaration. Such inclusion of both the sets of human rights in the
constitution of India primarily took place even before the adoption of the two sisters’
International Covenants on human rights adopted by the U.N. General Assembly in 1966.

Interestingly, those civil and political rights as set forth in articles 3-21 of the Declaration are
also found in similar manner in the constitution of India under the banner of fundamental
rights which are justifiable in the court of law. On the other hand, the economic, social and
cultural rights as envisaged in articles 22-27 of the Universal Declaration of Human Rights
are adequately mentioned under the caption of directive principle of state Policy; however,
they are not enforceable in the court of law. In addition, the apex court of India has also been
increasingly invoking the provisions of the Declaration in many cases involving with human
rights issues, thereby recognising and re-affirming the human rights of citizens and
individuals guaranteed by the constitution in matching with the global standard.

Judicial response

The international treaties are not the self-executing documents in India. This is mainly
because of the constitutional mandate as provided in article 253 which empowers the
parliament to make appropriate legislation for implementing the global agreements or
conventions in the domestic system. So, therefore, the judiciary in the commonwealth
countries like India interpret their constitutional provisions by relying on the Charter of U.N.
as well as other International human rights instruments. That is why the courts of India have
been interpreting the text of the constitution liberally by referring to the Universal
Declaration of Human Rights. For instance, the Supreme Court of India held in People’s
Union for Civil Liberties Vs. Union of India (1972) 3 SCC 433 that the rules of customary
International law, which are not contrary to the municipal law, shall be deemed to be
incorporated in the domestic law. In Kesavananda Bharati vs State of Kerala AIR 1973 SC
1461, the apex court also held that this court must interpret article 51 of the constitution in the
light of the U.N. Charter as well as the Universal Declaration of Human Rights. The same
court in the Jolly George Varghese vs. Bank of Cochin, AIR 1980 SC 474 held that the
Declaration has not created a binding set of rule, however, international binding treaties have
stimulated and informed the national judicial institutions and also inspired the national
legislative actions. Similarly, in Kishore Chand vs. State of Himachal Pradesh, 1991 SCJ 68,
the apex court held that the Declaration has great influence in the interpretation of the
constitution of India. Therefore, it is cleared that the prevailing juridical approach of India
shows the progressive development and growth of human rights Jurisprudence over the
domestic legal order in compliant the global human rights standard and norms.

Conclusion:

The Universal Declaration of Human Rights has, undoubtedly provided for a global standard
as well as universally accepted path-finding instrument on human rights that ought to be
recognised and guaranteed by all the peoples and all the nations. It has also been an important
document and fundamental source of inspiration for national, regional and international
efforts in promoting and protecting human rights. The provisions of the Declaration have
been found well reflected in the regional conventions on human rights as well as in several
other national constitutions of the countries. The constitution of India which came into force
from 26th January, 1950 was greatly influenced by the Declaration, therefore, those
fundamental rights and freedoms guaranteed in the part III of the constitution and those
provisions set forth in the directive principle of state policy, are found to be more or less
similar to that of those principles and contents laid down in the Declaration. In addition, the
apex court of India has pointed out categorically in many cases that the Declaration has great
influence in the interpretation of the constitution. Therefore, such juridical approach of Indian
court reveals the progressive stimulation and relative impact of the Declaration over the
Indian legal system.

Glossary

Global human rights standard - Human Rights norms commonly accepted

and followed by the world community.
Dissent - Opposing and rejecting to a particular
issue or matter.
Magna Carta of human rights - First written milestone of international
document on human rights.
U.N. Subsidiary organs - Those subordinate agencies working under
the U.N.’s control and supervision.
Pledge - Promise or self-agreement undertaken by
the states parties to do or not to do
something.
Signatory state - State party which has acceded to an
international treaty by signing and
ratifying the said treaty.
Rules of customary international law - Unmodified and unwritten binding rules of
international law.
FAQs:

1. Why is the UDHR considered to be the Magna Carta of Human Rights?

Ans: The Declaration is often termed as the Magna Carta of human rights as it was the
first major global human rights document ever adopted by the U.N. General
Assembly without any dissent. It has not only defined the term human rights but also
enumerated the minimal globally accepted lists of human rights for all the
individuals.

2. What did the 1968 World Conference on Human Rights observe about UDHR?
Ans: The World Conference on Human Rights held in Tehran in 1968 observed that the
Declaration has constituted an obligation for the members of the world community.
Since the Declaration possesses all the required features of the rules of customary
international law, the states parties to the Declaration are found obligated to follow
it.

3. What could be the message of the Universal Declaration of Human Rights?

Ans: The Universal Declaration of Human Rights applies to all the peoples and nations
irrespective of various differences among them. The Declaration has obviously
created a global message of hope, equality, liberation, freedom, empowerment,
justice and peace among others.

4. What are the global documents which have reflected the contents of Universal
Declaration of Human Rights?
Ans: The United Nations and its subsidiary organs have undertaken constantly to evolve
and develop global human rights jurisprudence, especially after the adoption of the
Declaration. The contents of the Declaration are adequately found reflected in the
various UN resolutions, declarations, conventions and covenants among others
which have been adopted under the auspices of the United Nations and its subsidiary
agencies.

5. Mention some of the regional conventions on human rights which have been
influenced by the Universal Declaration of Human Rights.
Ans: The regional convention on human rights, specially adopted after 1948 Declaration,
such as, the European Convention on Human Rights and Fundamental Freedoms,
1950, the American Convention on Human Rights, 1969 and African Charter on
Human and People’s Rights, 1981 are some of those regional instruments on human
rights which have greatly been influenced by the Declaration.

6. How did the adoption of the Universal Declaration of Human Rights influence the
Indian Constitution?
Ans: The Constitution of India was enacted and adopted by the Constituent Assembly on
26th Nov., 1949, which came into force from 26th Jan., 1950. At that juncture, the
U.N. General Assembly already adopted the Declaration in 1948, that is how, the
constitution drafters of India were inspired and influenced by the contents of the
Declaration, thereby incorporating substantial parts of it in the Constitution of India.

7. Why are the global treaties not the self-executing documents in India?
Ans: The Constitution of India is the law of the land which is the fundamental source of
governance of state. The international treaties are not directly enforceable in India
because there as a clear constitutional mandate that empowers the parliament of India
under article 253 of the constitution to enact appropriate legislation so as to give
effect to the international treaties to which India has been a party state. Until and
unless, such global treaties are transformed into domestic legislations, they are not
allowed to be applied in India.

8. Why are the India Courts bound to interpret the constitution of India in the light of
international human rights laws?
Ans: This is generally accepted judicial practice of the commonwealth nations including
India, where Anglo-Saxon-jurisprudence is followed. Such courts normally interpret
there constitutions by relying on the contents of the U.N. Charter and other
International human rights documents. The apex court of India has been increasingly
invoking such global laws while deciding cases and that has, eventually created
binding precedent for the Indian judiciary.

References:
1. Basu, Durga Das; 1994: Human Rights and Constitutional Law. Prentice House, New
Delhi.
2. Brownlie, Ian; 1991: Basic Documents on Human Rights; Oxford. University Press,
Oxford.
3. Diwan, Paras and D.P.; 1996: Human Rights and the Law, Deep and Deep
Publications, New Delhi.
4. Khare, Subhachandra; 1977: Human Rights and United Nations, Metropolitan Book
Co. Pvt. New Delhi.
5. Lauterpacht, IT; 1950: International Law and Human Rights, Sevens and Sons Ltd.
London.

Website :
1. www.un.org
2. www.unhchr.ch/udhr/lang/eng.htm
3. www.righttoenvironment.org