The Universal Declaration of Human Rights as a Hard Law Instrument

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The Universal Declaration of Human Rights is the first global human rights treaty that was formulated. The main driving force behind the formation of the Universal Declaration of Human Rights was the Second World War, which in it course saw some of the worst human atrocities being committed on a global scale. The Declaration was adopted by the United Nations General Assembly on the 10th of December 1948.

The term "soft law" refers to legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law. These are generally, instruments that are not treaties that oblige the stakeholders to follow them, but they have within them ‘norms’ that are believed to b good and therefore need universal application.

The Universal Declaration of Human Rights is also officially termed as a soft law since it was passed by the UN General Assembly as a Declaration and within itself has not given any means where the stakeholders are legally bound to abide by the articles or to enforce them. The preamble of the declaration says that the UDHR is “a common standard of achievement for all peoples and all nations” and the nations must themselves strive to achieve this standard.

While not a treaty itself, the Declaration was openly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter.  For this reason, the Universal Declaration can be termed as a fundamental constitutive document of the United Nations. Since the UN charter is binding on all member states (according to Section 1, Article 4 in Chapter 2 of the UN charter), most people argue that the Universal Declaration of Human Rights although a soft law, by proxy has a legal binding effect on the nations.

Historically, there are two main sources of international law: treaties and customary law. There have been arguments that soft law has become a third source of international law that has rapidly developed in recent decades, especially to deal with sensitive matters such as human rights and the protection of the environment. It is believed that soft law avoids the immediate and rigid commitments made under treaties and at the same time it is also considered to be a potentially faster route to legal commitments than the slow pace of customary international law.

It has been argued that the Declaration has already formed parts of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. This can be also seen in when the 1968 United Nations International Conference on Human Rights advised that the Universal Declaration of Human Rights “constitutes an obligation for the members of the international community" to all persons.

The Universal Declaration of Human Rights has served as the foundation for two binding UN human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The two covenants along with the UDHR form the International Bill of Human Rights. The ICCPR and the ICESCR are two legally binding documents that have been signed and ratified by most of the countries in the world. These two covenants in themselves enforce most of the human rights given in the UDHR.

In addition the principles of the Declaration are elaborated in international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of Discrimination Against Women (CEDAW), the United Nations Convention on the Rights of the Child, the United Nations Convention Against Torture and many more. All these conventions are also legally binding on the member parties and the vast number of covenants has essentially covered all the aspects of the UDHR, thus making the...
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