The Universal Declaration at Sixty: Is it Still Right for the United States?

Abstract

Many scholars and human rights advocates have hailed the Universal Declaration of Human Rights as a triumph for the human rights movement. The occasion of its sixtieth anniversary in 2008 provides pause to appraise if in fact it has been a success and whether it still is of any value to the United States. To conduct such an appraisal, this article reviewed the contemporaneous records of negotiations leading to the adoption of the Declaration by the UN General Assembly. It also reviewed the decisions of U.S. federal and state courts, the International Court of Justice, and Australian courts that have referred to the Declaration. These data sets reveal a remarkably consistent trend to obfuscate the meaning and legal status of the Declaration. Beneath the rhetoric of universality, the framers of the Declaration each pursued their own foreign policy goals and special interests. To forge consensus among the UN member states, they designed the Declaration as a non-binding document that aspired to become authoritative through education, but which did not instruct decisionmakers on how to determine when provisions hardened into law and what the provisions meant. As a result of the congenital ambiguities of the Declaration, U.S., foreign and international courts have faced difficulty in determining the legal value of the Declaration and its meaning. This has resulted in inconsistent decisions and unjust results both within the United States and on a global scale. Nonetheless, the Declaration has advanced the human rights program in the United States. Rather than jettison it entirely from our jurisprudence, this Article proposes that judges and scholars focus their attentions on the proper interpretation and legal value of the Declaration in international law with a view to achieving greater consistency and just results.