POLICY EXPERT: How relevant is the Universal Declaration of Human Rights in the twenty first century?

We thought we’d go a bit high brow this Monday evening, and have our resident legal and all things serious buff Ben Cartwright (incoming UCLU Amnesty Pres. Hoorah) shares his thoughts on the relevance of the UDHR in the twenty first century…

Introduction

        

DAVID CHEN
A picture of the UN insignia, from the UN headquarters in New York. (Photo credit: David Chen)

 

In 1946, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations (UN), with the aim of avoiding the bloodshed that the world had witnessed twice in a generation. It established thirty integral human rights; from the right to life to the right to hold demonstrations, the UDHR was the first major document to emphasise the universality of human rights and values.

         Since its initial establishment, however, there have occurred human rights violations by nearly every state, casting doubt onto the real purpose of the Declaration nowadays. This adds to arguments that the UDHR is outmoded, lacks universality and completely ignores any idea that rights carry responsibilities, resulting in the assertion that there is no real relevance of the document nowadays; it is merely a piece of post-war symbolism of a disunited planet. This essay will consequently consider the principal arguments in favour and against the UDHR, and conclude that although the Declaration is far from perfect, the world is a much better place with it than without.

Universality

         To begin assessing the relevance of the UDHR, one must consider the extent to which it is ‘Universal’ document. Whilst the Declaration espouses itself to “all members of the human family”, it cannot be said that every one of the seven billion people on the planet enjoys all thirty rights. Many critics argue that it would simply be too expensive for governments to implement all rights. As Brian Lilley suggests, implementing all rights “would take us well past looking after the weakest in society”. Similarly, an overt focus on human rights would deter governments from focusing on their responsibilities to defence and social security, given that these do not qualify as ‘Universal’ human rights. There is therefore the suggestion that rights, such as those “to periodic holidays with pay”, actually weaken what would otherwise be a realistic document for the future of humanity. The targets for states as written in the document are simply too aspirational to be realistic, and the suggestion that simply by being human, one deserves the same rights as anyone else can be deemed as ridiculous, which therefore “makes the document less effective”.

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The harsh juxtaposition of the reality and the extent of UDHR adherence on World Human Rights day. (Photo credit: Minustah Photography)

One needs to consider why all humans should be considered equal; surely a convicted murderer, for example, doesn’t deserve the same rights as everyone else in society, particularly after taking a life. This leads to a further consideration: the UDHR makes no explicit mention of animal rights, but surely if humans are treated with “inherent dignity”then animals should be treated accordingly. In spite of this, there remains no comprehensive ‘Universal Declaration of Animal Rights’. A further issue with the UDHR is that whilst it espouses civil and political equality and the avoiding of discrimination, the language used in the Declaration is “ironically ‘discriminatory’ using a male terminology instead of gender free language” – the Declaration frequently makes reference to “his” country, “his” property and the like, never “her”. In the supposedly egalitarian society of the twenty-first century, this style of dictum reduces the universality of the UDHR, making it appear something inherently rooted in the past. Charlesworth furthers this, suggesting that the international human rights regime is inadequate, since it has been developed in a gendered way and “largely excludes women’s perspectives”. Whilst Eleanor Roosevelt played a significant role in the drafting of the document, its male-focused agenda is somewhat obvious. This was not the intention of the drafters; it was merely a product of the society in which it was formed, one different to the twenty first century society.

 

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The Late Nelson Mandela, South African apartheid activist and Prime Minister of South Africa (Photo Credit: LeStudio1)

 

         A number of schools of thought have professed that perhaps humans do not actually deserve the UDHR; it provides human beings with a sense of entitlement that may, particularly when taking into account the substantial majority previously referred to, not even deserve. In countries that practice the death penalty, this argument is clear: after taking somebody else’s life, an individual no longer retains their right to life. A similar argument to this, however, was used in South Africa to achieve the incarceration of Nelson Mandela. It was suggested that given his plotting against the state, he no longer deserved the right to liberty (Article 2). He was subsequently jailed. This is therefore where arguments against universal human rights confront moral dilemmas. Arguments in favour of South Africa’s apartheid regime were met with discord from those who championed human rights; Mandela was simply using freedom of speech in his criticisms of the government. Following his release, he claimed that his only “beacon of hope” whilst in prison was the Universal Declaration of Human Rights. In many cases of oppression around the world it is only through knowledge of the UDHR and the hope that it gives that ensures continual survival of vulnerable individuals and communities, since the UDHR is one of only a handful of documents that ensure a universal entitlement to human rights. Other such documents include the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESC) (both 1966), which built upon the precedent of the UDHR25 and enshrined much of it into international law.

 

         In addition to its moral power, the Declaration enjoys universal recognition. To maintain the UDHR’s international influence and increase awareness of human rights, there is an annual Human Rights Day celebrated on December 10. As a document it is increasingly translated into new languages; it is now the most translated document worldwide. This has significantly increased the outreach of the Declaration, facilitating the efforts of organisations such as Amnesty International and the UN itself to make the bulk of the thirty articles more prominent in international society. For instance, the ideals of the UDHR are referenced to in the UN millennium development goals, which have, for instance, halved the amount of children without a primary education since 1999, showing success in implementation of Article 26 of the Declaration. Despite a study by the Rex Foundation finding that only 6% of the population of the United States are aware of their rights, study of the document is in the curriculum of many national education systems, and as a result, awareness is growing, albeit gradually. The study has also suggested that “knowledge” of the articles of the UDHR results in “positive civic engagement and personal involvement in furthering these rights for all people”, and even improved mental health Consequently, one can infer that the declaration has contributed significantly to modern community life and the values by which communities live.

 

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Displaced refugees, building a fire from burnt clothes. This is the reality affecting millions across continents.

 

         A further claim to suggest that the UDHR is not actually ‘universal’, however, is the that it is merely an uneasy compromise between capitalism, imperialism and state socialism, founded in the tumultuous period between the Second World War and the Cold War. At this time the world was divided according to ideology, and whole swathes of colonised land, particularly in Africa and Asia, had very little contribution in the composition of the Declaration. It was assumed that their colonial masters would represent them. As well as the lack of representation of much of the developing world, the universality of the Declaration may have been critically limited by the fact that upon drafting, there were initial abstentions from Saudi Arabia, South Africa, the USSR and a number of Eastern Bloc countries. Despite this, one must not simply assume that entire nations are unrepresented by the thirty articles of the document. Returning to the case of Mandela and his “beacon of hope”, one can infer that the UDHR is still relevant even in a country that did not initially ratify it. It recognises the value of human life, which is something that every human has in common, irrespective of other differences.

 

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The Bondo tribe of Sierra Leone. A community which for decades has practised FGM, although some within the tribe no longer practice such rituals and other forms of initiations into womanhood now take place.  (Photo credit: Esther Havens)

 

         Certainly, the broad values of the UDHR may make it too impersonal as some have argued, and it is more than likely that local and regional differences have been ignored. But this is due to the fact that had the drafters taken every local difference into account, there would either be an incredibly lengthy document with too many articles referring to individual issues or no document at all given the unwillingness to compromise. What the Universal Declaration has done is inspired countless constitutions and local laws; it has a significant influence in maintaining international unity and yet still allows self-determination of individual societies. Most commentators agree that the UDHR is a fundamental founding document in international law, allowing the progression of more specific laws that have relevance to specific societies rather than humanity as a whole. The European Convention on Human Rights and the UK Human Rights Act 1999, both reaffirm the UDHR’s ideals, but ensure their practicality at a local level. In the preamble of the former, for instance, it specifically recognises the UDHR as a guiding influence in the drafting of the document.

Accountability

         In addition to the universality of the UDHR, one must consider the extent to which it has been responsible for improving the condition of human rights. Since 1946, countless human rights violations have occurred, committed by all manner of governments, organisations and individuals. With an increasingly violent situation in the Middle East and questionable activities of certain states, the need for a remedy to human rights violations seems as critical in the twenty first century as ever.

 

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Yezidi refugee man, displaced from Sinjar living in the Lalesh Temple, Kurdistan, Iraq. He is one of the 20,000 Yezidis displaced since the 3rd August 2014. (Photo Credit: Eric Laffrogue)

 

 

         The UDHR presents a potential flaw in dealing with human rights abuses in that it is not an enforceable document; it is merely a set of guidelines of what a utopian lifestyle may include. The only effective methods in stopping human rights abuses therefore include the use of subsequent documents to the UDHR, such as the ECHR or the 1966 Covenants referred to previously, or to apply diplomatic pressure on UN member states in the General Assembly with the hope for sanctions to be placed upon them. Whilst both of these methods have been successful in the past, such as through the application of the ECHR and through sanctions towards South Africa which influenced its desegregation, a more effective method in dealing with violations would be to enshrine the UDHR itself into the status of international law. The treaties which followed the UDHR ensure that certain issues that may otherwise be ignored by the international community are brought to attention and can be addressed by member states of the UN as they see fit, but surely there would be increased accountability to the declaration itself if it was a valid document in international human rights law.

         A further issue found outside of the abilities of the UDHR is the fact that human rights abuses in the twenty first century are rarely committed by governments but rather by corporations or quasi-governments such as Daesh in Syria and Iraq. These are not accountable to the UN and thus cannot be held to account or ‘shamed’ by the UDHR. A company that refuses to hire unionised labour is not liable to be penalised by the international community on the basis of the UDHR, as it has not ratified the Declaration. The document specifically states that it is principally the “Member States” of the UN that must ensure its articles are met; there is no burden placed on anyone else to ensure the respect of human rights.

 

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Activism and protest erupts on the street, on the day of World Human Rights (Photo Credit: Kushminar Photography)

 

         One can argue that even governments fail to respect the UDHR, calling into doubt its efficacy, given that blatant violations have occurred in nearly every nation in recent history. The United States, supposedly the primary champion of international human rights, has proceeded to torture prisoners of war in Iraq and been criticised for the unlawful detainment of prisoners in Guantánamo Bay “America’s recourse to torture” in Iraq, argues Posner, “was a significant challenge to the international human rights regime” and therefore weakened the integrity of the Declaration. Additionally, major international powers including Russia and China have increasingly dubious human rights reputations, with racism rife in the former, whilst the latter has a record for working “behind the scenes to weaken international human rights institutions and [has] publicly rejected international criticism of the political repression of its citizens”, Posner asserts. Governments often deem that violating human rights is a more cost-effective method than obedience to the UDHR, hence why it is violated by states. In the case of torture, the speed of extracting a confession may result in swifter, therefore cheaper, military operations, in spite of the human rights violation. Consequently, what makes implementation of the UDHR more challenging is that all three aforementioned powers, who exert extensive diplomatic strength, sit permanently on the UN Security Council, retaining their right to veto anything that they deem is not in their national interests. Given the divergent ‘national interests’ of the three countries, this often results in sluggish progress of resolutions made by the Council, thereby losing their efficacy. Highlighting this, Klug references how many governments deal with human rights “like a ball of wool”; they do not regard the UDHR in high esteem. Further, it is increasingly common, as Hopgood shows, that countries prioritise “export markets” over being “a fair-weather friend for human rights”. There are unlikely to be investigations into human rights abuses by the exporter if profits are at stake. Surely, if some of the most powerful countries in the world ignore a Declaration to which they themselves contributed, then it is now defunct and needs a modern replacement, taking into account the priorities of states.

 

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There has been an ongoing dispute in the UK as to whether Government cuts to services provided under the NHS constitute a human rights violation, as these services often provide subsidised or free healthcare and access to that which many could not afford otherwise.

 

In spite of these drawbacks, the UDHR remains relevant in that it at least attempts to ensure accountability for violations of its clauses by states. The ultimate result may not be international sanctions imposed against a country, but it is without doubt that the significant moral power of the Declaration influences governments4; it is a reasonable assertion that very few states would actively violate the document intentionally. Using this argument, the UDHR remains a definitive set of moral guidelines for governments, encouraging but not forcing them to adhere. Had the UDHR been enforceable it is likely that it would be more effective in dealing with violations, but it would also have fewer signatories, particularly if governments were obliged to adhere to all thirty articles. Most governments have signed the Declaration because of its universal values, however some, perhaps including the state of North Korea, which systematically abuses the rights of its citizens, have arguably only done so given it being a condition for access to the United Nations. Making the UDHR enforceable would consequently result in a diminished UN, and divided humanity.

         One must not discount the fact that the world in the twenty first century is much safer than it was in 1946; there has not been a nuclear attack or a genocide on the scale of the Nazis’ towards the European Jewry since 1945. Whilst it is true that there have been major violations, such as in the ethnic genocide in Rwanda in 1994, these have been comparatively limited in their geographical spread, unlike the Holocaust, which spanned Europe. The modern world is much safer and less volatile than that of the 1940s; this security can be attributed to states’ mutual respect for universal human rights and a sense of accountability towards their citizens as a result of the Universal Declaration.

No5

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 ‘North Korea is the most militarised nation in the world. IN 2008, the US State Department estimated that North Korea had the 4th largest military in the world with an estimated 1.2 million armed personnel for 23 million North Koreans’ (Photo Credit and Caption:  Eric Lafforgue)

 

Modernity

         There remains doubt over the relevance of the UDHR in the modern era; it was drafted in a time of colonisation and thus suffers from a “birth defect” in that it excluded so much of humanity even at the drafting stages. Constantinides argues that since African participation in the drafting of the UDHR was “minimal”, it has offered an unbalanced world view: “if more African states had been present, they would have influenced the drafting…in a different direction.” One can hardly ignore that a world with perpetual crisis on the African continent, in Libya, Sudan and Somalia for example, would have been better prepared had Africa had more influence on the Declaration. Additionally, the UDHR does not present any methods for the implementation of its articles. Consequently, many underrepresented states such as many of those in Africa and Asia, not only have to contend with a culturally distant Universal Declaration, but also have to interpret how to implement the rights with the least social damage. One cannot even assume the drafters’ vision of mankind; the UDHR is too vague and is too wide ranging to have specific objectives. Commentators such as Will Self have furthered this argument, stressing that the Universal Declaration “is surely only stating a fact that all of us intuitively know – no single [individual]…can be held to be of greater value than any of the others”, suggesting that the UDHR contributes nothing new and is therefore irrelevant.

 

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Robert Mugabe has been the President of Zimbabwe since the mid 1980s. Under his presidency there has been the expulsion of white Zimbabweans and continued accusations of election tampering.

 

         There is no doubt that much of the world has changed in its outlook since the 1940s. This era was one of a “collectivist, welfarist consensus”, Fraser asserts, and thus the UDHR had a corresponding attitude to common humanity and ‘top down’ administering of rights. Whilst these values are by no means defunct, in the globalised, capitalised society that defines the twenty-first century, the kind of outlook espoused by the UDHR appears somewhat naïve and culturally backward. In a world threatened by international terrorism, it seems logical that maintaining good relations between countries and measures to limit terrorist activities are prioritised by governments, in order to protect individuals. This would ensure greater protection for one’s right to life, arguably the most important right, but in doing so, may result in the deterioration of other rights, such as the freedom of association, given the potential dangers to national security this may entail. The UDHR is therefore limited in this respect, as it gives all rights equal importance, when, in reality, the right to life is surely the most important.

 

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African woman protesting against the tenure of the Mugabe Presidency (Photo credit: Sebastian Kaczorowski)

 

         Consequently, one can infer that a way to bring about an improvement in the quality of life is through the violation of human rights. It can hardly be considered as the only method of improving the quality of life internationally, but by adopting a utilitarian approach to human suffering, one can argue that allowing a small number of individuals to suffer would benefit the majority of a population. The issue with this is that it is the viewpoint taken by individuals such as Hitler, whose Holocaust is considered a vital catalyst for the formation of the UDHR itself. One cannot permit the state to have an ability to abuse the human rights of any of its citizens since it would be contradicting the very purpose of the Declaration: to protect individuals from state oppression. The UDHR remains “the only riposte to the notion…that the state…[has] unlimited powers”; and is therefore in a unique position to persuade governments to respect the rights and freedoms of their citizens. Whilst it may not ensure legal accountability of states, it certainly ensures diplomatic accountability with the threat of sanctions, such as through the aforementioned boycotts against South Africa for its apartheid regime.

         In spite of the above arguments suggesting that the Declaration has a diminished place in the modern world, there remain assertions that its enshrined values have not been lost, but indeed strengthened. In the era of globalisation, the presence of a document that asserts complete equality of humankind and ensures common respect that may otherwise be shirked by governments is more important than ever. Guarantees of freedom facilitate an expanding international community; without the freedoms to participate in the community and to migrate, the globalised world would become increasingly fractured11. Its values ensure that, at least in theory, the poorest ninety per cent and are entitled to the same respect as the richest ten per cent. Without the UDHR, the flaws of humankind, such as greed and selfishness, would become increasingly prominent and would likely result in the eschewing of the most vulnerable members of society.

Responsibility

         It is argued that a significant deficiency of the UDHR is the fact that whilst it enshrines thirty unequivocal rights onto every person, nowhere in the document is there reference to any responsibility of individuals to maintain the rights of others. The Declaration is directed towards states, thus suggesting that the burden of ensuring human rights falls onto them, rather than people themselves. A potential consequence of this is the exploitation of individuals by companies, with the defence that they are under no obligation to do anything to improve the standard of human rights themselves; the obligation falls on the state. As a result, there develops a culture of individualism; commentators such as Sunstein have asserted that an incessant focus on rights lead to “selfish, isolated individuals who assert what is theirs, rather than participating in communal life”. Constantinides has furthered this, arguing that “overemphasis on rights” results in a lack of consideration to one’s obligations, which in itself “reflects a liberal individualism prevalent in the West.” Consequently, this further isolates those in societies that emphasise that rights can be achieved only after duties are fulfilled. The fact that many of the societies which prioritise responsibility are in Africa and Asia only serves to further their distance from the values enshrined in the UDHR. Self, for example, has drawn attention to the Qur’an, the holy book for over one billion people internationally, which “concentrates rather more on duties than rights”, thus isolating a significant proportion of Muslims from the UDHR. It is perhaps the lack of adherence to human rights and a focus on duties that has made groups such as Daesh so powerful; their only concern is doing their duty to Allah (although this is contested by most Muslims) and as a result they overlook the rights of the UDHR. After all, much of the Middle East was not consulted at the drafting stages and so could have no influence over the contents of the UDHR. Had they done so, there may have been more of a focus on duty.

 

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Displaced Syrians living in refugee camp, after being driven from their homes by the Daesh (Photo Credit: Christina Del Campo)

 

         Without logical framework of responsibility in the UDHR there remains no realistic method with which to achieve complete adherence to the rights of the Declaration. Distinct responsibilities would guide governments, but the lack of these means that achieving universality for all thirty rights is almost impossible. There remains too much to achieve. Moreover, the fact that the UDHR cannot be enforced means that governments are under no obligation to attain any further human rights for their citizens, even if there were duties in the Declaration. Individuals and governments rarely act unless compelled to do so, so without obligation the UDHR can be ignored.

         Despite this, others argue that making reference to duties in the UDHR is unnecessary. Commentators such as Grayling have asserted that the drafters of the Declaration “did not feel it necessary to labour the obvious point that rights carry responsibilities”, and that “not every right has a correlative duty”. For instance, whilst few would deny comprehensive rights to infants, it would make no sense to ensure their duties, given their obvious incapability of actually fulfilling them. If rights did carry explicit duties, then the one to ensure someone else’s “right to life” would surely be not to kill them. The issue here is that the right to life means more than merely life itself: there are also the rights to liberty and security of person, so it becomes harder to assert a correlative obligation. Searle has taken this lack of explicit duties to suggest that for every right, there is a universal obligation, but they do not necessarily need to be the opposite to their corresponding rights. The drafters of the UDHR were primarily concerned about rights, rather than their duties.

 

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Children are often the main victims of child labour, though the story of the child in this photographer may be happy… many others cannot say the same

 

 

Place in Society

 

         From an international perspective it is obvious that the UDHR has impressive moral power; it was never actually intended to be enforceable, but to guide states into acting in the best interests of their citizens34. The fact remains that the Declaration has significant similarities with the UN Charter and is a founding document of international law. Further, the fact that the UDHR has been adopted by subsequent documentation demonstrates its efficacy, and its values have now attained legal status, although not through the UDHR itself. Groups such as Amnesty have turned the rhetoric of human rights into decisive action, evidenced through their international campaigns to ensure state accountability, such as those regarding the arms trade and violence against women. Iqbal argues that local treaties have limited the UDHR, as they divide humanity into different cultures, but in reality they merely make its broad values appropriate for local societies. Without such local treaties, implementation of the UDHR would be significantly more difficult. For example, the ECHR and Human Rights Act ensure governmental accountability to the courts.

 

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It is often attested that those who are aware of their fundamental human rights are most likely to protest and hold governments accountable through active demonstration or court cases when they see government’s in breach of such rights

 

         There are very few documents to which all UN member states are signatories; the UDHR is in the unique position of being one. Given the fact that the Declaration does not focus on individual issues, its values can remain broad, transcending time and becoming eternally relevant. Despite lacking Asian representation in the drafting of the UDHR, Fernando has noted that the declaration “declares quite akin to the treasured ‘Asian value’” of the family being “the natural and fundamental unit of society”, thus there is by no means complete isolation of the continent. At Vienna in 1993, the “universal nature” of the UDHR was affirmed by member states of the UN worldwide, many of whom had not been drafters of the original document, hence demonstrating the international support for the current status of “Universal” human rights.

 

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Protesting has become an established practice amongst nations and individuals aware of their rights and its reach has been international and remains to be a growing force across all of the developing world.

 

         Fuller acknowledges a further success of the UDHR in it being the first major document to combine the civil rights of individuals to the concepts of universality and equality under God. The former was usually found in constitutions of republics such as the USA, through which the state’s citizens were entitled to its rights. Contrastingly, the latter are prominent in religion, suggesting that all humans should be treated with respect and dignity, simply for the virtue of being human. Despite what some say, it cannot be doubted that this combination is any less relevant in a secular society than in a religious society; the two respective concepts have transcended ordinary civil rights and religion, to become universally relevant irrespective of nationality or beliefs.

Conclusion

 

         Considering all of this, one can identify a number of significant issues regarding the UDHR that have not been resolved since its initial formation. These include problems with the document itself, including the seeming sexist attitudes it instils as well as the question of whether or not universal rights are actually a positive thing. Only a limited cohort of nations collaborated in the drafting of the document, resulting in the apparent exclusion of much of humanity. Combining these with modern day problems, such as the fact that most human rights violations are no longer committed by states, and the increasingly globalised world with an international economy, it appears that the UDHR has far from fulfilled its purpose. But that is understandable.

 

         Whilst it is true that the threats to human rights have changed since the mid-twentieth century, the volume of them has been significantly reduced by the UDHR, which continues to inspire people, legislation and organisations. Further, the variety of legislation, be it international or local, that has been inspired by the UDHR is more relevant than anything else. Whilst these appear to have partitioned the world according to international borders, they are united in their mutual respect of the “inherent dignity… of all members of the human family”. A world without the UDHR would provide governments with too much freedom and a reduced sense of accountability to the international community, allowing them to do as they please.

         Ultimately the Universal Declaration of Human Rights is unlikely to bring about the desired changes in social outlook; in the modern world, it is the economy and globalisation that drive social change. However, at least the presence of the UDHR is able to ensure that changes that do occur to the world are for the good of humanity. Issues that arise regarding the Declaration are more often than not the faults of those trying to implement it; it would not be accurate to suggest that the UDHR is perfect, but it is the closest thing that humanity has produced that best represents our common values and realises our inherent flaws.

 

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