The Pros And Cons Of Universal Declaration Of Human Rights

Demetrio Zema said “Human Rights have no boundaries. They are an integral part of today’s society”. The human rights (“HRs”) had gone a long way to become an established code of practice in many nations across the globe. Various international bodies worked to protect HRs and accordingly, covenants and charters were created, discussed, argued, signed, offered for referendums, and ratified by many states. Those covenants and charters came under various names such as Universal Declaration of Human Rights, Arab Charter on Human Rights, European Convention on Human Rights, to name just a few. HRs had been written and included in many states constitutions (old and new) to give it a constitutional order and authority. The main reasons behind writing
the HRs were to protect the citizen from the powers of the government which we will call the vertical application of HRs. The horizontal application of HRs is when the HRs has to be applied between private parties.

In the discussion that will follow, I will list the requested information by the assignment for each case and then give an analysis of each case and the possible horizontal application of HRs. The article will be used as a reference on a horizontal application of HRs by discussing the background leading to its application using the court jurisprudence.

Rhodes v OPO

In the UK case of Rhodes v OPO, the Supreme Court has ruled out that freedom of expression especially when it comes to telling the truth is a protected right.
The fact situation of this case is about Mr. J. Rhodes, a musician (and a father of a son from former marriage) who wrote and wanted to publish a book titled “Instrumental” on how he was sexually abused when he was a child, and ever since had been tormented mentally as an adult until he found his salvation in hearing, learning and playing music. His ex-wife in the name of the son, brought a procedure against the father (and the publishers) to stop publishing the book in its present format, on the basis that such publication will cause a psychological harm to the 11 years old son.

The first court (High Court) dismissed the application for the interim injunction, and the ex-wife appealed the decision to the Court of Appeal which reversed the first court decision on the basis of tort similarly to a case of Wilkinson v Downton and granted the interim injunction to stop the book publishing in its presented format. Mr. Rhodes appealed to Supreme Court, which allowed the appeal and lifted the injunction and permitted the publication of the book as it was presented by the
author.

The way court phrased the issues
The main issues the Supreme Court had to deal with were two principal interlocking issues: the correct scope of the tort of intentionally causing psychological harm and the role of freedom of expression in justifying acts which may cause harm.

The reasoning of the court
The Supreme Court press summary describes in competent format with brief depth -suitable for this assignment’s word count- the reasoning of the court’s decision.
“Lady Hale and Lord Toulson who considered the domestic case law [31-67] and other common law authorities [68-71] in relation to the tort in Wilkinson v Downton. It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element. Only (1) and (2) are issues in this case [73].

The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant [74]. In this case, there is every justification for the publication. The Father has the right to tell the world about his story. The law places a very high value on freedom of speech. The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person. It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton
[75-77].

In addition, the injunction – prohibiting graphic language – was wrong in principle and in form; it is insufficiently clear what “graphic” means and, in any event, a right to convey information to the public includes a right to choose the language in which it is expressed in order to convey the information most effectively [78-79].

The required mental element is an intention to cause physical harm or severe mental or emotional distress. Recklessness is not enough [87]. In this case, there is no evidence that the Father intends to cause psychiatric harm or severe mental or emotional distress to his Son [89], and there is no justification for imputing an intention to cause harm on the basis of harm being foreseeable. Intention is a matter of fact. It may be inferred in an appropriate case from the evidence, but is not to be imputed as a matter of law [81-82].

There is no real prospect of establishing either the conduct element or the mental element of the tort [90].

Lord Neuberger allows the appeal for the same reasons. It would be an inappropriate restriction on freedom of expression to restrain publication of a book simply because another, to whom the book is not directed, might suffer psychological harm from reading it [97]. He adds some further remarks as to the scope of the tort in Wilkinson v Downton [101-121].”