B.

A POLITICAL SCIENCE

PAPER PSO.08.4 (SIXTH SEMESTER)

HUMAN RIGHTS

Mr Imti Lemtur

Assistant Lecturer

Loyola College, Williamnagar

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 PREFACE
The title of this work is “Human Rights”, which is prepared in accordance to the
latest syllabus of the North Eastern Hills University (NEHU) for 3 rd BA political science
Honors. It is presented in a manner so as to fulfill the student’s need and for the teachers to
guide and enhance the core content of the subject matter. It is strictly prepared only for
NEHU students however one can use this study material for any other academic purposes.

It will be an absolute blunder, if the author claimed to have prepared this work
without referring, consulting and making use of other existing works and literature.
Therefore, readers are requested to dissent any information and constructively produce
their criticism in order to improve and improvise this work.

Human Rights are such a subject matter which has a long history of evolution and
development. It is still a burning issue in many parts of the world because it remains only in
the paper and not in spirit. By studying a Paper on “Human Rights” students can benefit
largely in the field of Legal profession and legislation.

Nonetheless, it is my humble request to all the readers to make use of this work in
helping oneself. I am thankful to my beloved wife, Mrs Benobitha M Sangma HOD English,
Loyola College, who helped me in reviewing my work. I also extend my gratitude to my
Principal, Dr Fr. Sunny Augustine SJ, who guided me with his immense knowledge and
wisdom throughout my journey in this work.

Author

Mr Imti Lemtur

HOD Political science

Loyola College

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 HUMAN RIGHTS
(SYLLABUS)
UNIT 1: CONCEPT AND SCOPE OF HUMAN RIGHTS, UNIVERSAL DECLARATION AND COVENANTS OF
HUMAN RIGHTS

1.1. Concept of human rights; Meaning and definition

1.2. Scope of human rights; Categories and Dimension

1.3. Universal Declaration of human rights; Preamble, Provision and historical

background; Adoption, significance and legal effects

1.4. Covenant of human rights; International Covenant on Civil and Political rights
(ICCPR), Participation of the States, Reservation to the ICCPR, The obligations created
by the Covenant, Access to the Judicial System, human rights Committee and the
implementation of ICCPR, International Covenant on Economic, Social and Cultural
Rights (ICESCR), Principle of progressive realization, Labor rights, Right to social
security, Right to family life, Right to an adequate standard of living, Right to health,
Right to free education, Right to participation in cultural life, Optional protocols,
Conclusion

UNIT 2: COLLECTIVE , INDIVIDUAL AND GROUP R IGHTS: RIGHTS OF WOMEN, CHILDREN AND
MINORITIES

2.1. Collective rights of Women; The Commission on the Status of Women, The
Declaration on the Elimination of Discrimination against Women, International
Women’s year 1975, World Conferences on women’s rights

2.2. Group and individual rights of women

2.3. Rights of Children; Collective, individual and group rights of Children – The 1959
Declaration on the Rights of Child, The Convention on the Rights of Child, The
Committee on the Right of the Child, Optional protocol to the Convention on the
rights of the child on the involvement of children in armed conflicts, Optional
protocol to the convention on the Rights of the child on the sale of children, child
prostitution and child pornography, World Summit for Children, The 1990 world
declaration on the survival, protection and the Development of Children, The plan
action for implementing the world Declaration on the survival, protection and
development of children in the 1990

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 2.4. Rights of Minorities; Collective, individual and group rights of minorities – The
1992Declaration on the Rights of persons belonging to National or Ethnic, Religion
and Linguistic Minorities, National policies and programme, Conclusion

UNIT 3: EXPLOITATION: ECONOMIC , POLITICAL AND SOCIAL : HUMAN RIGHTS AND EQUALITY

3.1. Meaning of Exploitation

3.2. Economic exploitation; World Food Conference, Food and Agriculture

Organization (FAO) and eradication of hunger, World Food Day, World Food
Programme (WFP), Beijing Declaration of the World Food Council

3.3. Social and Political exploitation

3.4. Human rights and Equality; Concept of equality in the context of human rights,
Relationship between equality and human rights, Origin and development, Powers
and functions, Conclusion

UNIT 4: HUMAN R IGHTS AND ENVIRONMENT

4.1. Introduction

4.2. The resolution 16/11

4.3. Environmental degradation and human rights

4.4. The United Nations Conference on Environment and Development (UNCED)

4.5. The World Summit on Sustainable Development (WSSD)

4.6. The mandate of the Special Rapporteur on the Adverse Effects of the Illicit
Movement and Dumping of Toxic Waste

4.7. International Labour Organization 169 for Indigenous and Tribal Peoples
Convention, Conclusion

UNIT 5: PROMOTION AND PROTECTION OF HUMAN RIGHTS AT THE INTERVAL ON INDIA

5.1. Human rights in Pre-independence India, The Constitution of India Bill, 1895

5.2. Human in Post-Independence India, National Human Rights Commission, The

Protection of Human Rights Act, 1993, Functions and powers of the National Human
Rights Commissions, State Human Rights Commission, Human Rights Courts,
Conclusion

UNIT 6: HUMAN R IGHTS IN THE ERA OF GLOBALIZATION AND ECONOMIC LIBERALIZATION

6.1. Meaning of Globalization

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6.2. Protection of human rights in a globalize world, Emphasizing state responsibility
for the actions of non-state actors

6.3. The Framework of International Human Rights Law

6.4. Impact of Globalization and Human Rights

6.5. Human rights and Economic liberalization, Liberalization of services in the

developing world, Potential risks of trade liberalization,

6.6. Human Rights and Economic liberalization

6.8. The General Agreement on Trade in Service

6.9. Relevant norms and standards of human rights law

QUESTION BANK
&
MODEL ANSWERS

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 UNIT 1: CONCEPT AND SCOPE OF HUMAN RIGHTS, UNIVERSAL DECLARATION AND
COVENANTS OF HUMAN RIGHTS

1.1 Concept of Human Rights

Human rights are rights inherent to all human beings, whatever our nationality, place of
residence, sex, national or ethnic origin, color, religion, language, or any other status. We
are all equally entitled to our human rights without discrimination. These rights are all
interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties,
customary international law, general principles and other sources of international law.
International human rights law lays down obligations of Governments to act in certain ways
or to refrain from certain acts, in order to promote and protect human rights and
fundamental freedoms of individuals or groups.

The principle of universality of human rights is the cornerstone of international human

rights law. This principle, as first emphasized in the Universal Declaration on Human Rights
in 1948, has been reiterated in numerous international human rights conventions,
declarations, and resolutions.

The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty
of States to promote and protect all human rights and fundamental freedoms, regardless of
their political, economic and cultural systems.

All States have ratified at least one, and 80% of States have ratified four or more, of the core
human rights treaties, reflecting consent of States which creates legal obligations for them
and giving concrete expression to universality.

Some fundamental human rights norms enjoy universal protection by customary

international law across all boundaries and civilizations. Human rights are inalienable. They
should not be taken away, except in specific situations and according to due process.

For example, the right to liberty may be restricted if a person is found guilty of a crime by a
court of law.

All human rights are indivisible, whether they are civil and political rights, such as the right
to life, equality before the law and freedom of expression; economic, social and cultural
rights, such as the rights to work, social security and education, or collective rights, such as
the rights to development and self-determination, are indivisible, interrelated and
interdependent.

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The improvement of one right facilitates advancement of the others. Likewise, the
deprivation of one right adversely affects the others. Non-discrimination is a cross-cutting
principle in international human rights law.

The principle is present in all the major human rights treaties and provides the central
theme of some of international human rights conventions such as the International
Convention on the Elimination of All Forms of Racial Discrimination and the Convention on
the Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it
prohibits discrimination on the basis of a list of non-exhaustive categories such as sex, race,
and color. The principle of non-discrimination is complemented by the principle of equality,
as stated in Article 1 of the Universal Declaration of Human Rights; “All human beings are
born free and equal in dignity and rights”.

Human rights entail both rights and obligations. States assume obligations and duties under
international law to respect, to protect and to fulfill human rights. The obligation to respect
means that States must refrain from interfering with or curtailing the enjoyment of human
rights. The obligation to protect requires States to protect individuals and groups against
human rights abuses.

The obligation to fulfill means that States must take positive action to facilitate the
enjoyment of basic human rights. At the individual level, while we are entitled our human
rights, we should also respect the human rights of others.

Meaning of Human Rights

The origins of human rights may be found both in Greek philosophy and the various world
religions. In the Age of Enlightenment (18th century) the concept of human rights emerged
as an explicit category. Man and woman came to be seen as an autonomous individual,
endowed by nature with certain inalienable rights that could be invoked against a
government and should be safeguarded by it.

Human rights were henceforth seen as elementary preconditions for an existence worthy of
human dignity. Before this period, several charters codifying rights and freedoms had been
drawn up constituting important steps towards the idea of human rights.

During the 6th Century, the Achaemenid Persian Empire of ancient Iran established
unprecedented principles of human rights. Cyrus the Great (576 or 590 BC - 530 BC) issued
the Cyrus cylinder which declared that citizens of the empire would be allowed to practice
their religious beliefs freely and also abolished slavery.

The next generation of human rights documents were the Magna Charta Libertatum of
1215, the Golden Bull of Hungary (1222), the Danish Erik Klipping’s Håndfaestning of 1282,

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the Joyeuse Entrée of 1356 in Brabant (Brussels), the Union of Utrecht of 1579 (The
Netherlands) and the English Bill of Rights of 1689.

These documents specified rights which could be claimed in the light of particular
circumstances (e.g., threats to the freedom of religion), but they did not yet contain an all-
embracing philosophical concept of individual liberty. Freedoms were often seen as rights
conferred upon individuals or groups by virtue of their rank or status.

In the centuries after the middle Ages, the concept of liberty became gradually separated
from status and came to be seen not as a privilege but as a right of all human beings.
Spanish theologists and jurists played a prominent role in this context.

Among the former, the work of Francisco de Vitoria (1486-1546) and Bartolomé de las Casas
(1474-1566) should be highlighted. These two men laid the (doctrinal) foundation for the
recognition of freedom and dignity of all humans by defending the personal rights of the
indigenous peoples inhabiting the territories colonized by the Spanish Crown.

The Enlightenment was decisive in the development of human rights concepts. The ideas of
Hugo Grotius (1583-1645), one of the fathers of modern international law, of Samuel von
Pufendorf (1632-1694), and of John Locke (1632-1704) attracted much interest in Europe in
the 18th century. Locke, for instance, developed a comprehensive concept of natural rights;
his list of rights consisting of life, liberty and property.

Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign
derived his powers and the citizens their rights from a social contract. The term human
rights appeared for the first time in the French Déclaration des Droits de l’Homme et du
Citoyen (1789).

The people of the British colonies in North America took the human rights theories to heart.
The American Declaration of Independence of 4th July 1776 was based on the assumption
that all human beings are equal. It also referred to certain inalienable rights, such as the
right to life, liberty and the pursuit of happiness. These ideas were also reflected in the Bill
of Rights which was promulgated by the state of Virginia in the same year.

The provisions of the Declaration of Independence were adopted by other American states,
but they also found their way into the Bill of Rights of the American Constitution. The
French Déclaration des Droits de l’Homme et du Citoyen (Declaration of the Rights of Man)
of 1789, as well as the French Constitution of 1793, reflected the emerging international
theory of universal rights. Both the American and French Declarations were intended as
systematic enumerations of these rights.

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even
at that time, however, some people believed that citizens had a right to demand that the
government endeavor to improve their living conditions.

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Taking into account the principle of equality as contained in the French Declaration of 1789,
several constitutions drafted in Europe around 1800 contained classic rights, but also
included articles which assigned responsibilities to the government in the fields of
employment, welfare, public health, and education.

Social rights of this kind were also expressly included in the Mexican Constitution of 1917,
the Constitution of the Soviet Union of 1918 and the German Constitution of 1919. In the
19th century, there were frequent inter-state disputes relating to the protection of the rights
of minorities in Europe. These conflicts led to several humanitarian interventions and calls
for international protection arrangements.

One of the first such arrangements was the Treaty of Berlin of 1878, which accorded special
legal status to some religious groups. It also served as a model for the Minorities System
that was subsequently established within the League of Nations.

The need for international standards on human rights was first felt at the end of the 19 th
century, when the industrial countries began to introduce labour legislation. This legislation
which raised the cost of labour had the effect of worsening their competitive position in
relation to countries that had no labour laws.

Economic necessity forced the states to consult each other. It was as a result of this that the
first conventions were formulated in which states committed themselves vis-à-vis other
states in regard to their own citizens. The Berne Convention of 1906 prohibiting night-shift
work by women can be seen as the first multilateral convention meant to safeguard social
rights.

Many more labour conventions were later to be drawn up by the International Labour
Organization (ILO), founded in 1919. Remarkable as it may seem, therefore, while the classic
human rights had been acknowledged long before social rights, the latter were first
embodied in international regulations.

The atrocities of World War II put an end to the traditional view that states have full liberty
to decide the treatment of their own citizens. The signing of the Charter of the United
Nations (UN) on 26th June 1945 brought human rights within the sphere of international law.
In particular, all UN members agreed to take measures to protect human rights.

The Charter contains a number of articles specifically referring to human rights. Less than
two years later, the UN Commission on Human Rights (UNCHR), established early in 1946,
submitted a draft Universal Declaration of Human Rights (UDHR) to the UN General
Assembly (UNGA). The Assembly adopted the Declaration in Paris on 10 th December 1948.
This day was later designated as Human Rights Day.

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During the 1950s and 1960s, more and more countries joined the UN. Upon joining they
formally accepted the obligations contained in the UN Charter, and in doing so subscribed to
the principles and ideals laid down in the UDHR.

This commitment was made explicit in the Proclamation of Teheran (1968), which was
adopted during the 1st World Conference on Human Rights, and repeated in the Vienna
Declaration and Programme of Action, which was adopted during the 2 nd World Conference
on Human Rights (1993).

Since the 1950s, the UDHR has been backed up by a large number of international
conventions. The most significant of these conventions are the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and
Cultural Rights (ICESCR).

These two Covenants together with the UDHR form the International Bill of Human Rights.
At the same time, many supervisory mechanisms have been created, including those
responsible for monitoring compliance with the two Covenants.

Human rights have also been receiving more and more attention at the regional level. In the
European, the Inter-American and the African context, standards and supervisory
mechanisms have been developed that have already had a significant impact on human
rights compliance in the respective continents, and promise to contribute to compliance in
the future.

Defining human rights

Human rights are commonly understood as being those rights which are inherent in the
mere fact of being human. The concept of human rights is based on the belief that every
human being is entitled to enjoy her/his rights without discrimination. Human rights differ
from other rights in two respects. Firstly, they are characterized by being:

i. Inherent in all human beings by virtue of their humanity alone (they do not have,
e.g., to be purchased or to be granted);
ii. Inalienable (within qualified legal boundaries); and
iii. Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or
agents, not on individuals. One important implication of these characteristics is that human
rights must themselves be protected by law (‘the rule of law’).

Furthermore, any disputes about these rights should be submitted for adjudication through
a competent, impartial and independent tribunal, applying procedures which ensure full
equality and fairness to all the parties, and determining the question in accordance with
clear, specific and pre-existing laws, known to the public and openly declared.

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The idea of basic rights originated from the need to protect the individual against the
arbitrary use of state power. Attention was therefore initially focused on those rights which
oblige governments to refrain from certain actions.

Human rights in this category are generally referred to as ‘fundamental freedoms’. As

human rights are viewed as a precondition for leading a dignified human existence, they
serve as a guide and touchstone for legislation.

The specific nature of human rights, as an essential precondition for human development,
implies that they can have a bearing on relations both between the individual and the state,
and between individuals themselves.

The individual-state relationship is known as the ‘vertical effect’ of human rights. While the
primary purpose of human rights is to establish rules for relations between the individual
and the state, several of these rights can also have implications for relations among
individuals.

This so called ‘horizontal effect’ implies, among other things, that a government not only
has an obligation to refrain from violating human rights, but also has a duty to protect the
individual from infringements by other individuals.

The right to life thus means that the government must strive to protect people against
homicide by their fellow human beings. Similarly, Article 17 (1) and (2) of the ICCPR obliges
governments to protect individuals against unlawful interference with their privacy.

Another typical example is the Convention of the Elimination of All Forms of Racial
Discrimination (CERD), which obliges states to prevent racial discrimination between human
beings. State obligations regarding human rights may involve desisting from certain
activities (e.g., torture) or acting in certain ways (e.g., organizing free elections).

1.2. Scope of Human Rights

The term human rights are used to denote a broad spectrum of rights ranging from the right
to life to the right to a cultural identity. They involve all elementary preconditions for a
dignified human existence. These rights can be ordered and specified in different ways. At
the international level, a distinction has sometimes been made between civil and political
rights, on the one hand, and economic, social and cultural rights on the other.

This section clarifies this distinction. Since other classifications are also used, these will
likewise be reviewed, without claiming, however, that these categorizations reflect an
international consensus. It is also clear that the various categorizations overlap to a
considerable extent.

Although human rights have been classified in a number of different manners it is important
to note that international human rights law stresses that all human rights are universal,

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indivisible and interrelated (e.g., Vienna Declaration and Programme of Action (1993), para.
5). The indivisibility of human rights implies that no right is more important than any other.

In their contemporary manifestation, human rights are a set of individual and collective
rights that have been formally promoted and protected through international and domestic
law since the 1948 Universal Declaration of Human Rights. Arguments, theories, protections,
and violations of such rights, however, have been in existence for much longer (e.g. Claude
1976; Foweraker and Landman 1997: 1-45; Freeman 2002b: 14-54; Ishay 2004; Sorell and
Landman 2005), but since the Universal Declaration, the evolution of their express legal
protection has grown rapidly.

Today, the numerous international treaties on human rights promulgated since the
Universal Declaration to which an increasingly large number of nation states are a party
define the core content of human rights that ought to be protected across categories of
civil, political, economic, social, and solidarity rights.

Categories of Human Rights

The collection of human rights protected by international law draws on a longer of tradition
of rights from philosophy, history, and normative political theory and now includes three
sets, or categories of rights that have become useful shortcuts for talking about human
rights among scholars and practitioners in the field. These three categories are:

i. Civil and political rights

ii. Economic, social, and cultural rights, and
iii. Solidarity rights.

It has been typically understood that individuals and certain groups are bearers of human
rights, while the state is the prime organ that can protect and/or violate human rights. The
political sociology of human rights argues that historical struggles by oppressed groups have
yielded a greater degree of protection for larger sets of individuals and groups whose rights
have not always been guaranteed while the state itself, in attempt to construct a national
identity and fortify its capacity to govern, has extended various rights protections to
increasingly larger sectors of society (Foweraker and Landman 1997).

The struggle for human rights and contemporary arguments about their continued
promotion and protection have extended beyond exclusive attention on the legal
obligations of nation states and have started focusing on how non-state actors, such as
guerrilla movements, terrorist organizations, warlords, multi-national corporations, and
international financial institutions, may be conceived as responsible for human rights
violations and how such entities may carry an obligation for their protection ( e.g., Forsythe
2000: 191-214; UN Global Compact Office and OHCHR 2004). These different categories of
human rights are considered in turn.

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Civil and political rights uphold the sanctity of the individual before the law and guarantee
his or her ability to participate freely in civil, economic, and political society. Civil rights
include such rights as;

I. The right to life, liberty, and personal security;

II. The right to equality before the law;
III. The right of protection from arbitrary arrest;
IV. The right to the due process of law;
V. The right to a fair trial; and
VI. The right to religious freedom and worship.

When protected, civil rights guarantee one's personhood and freedom from state
sanctioned interference or violence.

Political rights include such rights as;

I. The right to speech and expression;

II. The rights to assembly and association; and
III. The right to vote and political participation.

Political rights thus, guarantee individual rights to involvement in public affairs and the
affairs of state. In many ways, both historically and theoretically, civil and political rights
have been considered fundamental human rights for which all nation states have a duty and
responsibility to uphold ( e.g., Davidson 1993: 39-45; Donnelly 1998: 18-35; Forsythe 2000:
28-52). They have also been seen as so-called ‘negative’ rights since they merely require the
absence of their violation in order to be upheld.

Social and economic rights include such rights as;

I. The right to a family;

II. The right to education;
III. The right to health and well being;
IV. The right to work and fair remuneration;
V. The right to form trade unions and free associations;
VI. The right to leisure time; and
VII. The right to social security.

When protected, these rights help promote individual flourishing, social and economic
development, and self-esteem.

Cultural rights, on the other hand, include such rights as;

I. The right to the benefits of culture;

II. The right to indigenous land, rituals, and shared cultural practices; and
III. The right to speak one's own language and ‘mother tongue’ education.

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Cultural rights are meant to maintain and promote sub-national cultural affiliations and
collective identities, and protect minority communities against the incursions of national
assimilationist and nation-building projects.

In contrast to the first set of rights, this second set of social, economic, and cultural rights is
often seen as an aspirational and programmatic set of rights that national governments
ought to strive to achieve through progressive implementation.

They have thus been considered less fundamental than the first set of rights and are seen as
‘positive’ rights whose realization depends heavily on the fiscal capacity of states (Davidson
1993; Harris 1998: 9; see also Foweraker and Landman 1997: 14-17).

Solidarity rights, which include rights to public goods such as development and the
environment, seek to guarantee that all individuals and groups have the right to share in the
benefits of the earth's natural resources, as well as those goods and products that are made
through processes of economic growth, expansion, and innovation.

Many of these rights are transnational in that they make claims against wealthy nations to
redistribute wealth to poor nations, cancel or reduce international debt obligations, pay
compensation for past imperial and colonial adventures, reduce environmental degradation,
and help promote policies for sustainable development.

Of the three sets of rights, this final set is the newest and most progressive and reflects a
certain reaction against the worst effects of globalization, as well as the relative
effectiveness of 'green' political ideology and social mobilization around concerns for the
health of the planet.

Dimensions of Human Rights

The distinction between these sets of rights follows the historical struggle for them
(Marshall 1963; Claude 1976; Barbalet 1988; Davidson 1993), the appearance of the
separate international instruments that protect them, the philosophical arguments
concerning their status, and the methodological issues surrounding their measurement
( e.g., Claude and Jabine 1992; Foweraker and Landman 1997: 46-65; Landman 2004).

But significant sections of the human rights community have challenged these traditional
distinctions between ‘generations’ of human rights and have sought to establish the general
claim that all rights are indivisible and mutually reinforcing, a sentiment that found formal
expression in the 1993 Vienna Declaration and Programme of Action (Boyle 1995; Donnelly
1999).

Such a challenge suggests that it is impossible to talk about certain sets of human rights in
isolation, since the protection of one right may be highly contingent on the protection of
other rights.

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For example, full protection of the right to vote is largely meaningless in societies that do
not have adequate health, education, and social welfare provision, since high rates of
illiteracy and poverty may mean the de facto disenfranchisement of large sectors of the
population.

Equally, those interested in combating torture need to examine possible underlying socio
economic, cultural, and organizational reasons for the practice of torture, which themselves
may rely on the variable protection of other human rights (e.g., Huggins, Haritos-Fatouros,
and Zimbardo 2002).

This human rights challenge also suggests that there is a false dichotomy between negative
and positive rights (e.g., Shue 1980; Donnelly 2003: 30-33) that tends to privilege civil and
political rights over economic and social rights, since the protection of the former appears
less dependent on state resources than the latter (Foweraker and Landman 1997: 14-17).

One response to this false dichotomy is to claim that ‘all rights are positive’ (Holmes and
Sunstein 1999) since the full protection of all categories of human rights ultimately relies on
the relative fiscal capacity of states.

In this view, the protection of property rights requires a well-funded judiciary, police force,
and fire service, as well as a well-developed infrastructure that can relay information, goods,
and services in the event that property is under threat in some way.

A similar argument can be made about guaranteeing the right to vote. Beyond prohibiting
intimidation and discrimination at the polls, running a free and fair election requires a
tremendous amount of financial support, technology, and infrastructure, the need for which
has been illustrated dramatically by the highly contested process and result of the 2000
Presidential Election in the United States.

And as above, the prevention of torture involves training and education within police and
security forces, which entails the need for significant financial resources from the state.
Another response to the traditional division between positive and negative human rights is
to view them has having positive and negative dimensions, the full delineation of which is
essential for human rights measurement (Landman 2004: 922-923).

By claiming that all rights are positive, we may lose sight of significant negative
characteristics of human rights. While it is clearly possible above to see how civil and
political rights have positive characteristics (i.e. the provision of well-funded judiciaries,
training and education programmes, and well-developed infrastructure), it is equally
possible to see how economic and social rights have significant negative characteristics.

For example, just like torture by the state is seen as preventable if only the state refrained
from torturing, discrimination in public education and healthcare is equally preventable if
only the state refrained from so discriminating.

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In this way, it is equally possible to have a ‘violations approach’ (Chapman 1996) to studying
the promotion and protection of economic, social, and cultural rights as it is to studying the
promotion and protection of civil and political rights.

Positive dimensions include those actions that states can take to provide resources and
policies for improving the protection of human rights while negative dimensions are those
actions that states do (or not do) that deliberately violate (or protect) human rights. Certain
cells in the matrix have been well covered in the theory and practice of human rights.

For example, the negative dimensions of civil and political rights are the traditional focus of
human rights international standards (e.g. the 1966 International Covenant on Civil and
Political Rights) systems (e.g. United Nations, European, Inter-American, and African), and
mechanisms for reporting and redress (e.g. Human Rights Committee, European Court of
Human Rights; Inter-American Commission and Inter-American Court of Human Rights);
monitoring, advocacy, and campaigns from human rights non-governmental organizations
(e.g. Amnesty International and Human Rights Watch); and much of the academic
scholarship in political science ( e.g., Landman 2005).

Equally, the positive dimensions of economic, social, and cultural rights in Cell III have been
the traditional focus of human rights international standards (e.g. the 1966 International
Covenant on Economic, Social, and Cultural Rights), mechanisms for reporting and redress
(e.g. the Committee on Economic, Social, and Cultural Rights), non-governmental
organizations working on social justice and minority rights issues (e.g. Minority Rights Group
International) and academic scholarship primarily in sociology, developmental economics,
and anthropology (Turner 1993; Freeman 2002a, 2002b).

Outside these two areas of human rights that have received wide attention and debate,
there have been varying degrees of attention paid to the positive and negative dimensions
of human rights depicted in the remaining cells.

For the positive dimensions of civil and political rights in Cell I, the work on ‘good
governance’ (Weiss 2000) has sought to examine the ways in which investment in
judiciaries, prisons, and police forces can improve the foundations of governance and so
deliver better economic prosperity (World Bank 1992; Knack and Keefer 1995; Clague,
Keefer, Knack, and Olson 1996, 1997; USAID 1998a, 1998b; de Soto 2000), while those
interested in the administration of justice see such positive aspects of civil and political
rights as essential to addressing problems of the ‘(un)rule’ of law (e.g. Méndez, O’Donnell,
and Pinheiro 1999).

For the negative dimensions of economic, social, and cultural rights in Cell IV, there has
been much focus on general patterns of gender, ethnic, racial, linguistic, and religious
discrimination, but perhaps less attention on how these practices may constitute violations
to economic, social, and cultural rights (Chapman 1996).

16
Since the debt crisis in the 1980s, there has been an increase in social mobilization and
attention (e.g. Charter 99 issued by the One World Trust) around the transnational issues of
debt relief, developmental assistance and distribution of global income, and ‘post-colonial’
reparations for past practices made most vocally at the 2001 World Conference Against
Racism.

Since the 1970s, groups have been mobilizing for transnational solutions to the global
environmental problems and have focused on the negative dimensions of ‘offending’ states
such as the United States, but there has been less of a focus on the rights issues associated
with such solutions.

Finally, from a human rights perspective, the work on globalization and trade has focused on
the ‘violation’ represented by unfair trade agreements hammered out in the World Trade
Organization (e.g. Compa and Diamond 1996; Francioni 2001), which is seen to be
disproportionately influenced by the United States and the European Union (Steinberg
2005), as well as unsavoury manufacturing and production techniques used by multinational
corporations.

Positive and negative dimensions of human rights categories;

Dimensions

Positive Negative
(i.e. provision of resources and outcomes of (i.e. practices that deliberately violate)
policies)

I II
Civil & Investment in judiciaries, prisons, police forces, and Torture, extra-judicial killings,
political elections disappearance, arbitrary detention, unfair
trials, electoral intimidation,
disenfranchisement Economic, social, and
cultural
Economic,
Social & III IV
Cultural Progressive realization Investment in health, Ethnic, racial, gender, or linguistic
education, and welfare discrimination in health, education, and
welfare Categories of human rights
Solidarity

V VI
Solidarity Compensation for past wrongs Debt relief Overseas Environmental degradation CO2 emissions
development and technical assistance Unfair trade

1.3. Universal Declaration of Human Rights (UDHR)

17
The Universal Declaration of Human Rights (UDHR) is a historic document that was adopted
by the United Nations General Assembly at its 3rd session on 10th December 1948 as
Resolution 217 at the Palais de Chaillot in Paris, France. Of the then 58 members of the
United Nations, 48 voted in favour, none against, 8 abstained, and 2 did not vote.

The Declaration consists of 30 articles affirming an individual's rights which, although not
legally binding in themselves, have been elaborated in subsequent international treaties,
economic transfers, regional human rights instruments, national constitutions, and other
laws.

The Declaration was the first step in the process of formulating the International Bill of
Human Rights, which was completed in 1966, and came into force in 1976, after a sufficient
number of countries, had ratified them.

Some legal scholars have argued that because countries have constantly invoked the
Declaration for more than 50 years, it has become binding as a part of customary
international law.

However, in the United States, the Supreme Court in Sosa vs. Alvarez-Machain (2004)
concluded that the Declaration "does not of its own force impose obligations as a matter of
international law”. Courts of other countries have also concluded that the Declaration is not
in and of itself part of domestic law.

The underlying structure of the Universal Declaration was introduced in its 2 nd draft, which
was prepared by René Cassin. Cassin worked from a first draft, which was prepared by John
Peters Humphrey.

The structure was influenced by the Code Napoléon, including a preamble and introductory
general principles. Cassin compared the Declaration to the portico of a Greek temple, with a
foundation, steps, four columns, and a pediment.

Preamble

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which
have outraged the conscience of mankind, and the advent of a world in which human beings
shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to

rebellion against tyranny and oppression, that human rights should be protected by the rule
of law,

Whereas it is essential to promote the development of friendly relations between nations,

18
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in
fundamental human rights, in the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote social progress and better
standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the
United Nations, the promotion of universal respect for and observance of human rights and
fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest

importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF

HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to
the end that every individual and every organ of society, keeping this Declaration constantly
in mind, shall strive by teaching and education to promote respect for these rights and
freedoms and by progressive measures, national and international, to secure their universal
and effective recognition and observance, both among the peoples of Member States
themselves and among the peoples of territories under their jurisdiction.

Article 1 of the UDHR states that, “All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood”.

Article 2 of the UDHR states that, “Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or
international status of the country or territory to which a person belongs, whether it is
independent, trust, non-self-governing or under any other limitation of sovereignty”.

Article 3 of the UDHR states that, “Everyone has the right to life, liberty and security of
person”.

Article 4 of the UDHR states that, “No one shall be held in slavery or servitude; slavery and
the slave trade shall be prohibited in all their forms”.

Article 5 of the UDHR states that, “No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment”.

Article 6 of the UDHR states that, “Everyone has the right to recognition everywhere as a
person before the law”.

Article 7 of the UDHR states that, “All are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal protection against any

19
discrimination in violation of this Declaration and against any incitement to such
discrimination”.

Article 8 of the UDHR states that, “Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the
constitution or by law”.

Article 9 of the UDHR states that, “No one shall be subjected to arbitrary arrest, detention
or exile”.

Article 10 of the UDHR states that, “Everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him”.

Article 11 of the UDHR states that, “(1) everyone charged with a penal offence has the right
to be presumed innocent until proved guilty according to law in a public trial at which he has
had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal
offence on account of any act or omission which did not constitute a penal offence, under
national or international law, at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the penal offence was committed”.

Article 12 of the UDHR states that, “No one shall be subjected to arbitrary interference with
his privacy, family, home or correspondence or to attacks upon his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks”.

Article 13 of the UDHR states that, “(1) everyone has the right to freedom of movement and
residence within the borders of each state. (2) Everyone has the right to leave any country,
including his own, and to return to his country”.

Article 14 of the UDHR states that, “(1) everyone has the right to seek and to enjoy in other
countries asylum from persecution. (2) This right may not be invoked in the case of
prosecutions genuinely arising from non-political crimes or from acts contrary to the
purposes and principles of the United Nations”.

Article 15 of the UDHR states that, “(1) everyone has the right to a nationality. (2) No one
shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”.

Article 16 of the UDHR states that, “(1) Men and women of full age, without any limitation
due to race, nationality or religion, have the right to marry and to found a family. They are
entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage
shall be entered into only with the free and full consent of the intending spouses. (3) The
family is the natural and fundamental group unit of society and is entitled to protection by
society and the State”.

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Article 17 of the UDHR states that, “(1) everyone has the right to own property alone as well
as in association with others. (2) No one shall be arbitrarily deprived of his property”.

Article 18 of the UDHR states that, “Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or belief, and
freedom, either alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance”.

Article 19 of the UDHR states that, “Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of frontiers”.

Article 20 of the UDHR states that, “(1) everyone has the right to freedom of peaceful
assembly and association. (2) No one may be compelled to belong to an association”.

Article 21 of the UDHR states that, “(1) everyone has the right to take part in the
government of his country, directly or through freely chosen representatives. (2) Everyone
has the right of equal access to public service in his country. (3) The will of the people shall
be the basis of the authority of government; this will shall be expressed in periodic and
genuine elections which shall be by universal and equal suffrage and shall be held by secret
vote or by equivalent free voting procedures”.

Article 22 of the UDHR states that, “Everyone, as a member of society, has the right to social
security and is entitled to realization, through national effort and international co-operation
and in accordance with the organization and resources of each State, of the economic, social
and cultural rights indispensable for his dignity and the free development of his
personality”.

Article 23 of the UDHR states that, “(1) everyone has the right to work, to free choice of
employment, to just and favorable conditions of work and to protection against
unemployment. (2) Everyone, without any discrimination, has the right to equal pay for
equal work. (3) Everyone who works has the right to just and favorable remuneration
ensuring for himself and his family an existence worthy of human dignity, and
supplemented, if necessary, by other means of social protection. (4) Everyone has the right
to form and to join trade unions for the protection of his interests”.

Article 24 of the UDHR states that, “Everyone has the right to rest and leisure, including
reasonable limitation of working hours and periodic holidays with pay”.

Article 25 of the UDHR states that, “(1) everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to security in the
event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood
in circumstances beyond his control. (2) Motherhood and childhood are entitled to special

21
care and assistance. All children, whether born in or out of wedlock, shall enjoy the same
social protection”.

Article 26 of the UDHR states that, “(1) everyone has the right to education. Education shall
be free, at least in the elementary and fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit. (2) Education shall
be directed to the full development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It shall promote understanding,
tolerance and friendship among all nations, racial or religious groups, and shall further the
activities of the United Nations for the maintenance of peace. (3) Parents have a prior right
to choose the kind of education that shall be given to their children”.

Article 27 of the UDHR states that, “(1) everyone has the right freely to participate in the
cultural life of the community, to enjoy the arts and to share in scientific advancement and
its benefits. (2) Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the author”.

Article 28 of the UDHR states that, “Everyone is entitled to a social and international order
in which the rights and freedoms set forth in this Declaration can be fully realized”.

Article 29 of the UDHR states that, “(1) everyone has duties to the community in which
alone the free and full development of his personality is possible. (2) In the exercise of his
rights and freedoms, everyone shall be subject only to such limitations as are determined by
law solely for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society. (3) These rights and freedoms may in no case be
exercised contrary to the purposes and principles of the United Nations”.

Article 30 of the UDHR states that, “Nothing in this Declaration may be interpreted as
implying for any State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights and freedoms set forth herein”.

These articles are concerned with the duty of the individual to society and the prohibition of
use of rights in contravention of the purposes of the United Nations Organization.

Historical background of UDHR

During the WW II, the Allies adopted the Four Freedoms namely; freedom of speech,
freedom of religion, freedom from fear and freedom from want as their basic war aims. The
United Nations Charter "reaffirmed faith in fundamental human rights, and dignity and
worth of the human person and committed all member states to promote universal respect
for, and observance of, human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion".

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When the atrocities committed by the Nazi Germany became fully apparent after WW II, the
consensus within the world community was that the United Nations Charter did not
sufficiently define the rights to which it referred. A universal declaration that specified the
rights of individuals was necessary to give effect to the Charter's provisions on human rights.

In June 1946, the UN Economic and Social Council established the Commission on Human
Rights, comprising 18 members from various nationalities and political backgrounds. The
Commission, a standing body of the United Nations, was constituted to undertake the work
of preparing what was initially conceived as an International Bill of Rights.

The Commission established a special Universal Declaration of Human Rights Drafting

Committee, chaired by Eleanor Roosevelt, to write the articles of the Declaration. The
Committee met in two sessions over the course of two years.

John Peters Humphrey, Director of the Division of Human Rights within the United Nations
Secretariat, was called upon by the United Nations Secretary-General to work on the project
and became the Declaration's principal drafter. At the time, Humphrey was newly appointed
as Director of the Division of Human Rights within the United Nations Secretariat.

Other well-known members of the drafting committee included Rene Cassin of France,
Charles Malik of Lebanon and P. C. Chang of the Republic of China. Humphrey provided the
initial draft that became the working text of the Commission. Hansa Mehta of India
suggested adding, "All human beings are created equal" instead of "all men are created
equal" in the declaration.

According to Allan Carlson, the Declaration's pro-family phrases were the result of the
Christian Democratic movement's influence on Cassin and Malik. Once the Committee
finished its work in May 1948, the draft was further discussed by the Commission on Human
Rights, the Economic and Social Council, the Third Committee of the General Assembly
before being put to vote in December 1948.

During these discussions many amendments and propositions were made by UN Member
States. British representatives were extremely frustrated that the proposal had moral but no
legal obligation. It was not until 1976 that the International Covenant on Civil and Political
Rights came into force, giving a legal status to most of the Declaration.

Adoption of UDHR

The Universal Declaration was adopted by the General Assembly as Resolution 217 on 10 th
December 1948 in Palais de Chaillot, Paris, as the 3rd United Nations General Assembly was
held there. Of the then 58 members of the United Nations, 48 voted in favour, none against,
8 abstained and Hondura and Yemen failed to vote or abstain. The meeting record provides
first hand insight into the debate. South Africa's position can be seen as an attempt to
protect its system of apartheid, which clearly violated several articles in the Declaration.

23
The Saudi Arabian delegation's abstention was prompted primarily by two of the
Declaration's articles: Article 18, which states that everyone has the right "to change his
religion or belief"; and Article 16, on equal marriage rights.

The six communist countries abstentions centered on the view that the Declaration did not
go far enough in condemning fascism and Nazism. Eleanor Roosevelt attributed the
abstention of Soviet bloc countries to Article 13, which provided the right of citizens to leave
their countries.

The 48 countries that voted in favour of the Declaration are: Afghanistan, Argentina,
Australia, Belgium, Bolivia, Brazil, Burma, Canada, Chile, China, Colombia, Costa Rica, Cuba,
Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece,
Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico,
Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru,
Philippines, Siam, Sweden, Syria, Turkey, United Kingdom, United States, Uruguay, and
Venezuela.

The Eight abstained countries were; Czechoslovakia, Poland, Saudi Arabia, Soviet Union,
Byelorussian SSR, Ukrainian SSR, South Africa, and Yugoslavia. And the Two countries who
did not vote were; Honduras and Yemen.

Thus, the concept of Universal Declaration of human rights can be trace back to the 1 st
international treaties of Westphalia in 1648 with regards to the freedom of religion and the
abolition of slavery and so, this declaration has been rooted in the historical context of
human civilization.

Evidently, slavery had already been condemned by the Congress of Vienna in 1815, the
treaty of Washington of 1862, Document of the conferences in Brussels in 1867 and 1890
and in Berlin in 1885.

Besides, the international co-operation with regards to the Laws of War as the Declaration
of Paris in 1856, the First Geneva Convention in 1864 and the Second in 1906 and The Hague
Convention in 1899 and 1907 and also the International Committee of the Red Cross of 1864
constitutes the historical foundation of Universal Declaration of Human Rights.

The end of the 1St World War gave rise to a growing belief that Governments alone cannot
safeguard human rights, which require international guarantees. Though the mandate of
the League of Nations did not mention human rights, it tried to undertake the protection of
human rights through international conventions and treaties.

Thus, the standards determining the conditions of industrial workers established in the
beginning of the 20th century became the subject of further international agreements as
elaborated by the International Labor Organization (ILO), created in 1919. And so, the
International Slavery Convention, signed in Geneva on 25th September 1926, ended the

24
protracted efforts aimed at the abolition of slavery and relevant conventions for the
protection of safeguards were also adopted in 1933 and 1938.

But the totalitarian regimes established in Germany and Italy violated human rights in their
own countries and the WW II also brought about massive abuse of human life and dignity
and attempts to eliminate entire groups of people because of their race, religion or
nationality.

And thus, it became clear that international instruments were needed to codify and protect
human rights. This conviction was reflected in and reinforced by the Charter of the United
Nations signed on 26th June, 1945.

Thus, the concern for human rights stands reflected on all pages of the UN Charter. Its
Preamble repeatedly contains a reference to human rights; article 1 of the UN Charter
records the universal need for promoting and encouraging respect for human rights.

And so, the UN Charter makes it a responsibility for the Nations under its Article 55(e). It
states “to promote universal respect for and observance of human rights and fundamental
freedom for all without distinction as to race, sex, language or religion”.

It is a responsibility given to all organs of the UN as Art. 62 (2) makes it a function of the
Economic and Social Council to make recommendations for the purpose of promoting
respect and observance of human rights and fundamental freedom for all.

Similarly, article 76 of the UN Charter deals with the trusteeship system insists on
encouragement of respect for human rights and freedom for all the people. The provisions
of the Charter have the force of positive international law because the Charter is a treaty
and therefore, a legally binding document.

All UNO member states must fulfill in good faith the obligations they have assumed under
the Charter of the UN, including the obligations to promote respect for human rights, to
promote observance of human rights and to co-operate with the UNO and other nations to
attain this aim.

As such, acting under the provisions of the UN Charter, the Human Rights Commission was
established by the UN Economic and Social Council in February, 1946. This Commission was
directed to prepare recommendations and report on;

a) An International Bill of Human Rights

b) International Conventions or Declarations on Civil Liberties, the Status of Women,
freedom of information and similar other matters
c) The protection of minorities
d) The Prevention of discrimination on the basis of race, sex, language or religion and
e) Other matters concerning Human Rights.

25
Consequently, the Commission worked for more than 30 months and prepared the text of
the Universal Declaration of Human Rights and some other conventions. It was then
adopted by the UN General Assembly by a vote 48-0 with eight abstentions.

10th December, 1948 became a historic day because on this day, the Universal Declaration of
Human Rights was adopted by the UN General Assembly. It was indeed an historic event of
profound significance and one of the greatest achievements of the UN, achieved within
about 36 months of its inception as an international organization.

Significance and legal effect of UDHR

In 1948, the UN Resolution adopted the Declaration on a bilingual document in English and
French, and official translations in Chinese, Russian and Spanish. In 2009, the Guinness Book
of Records described the Declaration as the world's "Most Translated Document" (370
different languages and dialects). The Unicode Consortium stores 431 of the 503 official
translations available at the OHCHR (as of June 2017).

In its preamble, governments commit themselves and their people to progressive measures
that secure the universal and effective recognition and observance of the human rights set
out in the Declaration. Eleanor Roosevelt supported the adoption of the Declaration as a
declaration rather than as a treaty because she believed that it would have the same kind of
influence on global society as the United States Declaration of Independence had within the
United States.

Even though it is not legally binding, the Declaration has been adopted in or has influenced
most national constitutions since 1948. It has also served as the foundation for a growing
number of national laws, international laws, and treaties, as well as for a growing number of
regional, sub-national, and national institutions protecting and promoting human rights.

For the first time in international law, the term "the rule of law" was used in the preamble
of the Declaration. The third paragraph of the preamble of the Declaration reads as follows:-

"Whereas it is essential, if man is not to be compelled to have recourse, as a last

resort, to rebellion against tyranny and oppression, that human rights should be
protected by the rule of law”.

The UDHR consists of a Preamble and 30 articles which cover a wide range of civil, political,
economic, social and cultural rights. The very opening line of the Preamble reads, “Whereas
recognition of the inherent dignity and of the equal and inalienable rights of all members of
the human family is the foundation of freedom, justice and peace in the world.

As such, while adopting the UDHR, it was clearly stated that in no way this declaration
interfere with the domestic jurisdiction of each state. It represents the common
consciousness of the human kind as a whole.

26
The rights of each member of the family of nations to discuss the state of Human Rights in
every part of the globe stands recognized as an essential condition for the promotion of
respect for human rights of all. It is now regarded as a milestone in the legal and judicial
history of mankind. It enunciates that Human Rights and Fundamental Freedom should be
available to every human being on this earth.

According to Mrs. Roosevelt, the then Chairman of the Commission on Human Rights and
the Principal Representatives of the USA on the 3rd Committee,

“this declaration might well become the international Magna Carta of all Mankind…
its proclamation by the General Assembly would be of importance comparable to the
1789 proclamation of the Declaration of the Rights of Man in the Declaration of
Independence of the USA and similar declaration made in other countries”.

As such, the UDHR is a declaration of principles directed to the peoples of the world. It has
been considered as one of the greatest achievements of the UN and maintained that, “the
UDHR has a significant influence on the development of standards that states are not only
expected to treat as goals, to be achieved but also as legal commitments to be respected”.

Besides, the then Director General of UNESCO, Mr. Torres Bodet called the Declaration as,
“the richest in promise of all the international texts to which the governments have
subscribed since 1945 in order to give life to the San Francisco Charter”.

Thus, the significance of the UDHR can be summarized as follows;

The UDHR was the first of its kind in the history of international organization. The
Declaration was a sort of statement of rights considered essential for human development
all over the world. Although the declaration was not binding on the member states; it
provided a yardstick by which the progress of the state and people in the field of human
rights could be assessed.

It became one of the most remarkable developments in the law of nations. Although not to
be considered binding as a treaty, it has developed such authority that it not only is a source
of law but has come to have the force of law.

It has acquired a political and moral authority which is unequalled by any other international
instruments with the exception of the Charter itself. No international instrument has ever
received the same acceptance on all levels of society.

Even at the level of international relations, it has served a very useful purpose. It has often
been cited in support of human rights. For example, the Apartheid policy of South Africa
was attacked on the ground that it blatantly violated the letter and spirit of the Declaration.

It has exercised profound influence on the constitutions of new nations and regional
agreements. Thus, the constitutions of Indonesia, Syria, El.Salvador, Haiti, Libya, Jordan and

27
numerous other countries have borrowed much from the Declaration. Even in the treaties
and regional agreements the influence of the Declaration is quite visible.

The Indian Constitution which came into force from 26th January, 1950, was also greatly
influenced by the UDHR. In fact, the framers of the Indian Constitution were aware of the
Declaration and therefore they gave due recognition to its provisions, a number of rights
guaranteed to citizens in part - III of the Indian Constitution are similar to the provisions of
the UDHR.

Thus, the UDHR is definitely an international Magna Carta of Mankind. And so, in order to
give a legal basis to the rights and freedoms proclaimed in the UDHR, two important
international covenants namely; economic, social and cultural rights and the civil and
political rights were adopted by the UN General Assembly in 1966 and came into force in
1976.

Legal effect

While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining
the meaning of the words "fundamental freedoms" and "human rights" appearing in the
United Nations Charter, which is binding on all member states. For this reason, the Universal
Declaration of Human Rights is a fundamental constitutive document of the United Nations.

In addition, many international lawyers believe that the Declaration forms part of customary
international law and is a powerful tool in applying diplomatic and moral pressure to
governments that violate any of its articles.

The 1968 United Nations International Conference on Human Rights advised that the
Declaration "constitutes an obligation for the members of the international community" to
all persons.

The Declaration has served as the foundation for two binding UN human rights covenants
namely;

1. The International Covenant on Civil and Political Rights and

2. The International Covenant on Economic, Social and Cultural Rights.

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, the United
Nations Convention on the Rights of the Child, the United Nations Convention Against
Torture, and many more.

The Declaration continues to be widely cited by governments, academics, advocates, and

constitutional courts, and by individuals who appeal to its principles for the protection of
their recognised human rights.

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1.4. Covenants of Human Rights

The conventions on Human Rights are popularly known as “International Bill of Human
Rights”. The UDHR was adopted and proclaimed by the General Assembly of the United
Nations on 10th December 1948. The commission on Human Rights at its 2 nd session from 2nd
– 17th December 1947 established three working groups that is, first on the declaration,
second on the covenant and third on the implementation.

The Universal Declaration consists of Preamble as noted above and 30 Articles covering both
civil and political rights and economic, social and cultural rights. In the preamble which
refers to the faith in fundamental human right in dignity and worth of the human person
and the equal rights of men and women because they considered, and rightly too, it to be
the “foundation of freedom, justice and peace in the world”. The rights proclaimed in the
universal declaration of human right may be classified into four categories.

This “International bill of human rights” comprises of the following;

i. The universal declaration of human rights, 1948 (UDHR).

ii. The international covenant on civil and political rights, 1966 (ICCPR).
iii. The international covenant on economic, social and cultural rights, 1966 (ICESCR).
iv. The optional protocol to the international covenant on civil and political right, 1966.

These covenant which U.N. affirmed in the charter of U.N. and their determination to
promote social progress and better standards of life in larger freedom; it also refers to the
pledge taken by the member state to achieve, in co-operation with the United Nations the
promotion of universal respect for the observance of human rights and fundamental
freedom.

Through this U.D.H.R. it achieves standard of common for all peoples and all nation every
individual and every organ of the society not only to national but also international security
universal and effective recognition and observance, both among the people of member and
their jurisdiction.

Although the United Nations had in tacit terms indicated people’s determination to reaffirm
their faith in fundamental human rights. The same per se was not sufficient as it lacked
clarity in what human rights are as they were undefined. Therefore, for this reason a
categorical statement during all human rights was required at international level.

Consequently, the Universal Declaration of Human Rights to be enacted. It is regretfully

submitted that, mere declaration of human rights also was not sufficient and this came to be
realized for the next two decades. In the circumstance, the ICCPR and the ICESCR came to
be enacted in the year 1966.

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The reason for the advert of these covenants was that where there is a right, there is a
remedy that is ‘ubi jus ibi remedium,’ but UDHR only spelt right not spelt rights not
remedies.

It was realized that a right without remedy is no right in practicality. The beauty of ICCPR
and ICESCR was that it bound the states party to it to implement the covenants. These
covenants have achieved immense success at international level qua almost the entire globe
is signatory to it. As many as 167 nations across the globe are to the ICCPR and as many as 7
nations have signed it but not ratified it.

There are 18 nations which have not signed the ICCPR. India has not only signed but also
ratified. The ICCPR likewise, ICESCR is signed and ratified by 160 nations barring 25 who
have neither signed it nor ratified it and 7 who have signed it but not ratified it.

The enactment of two different covenants in 1966 marks the era of water-tight
compartmentalization of rights, viz. civil and political rights on one hand and economic,
social and cultural right on other hand. It appears that this a welcome step in the further
progress of civilization in the 20th century by engulfing finer grace of human civilization.

International Covenant on Civil and Political rights (ICCPR)

Human rights protection is always a stony way, requiring a long breath and protection. The
rights of citizens to liberty and equality; sometimes referred to as first generation rights.
Civil rights include freedom to worship, to think and express oneself, to vote, to take part in
political life, and to have access to information.

The International Covenant on Civil and Political Rights (ICCPR) is the core of the legally
binding human rights protection at the universal level. ICCPR is an international human
rights treaty, providing a range of protections for civil and political rights.

It is open for ratification to all states so it has universal relevance. The ICCPR, and its two
Optional Protocols, is part of the International Bill of Human Rights, along with the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal
Declaration of Human Rights (UDHR).

The first Protocol establishes an individual complaints mechanism, and the second abolishes
the death penalty. The Covenant consists of a preamble, which links the full implementation
of equal rights for all members of the human family and 53 articles. The preamble calls
some equally fundamental general political requirements, necessary for the promotion of
full equality between men and women in the exercise of their human rights.

It also proclaims the ideal of free human beings enjoying civil and political freedom and
everyone may enjoy his civil and political rights, as well as his economic, social and cultural
rights.

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The catalogue of rights guaranteed contains almost all classical liberal human rights and
freedoms that are particularly in danger of violation:-

1. Protection for the right to life as a general prohibition of the death penalty (article 6)
2. Prohibition of torture or cruel, inhuman or degrading treatment or punishment
(article 7) and
3. Protection from arbitrary arrest or detention (article 9)

The substantive articles of the ICCPR can be categorized in five categories namely;

i. Protection on individual's physical integrity.

ii. Procedural fairness in law.
iii. Protection based on gender, religious, racial or other forms of discrimination.
iv. Individual freedom of belief, speech, association, freedom of press, right to hold
assembly.
v. Right to political participation.

The Covenant compels governments to take administrative, judicial and legislative measures
in order to protect the rights enshrined in the treaty and provide an effective remedy.

Participation of the States

The states parties of the Covenant on Civil and Political Rights are distinguish in several
categories namely;

i. States which have became parties by ratification: 35 states that ratified the
Covenant. For all states the relevant date is 23rd March 1976.
ii. States which have became parties by accession: Ratified the Covenant after that
date and entered into force 3 months after their declaration of ratification or
accession.
iii. States which have became parties by succession by states already bound by
Covenant: The succession is the replacement of one state by another in the
responsibility for the international relations of territory. The state successor of a
state which was already bound by the Covenant is automatically obligated by the
Covenant from the date when the fact of succession took place. The lists of the
states which have become parties by succession include Croatia, Macedonia, Bosnia-
Herzegovina, Estonia, Latvia, Lithuania, etc.

Reservation to the ICCPR

Numerous countries have made reservations to the ICCPR limiting in this way their
obligations, excluding the duty to provide and guarantee particular rights in the Covenant.
The Covenant neither prohibits reservations nor mentions any type of permitted
reservation.

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The reservation is a unilateral statement, however phrased or named, made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their application to
that State.

The State Party to the Covenant undertakes to respect and to ensure the rights recognized
in the ICCPR, but some country, using the general rules of international law, have made
reservation upon ratification, accession or succession.

For example, one of the reservations of Romania is; Article 10 "In relation to paragraph 2 (a)
the principle of segregation is accepted as an objective to be achieved progressively. In
relation to paragraph 2 (b) and 3 (second sentence) the obligation to segregate is accepted
only to the extent that such segregation is considered by the responsible authorities to be
beneficial to the juveniles or adults concerned".

Another state is U.S.A. upon ratifying in 1992 the United States entered 5 reservations, 5
understandings, and 3 declarations. These Reservations included;

i. Protection of free speech under the U.S. Constitution.

ii. Right to impose capital punishment on any person (other than pregnant women),
including juveniles.
iii. Limiting the prohibition against cruel, inhuman or degrading treatment or
punishment to the constitutional prohibition under 5th, 8th and 14th Amendments.
iv. Limits on the treatment of juveniles as adults in the criminal justice system.

The reservations are made for the ICCPR, because it is a human rights treaty, and have put
into doubt the applicability of the general regime of reservation. The number of
reservations, their content and their scope may undermine the effective implementation of
the Covenant and tend to weaken respect for the obligations of States Parties. All
reservations incompatible with object and purpose are without legal effect.

The obligations created by the Covenant

The purpose of Covenant is the creation of conditions whereby everyone may enjoy his civil
and political rights. To establish and retain an order where human beings can live as their
inherent dignity requires, and to supplement the existing domestic means for the
observance of the rights by making them enforceable by the other states parties and by
monitoring bodies which the treaty may have established.

The nature of state obligations imposed by the Convention is defined in Part II of ICCPR.
Article 2 reads:

“Each State Party … undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant
….”

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From this article derives the principal obligations under ICCPR; implementation is absolute
and immediate and the basic role of the State is non-interference. But the full
implementation of Covenant cannot be achieved alone by obliging state to abstain from
encroachments upon the rights. Something more is required.

The obligations accepted by states parties are in order to respect and ensure the rights
recognized in the Covenant. The duty to respect is of a negative nature because it orders
states to refrain from restricting the enjoyment of a right where limitations are not provided
for.

State Party undertakes to “respect and ensure” all of the Covenant rights to “all individuals
within its territory and subject to its jurisdiction”. This obligation is that States Parties should
act with “due diligence” to take appropriate steps to prevent, punish, investigate and
redress harm by private entities. The duty to protect applies to all rights “so far as they are
amenable to application between private persons or entities.

The Human Rights Committee, while not expressly using the language of the tripartite
typology, has also remarked that states parties have more than a mere obligation to
‘respect’ the right to life guaranteed in the ICCPR. It reads:

"the Committee considers that States have the supreme duty to prevent wars, acts of
genocide and other acts of mass violence causing arbitrary loss of life…The
expression ‘inherent right to life’ cannot properly be understood in a restrictive
manner, and the protection of this right requires that States adopt positive
measures. In this connection, the Committee considers that it would be desirable for
States parties to take all possible measures to reduce infant mortality and to increase
life expectancy, especially in adopting measures to eliminate malnutrition and
epidemics".

Under Article 2(3) States Parties undertake to ensure that a person whose rights are violated
has an effective remedy and that a person claiming such a remedy has his/her right
determined by competent authorities provided by the State’s legal system. States Parties
also undertake to develop the possibility of judicial remedies and to ensure remedies are
enforced.

The duty to ensure, as a positive dimension, means that the creation of conditions whereby
everyone may enjoy his civil and political rights required something more than the
obligation of states to abstain from encroachments upon the rights. A different question is
whether States Parties have any duties under the Covenant to regulate corporate activities
which affect individuals who are both outside their national territory and effective control.

Unlike the Convention against Torture, the Covenant does not expressly ask States to
exercise jurisdiction over their nationals, and the Committee does not appear to have given
significant guidance on this issue. It has said that States Parties should assist other States to

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bring perpetrators of certain violations to justice, but has not specified whether such
“assistance” should include extra-territorial regulation, or whether such regulation should
extend to corporate acts.

Access to the Judicial System

It has often been argued that the right to legal assistance is the cornerstone for civil and
political rights. Even though there is no explicit provision in human rights treaties discussing
access to courts as a principle of international human rights law, the concept has been
found to be implicit in the statement that "all persons shall be equal before the courts and
tribunals", found in all major human rights treaties.

The ICCPR, under Article 14 par. 3 (d) of the ICCPR establish that all persons have the right,
"to be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have legal assistance, of his right; and to
have legal assistance assigned to him, in any case where the interests of justice so require
and without payment by him in any such case if he does not have sufficient means to pay for
it".

In addition to the treaties and the international criminal tribunals, the Committee has been
active in adopting detailed standards in the criminal area, primarily through the work of the
United Nations Crime Prevention and Criminal Justice Program. Governments shall ensure
the provision of sufficient funding and other resources for legal services to the poor and as
necessary, to other disadvantaged persons. Professional associations of lawyers shall co-
operate in the organization and provision of services, facilities and other resources.

The human rights Committee and the implementation of ICCPR

The “Human Rights Committee” was established by Article 28 of the ICCPR. Its functions are
outlined in Part IV of the Covenant. It has the role of monitoring and supervising the
implementation by States Parties of their obligations under the ICCPR. The Human Rights
Committee is the principal actor at the international level mandated to enforce the rights
enunciated in the ICCPR.

The List of Issues covers by human rights Committee include: the right to life, the right to
freedom from torture, the right to liberty and security, the right to a fair trial, the right to
freedom of association and assembly, the right to freedom of expression, the right to an
effective remedy, the right to privacy and the right to freedom from discrimination.

States are required to submit at regular intervals reports and the Committee summarizes its
assessment of the prevailing human rights situation by noting its concerns in open and
straightforward language without any diplomatic inhibitions. But these concluding
observations are not legally binding.

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Formally, all human rights are ‘indivisible and interdependent and interrelated, but in
practice a distinction is often drawn between civil and political rights on the one hand, and
economic, social and cultural rights on the other. The most adequate form of the protection
of human rights is to accord to the victims the possibility to complain for violations of
human rights.

Under the First Optional Protocol, the Committee can receive Individual Communications
from any individual under the jurisdiction of a State that is party to the First Optional
Protocol who claims that his or her rights under the Covenant have been violated by the
State Party.

Only the person who is a victim of a violation of articles 2 – 27 of the ICCPR or their
representative can submit a complaint. The representative must show that they have a close
connection with the victim, for example a close relative.

If a complaint is declared admissible the Committee examines the communication and

decides whether a violation of Covenant rights has occurred. If there is a violation the
Committee requests the state to provide reparation to the victim such as release from
detention, etc.

From the beginning the Committee, under the First Optional Protocol, has delivered its
views on violations and has drawn conclusion from finding and asked the state for redress.
But the Committee cannot take a legally binding decision, it can only provide its opinion and
the state should notify for the measure or the reason if they do not want to comply this
opinion.

The most important feature of the Covenant is that it is a universal instrument containing
binding legal obligations for States parties that protects stateless persons as well as
nationals. The high number of States parties to the Covenant and the fact that many of its
provisions are now part of customary international law point to its huge significance in
international law.

Undoubtedly, reservations and derogations weaken the implementation of the ICCPR but
these are tempered, not only by the quite stringent requirements under article 4, but also
by the deliverance of general comments by the HRC on both of these contentious issues.

Furthermore, the number of communications to the Committee has grown steadily over the
years, ensuring that individuals have a forum at which to hold States parties accountable for
non-implementation of the rights guaranteed in the ICCPR.

Traditionally the guarantee of human rights had been responsibility of the states in
accordance with their national legal system. There is no generally recognized international
authority to which an individual could address him claiming to be a victim of a human rights
violation, and which could decide a complaint.

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It can be said that the individual communication procedure established by Optional Protocol
is a major achievement in the protection of human rights at the international level. But the
main deficiency is still the lack of binding jurisdiction of the Human Rights Committee.

The main success is the recognition of individuals as holders of international claims to

respect the Covenant rights and for the reparation if they are victims of a violation of these
rights. Human rights law has changed rediscovering the international status of the
individual.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral
treaty adopted by the United Nations General Assembly on 16th December 1966, and
enforce from 3rd January 1976. It commits its parties to work toward the granting of
economic, social and cultural rights (ESCR) to the Non Self-Governing and Trust Territories
and individuals, including labour rights and the right to health, the right to education, and
the right to an adequate standard of living. As of 2015, the Covenant has 164 parties.

A further six countries, including the United States, have signed but not ratified the
Covenant. The ICESCR is part of the International Bill of Human Rights, along with the
Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights (ICCPR), including the latter's first and second Optional Protocols. The
Covenant is monitored by the UN Committee on Economic, Social and Cultural Rights.

The ICESCR has its roots in the same process that led to the Universal Declaration of Human
Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San
Francisco Conference which led to the founding of the United Nations, and the Economic
and Social Council was given the task of drafting it.

Early on in the process, the document was split into a declaration setting forth general
principles of human rights, and a convention or covenant containing binding commitments.
The former evolved into the UDHR and was adopted on 10th December 1948.

Drafting continued on the convention, but there remained a significant differences between
UN members on the relative importance of negative civil and political versus positive
economic, social and cultural rights. These eventually caused the convention to be split into
two separate covenants, "one to contain civil and political rights and the other to contain
economic, social and cultural rights”.

The two covenants were to contain as many similar provisions as possible, and be opened
for signature simultaneously. Each would also contain an article on the right of all peoples
to self-determination. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust Territories, shall

36
promote the realization of the right of self-determination, and shall respect that right, in
conformity with the provisions of the Charter of the United Nations.

The first document became the International Covenant on Civil and Political Rights, and the
second the International Covenant on Economic, Social and Cultural Rights. The drafts were
presented to the UN General Assembly for discussion in 1954, and adopted in 1966.

The Covenant follows the structure of the UDHR and the ICCPR, with a preamble and thirty-
one articles, divided into five parts. Part 1 (Article 1) recognizes the right of all peoples
to self-determination, including the right to "freely determine their political status", pursue
their economic, social and cultural goals, and manage and dispose of their own resources.

It recognizes a negative right of a people not to be deprived of its means of subsistence, and
imposes an obligation on those parties still responsible for non-self governing and trust
territories (colonies) to encourage and respect their self-determination.

Part 2 (Articles 2–5) establishes the principle of "progressive realization". It also requires the
rights be recognized "without discrimination of any kind as to race, color, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status". The rights can only be limited by law, in a manner compatible with the nature of the
rights, and only for the purpose of "promoting the general welfare in a democratic society".

Part 3 (Articles 6–15) lists the rights themselves. These include;-

I. Rights to work, under "just and favorable conditions", with the right to form and join
trade unions (Articles 6, 7, and 8);
II. Social security, including social insurance (Article 9);
III. Family life, including paid parental leave and the protection of children (Article 10);
IV. An adequate standard of living, including adequate food, clothing and housing, and
the "continuous improvement of living conditions" (Article 11);
V. Health, specifically "the highest attainable standard of physical and mental health"
(Article 12);
VI. Education, including free universal primary education, generally available secondary
education and equally accessible higher education.
VII. This should be directed to "the full development of the human personality and the
sense of its dignity and enable all persons to participate effectively in society
(Articles 13 and 14); and
VIII. Participation in cultural life (Article 15).

Many of these rights include specific actions which must be undertaken to realize them.

Part 4 (Articles 16–25) governs reporting and monitoring of the Covenant and the steps
taken by the parties to implement it. It also allows the monitoring body originally the United
Nations Economic and Social Council – now the Committee on Economic, Social and Cultural

37
Rights to make general recommendations to the UN General Assembly on appropriate
measures to realize the rights (Article 21).

Part 5 (Articles 26–31) governs ratification, entry into force, and amendment of the
Covenant.

Principle of progressive realization

Article 2 of the Covenant imposes a duty on all parties to take steps... to the maximum of its
available resources, with a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures. This is known as the principle of "progressive realization".

It acknowledges that some of the rights (for example, the right to health) may be difficult in
practice to achieve in a short period of time, and that states may be subject to resource
constraints, but requires them to act as best they can within their means.

The principle differs from that of the ICCPR, which obliges parties to "respect and to ensure
to all individuals within its territory and subject to its jurisdiction" the rights in that
Convention.

However, it does not render the Covenant meaningless. The requirement to "take steps"
imposes a continuing obligation to work towards the realization of the rights. It also rules
out deliberately regressive measures which impede that goal.

The Committee on Economic, Social and Cultural Rights also interprets the principle as
imposing minimum core obligations to provide, at the least, minimum essential levels of
each of the rights. If resources are highly constrained, this should include the use of
targeted programs aimed at the vulnerable.

The Committee on Economic, Social and Cultural Rights regards legislation as an

indispensable means for realizing the rights which is unlikely to be limited by resource
constraints.

The enacting of anti-discrimination provisions and the establishment of enforceable rights

with judicial remedies within national legal systems are considered to be appropriate
means. Some provisions, such as anti-discrimination laws, are already required under other
human rights instruments, such as the ICCPR.

Labor rights

Article 6 of the Covenant recognizes the right to work, defined as the opportunity of
everyone to gain their living by freely chosen or accepted work. Parties are required to take
"appropriate steps" to safeguard this right, including technical and vocational training and
economic policies aimed at steady economic development and ultimately full employment.

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The right implies parties must guarantee equal access to employment and protect workers
from being unfairly deprived of employment. They must prevent discrimination in the
workplace and ensure access for the disadvantaged.

The fact that work must be freely chosen or accepted means parties must prohibit forced
or child labor. The work referred to in Article 6 must be decent work. This is effectively
defined by Article 7 of the Covenant, which recognizes the right of everyone to "just and
favorable" working conditions.

These are in turn defined as fair wages with equal pay for equal work, sufficient to provide a
decent living for workers and their dependents; safe working conditions; equal opportunity
in the workplace; and sufficient rest and leisure, including limited working hours and
regular, paid holidays.

Article 8 recognizes the right of workers to form or join trade unions and protects the right
to strike. It allows these rights to be restricted for members of the armed forces, police, or
government administrators. Several parties have placed reservations on this clause, allowing
it to be interpreted in a manner consistent with their Constitutions (e.g., China, Mexico), or
extending the restriction of union rights to groups such as fire fighters (e.g., Japan).

Right to social security

Article 9 of the Covenant recognizes "the right of everyone to social security, including social
insurance". It requires parties to provide some form of social insurance scheme to protect
people against the risks of sickness, disability, maternity, employment injury,
unemployment or old age; to provide for survivors, orphans, and those who cannot afford
health care; and to ensure that families are adequately supported.

Benefits from such a scheme must be adequate, accessible to all, and provided without
discrimination. The Covenant does not restrict the form of the scheme, and both
contributory and non-contributory schemes are permissible (as are community-based and
mutual schemes).

The Committee on Economic, Social and Cultural Rights has noted persistent problems with
the implementation of this right, with very low levels of access. Several parties, including
France and Monaco, have reservations allowing them to set residence requirements in
order to qualify for social benefits. The Committee on Economic, Social and Cultural Rights
permits such restrictions, provided they are proportionate and reasonable.

Right to family life

Article 10 of the Covenant recognizes the family as "the natural and fundamental group unit
of society", and requires parties to accord it "the widest possible protection and assistance".
Parties must ensure that their citizens are free to establish families and that marriage are
freely contracted and not forced.

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Parties must also provide paid leave or adequate social security to mothers before and after
childbirth, an obligation which overlaps with that of Article 9. Finally, parties must take
"special measures" to protect children from economic or social exploitation, including
setting a minimum age of employment and barring children from dangerous and harmful
occupations.

Right to an adequate standard of living

Article 11 recognizes the right of everyone to an adequate standard of living. This includes,
but is not limited to, the right to adequate food, clothing, housing, and "the continuous
improvement of living conditions". It also creates an obligation on parties to work together
to eliminate world hunger.

The right to adequate food, also referred to as the right to food, is interpreted as requiring
"the availability of food in a quantity and quality sufficient to satisfy the dietary needs of
individuals, free from adverse substances, and acceptable within a given culture".

This must be accessible to all, implying an obligation to provide special programs for the
vulnerable. This must also ensure an equitable distribution of world food supplies in relation
to need, taking into account the problems of food-importing and food-exporting countries.
The right to adequate food also implies a right to water.

The right to adequate housing, also referred to as the right to housing, is "the right to live
somewhere in security, peace and dignity". It requires "adequate privacy, adequate space,
adequate security, adequate lighting and ventilation, adequate basic infrastructure and
adequate location with regard to work and basic facilities – all at a reasonable cost".

Parties must ensure security of tenure and that access is free of discrimination, and
progressively works to eliminate homelessness. Forced evictions, defined as "the permanent
or temporary removal against their will of individuals, families and/or communities from the
homes and/or land which they occupy, without the provision of, and access to, appropriate
forms of legal or other protection", are a prima facie violation of the Covenant.

The right to adequate clothing, also referred to as the right to clothing, has not been
authoritatively defined and has received little in the way of academic commentary or
international discussion. What is considered "adequate" has only been discussed in specific
contexts, such as refugees, the disabled, the elderly or workers.

Right to health

Article 12 of the Covenant recognizes the right of everyone to "the enjoyment of the highest
attainable standard of physical and mental health". "Health" is understood not just as a
right to be healthy, but as a right to control one’s own health and body (including
reproduction), and be free from interference such as torture or medical experimentation.

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States must protect this right by ensuring that everyone within their jurisdiction has access
to the underlying determinants of health, such as clean water, sanitation, food, nutrition
and housing, and through a comprehensive system of healthcare, which is available to
everyone without discrimination, and economically accessible to all.

Article 12 (2) requires parties to take specific steps to improve the health of their citizens,
including reducing infant mortality and improving child health, improving environmental
and workplace health, preventing, controlling and treating epidemic diseases, and creating
conditions to ensure equal and timely access to medical services for all.

These are considered to be "illustrative, non-exhaustive examples", rather than a complete

statement of parties' obligations. The right to health is interpreted as requiring parties to
respect women's' reproductive rights, by not limiting access to contraception or "censoring,
with holding or intentionally misrepresenting" information about sexual health.

They must also ensure that women are protected from harmful traditional practices such
as female genital mutilation. Right to health is inclusive right extending not only to timely
and appropriate health care but also to the underlying determinants of health, such as
access to safe and potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions.

Right to free education

Article 13 of the Covenant recognizes the right of everyone to free education (free for the
primary level and "the progressive introduction of free education" for the secondary and
higher levels). This is to be directed towards "the full development of the human personality
and the sense of its dignity and enable all persons to participate effectively in society.

Education is seen both as a human right and as "an indispensable means of realizing other
human rights", and so this is one of the longest and most important articles of the
Covenant.

Article 13 (2) lists a number of specific steps parties are required to pursue to realize the
right of education. These include the provision of free, universal and compulsory primary
education, "generally available and accessible" secondary education in various forms
(including technical and vocational training), and equally accessible higher education. All of
these must be available to all without discrimination.

Parties must also develop a school system (though it may be public, private, or mixed),
encourage or provide scholarships for disadvantaged groups. Parties are required to make
education free at all levels, either immediately or progressively;

1. Primary education shall be compulsory and available free to all

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 2. Secondary education "shall be made generally available and accessible to all by every
appropriate means, and in particular by the progressive introduction of free
education"; and
3. "Higher education shall be made equally accessible to all, on the basis of capacity, by
every appropriate means, and in particular by the progressive introduction of free
education”.

Articles 13 (3) and (4) require parties to respect the educational freedom of parents by
allowing them to choose and establish private educational institutions for their children,
also referred to as freedom of education. It also recognizes the right of parents to "ensure
the religious and moral education of their children in conformity with their own
convictions".

This is interpreted as requiring public schools to respect the freedom of religion and
conscience of their students, and as forbidding instruction in a particular religion or belief
system unless non discriminatory exemptions and alternatives are available.

The Committee on Economic, Social and Cultural Rights interpret the Covenant as also
requiring states to respect the academic freedom of staff and students, as this is vital for the
educational process. It also considers corporal punishment in schools to be inconsistent with
the Covenant's underlying principle of the dignity of the individual.

Article 14 of the Covenant requires those parties which have not yet established a system of
free compulsory primary education, to rapidly adopt a detailed plan of action for its
introduction "within a reasonable number of years".

Right to participation in cultural life

Article 15 of the Covenant recognizes the right of everyone to participate in cultural life,
enjoy the benefits of scientific progress, and to benefit from the protection of the moral and
material rights to any scientific discovery or artistic work they have created.

The latter clause is sometimes seen as requiring the protection of intellectual property, but
the Committee on Economic, Social and Cultural Rights interprets it as primarily protecting
the moral rights of authors and "proclaim the intrinsically personal character of every
creation of the human mind and the ensuing durable link between creators and their
creations".

It thus requires parties to respect the right of authors to be recognized as the creator of a
work. The material rights are interpreted as being part of the right to an adequate standard
of living, and "need not extend over the entire lifespan of an author”.

Parties must also work to promote the conservation, development and diffusion of science
and culture, "respect the freedom indispensable for scientific research and creative activity"

42
and encourage international contacts and cooperation in these fields. A number of parties
have made reservations and interpretative declarations to their application of the Covenant.

Algeria interprets parts of Article 13, protecting the liberty of parents to freely choose or
establish suitable educational institutions, so as not to "impair its right freely to organize its
educational system”.

Bangladesh interprets the self-determination clause in Article 1 as applying in the historical

context of colonialism. It also reserves the right to interpret the labor rights in Articles 7 and
8 and the non-discrimination clauses of Articles 2 and 3 within the context of its constitution
and domestic law.

Belgium interprets non-discrimination as to national origin as "not necessarily implying an

obligation on States automatically to guarantee to foreigners the same rights as to their
nationals. The term should be understood to refer to the elimination of any arbitrary
behavior but not of differences in treatment based on objective and reasonable
considerations, in conformity with the principles prevailing in democratic societies”.

Egypt accepts the Covenant only to the extent it does not conflict with Islamic Sharia law.
Sharia is "a primary source of legislation" under Article 2 of both the suspended 1973
Constitution and the 2011 Provisional Constitutional Declaration.

France views the Covenant as subservient to the UN Charter. It also reserves the right to
govern the access of aliens to employment, social security, and other benefits.

India interprets the right of self-determination as applying only to the peoples under foreign
domination and not to apply to peoples within sovereign nation-states. It also interprets the
limitation of rights clause and the rights of equal opportunity in the workplace within the
context of its constitution.

Indonesia interprets the self-determination clause (Article 1) within the context of other
international law and as not applying to peoples within a sovereign nation-state.

Monaco interprets the principle of non-discrimination on the grounds of national origin as

"not necessarily implying an automatic obligation on the part of States to guarantee
foreigners the same rights as their nationals”, and reserves the right to set residence
requirements on the rights to work, health, education, and social security.

Turkey will implement the Covenant subject to the UN Charter. It also reserves the right to
interpret and implement the right of parents to choose and establish educational
institutions in a manner compatible with its constitution.

United Kingdom views the Covenant as subservient to the UN Charter. It made several
reservations regarding its overseas territories.

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United States – Amnesty International writes that "The United States signed the Covenant
in 1979 under the Carter administration but is not fully bound by it until it is ratified. For
political reasons, the Carter administration did not push for the necessary review of the
Covenant by the Senate, which must give its 'advice and consent' before the US can ratify a
treaty.

The Reagan and George H.W. Bush administrations took the view that economic, social, and
cultural rights were not really rights but merely desirable social goals and therefore should
not be the object of binding treaties. The Clinton Administration did not deny the nature of
these rights but did not find it politically expedient to engage in a battle with Congress over
the Covenant.

The George W. Bush administration followed in line with the view of the previous Bush
administration”. The Obama Administration stated "The Administration does not seek action
at this time" on the Covenant. The Heritage Foundation, a critical conservative think tank,
argues that signing it would obligate the introduction of policies that it opposes such
as universal health care.

Optional Protocols

The Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights is a side-agreement to the Covenant which allows its parties to recognize the
competence of the Committee on Economic Social and Cultural Rights to consider
complaints from individuals.

The Optional Protocol was adopted by the UN General Assembly on 10 th December 2008. It
was opened for signature on 24th September 2009, and as of February 2013 has been signed
by 40 parties and ratified by 10. Having passed the threshold of required ratifications it has
entered into force on 5th May 2013.

The Committee on Economic, Social and Cultural Rights is a body of human rights experts
tasked with monitoring the implementation of the Covenant. It consists of 18 independent
human rights experts, elected for four-year terms, with half the members elected every two
years.

Unlike other human rights monitoring bodies, the Committee was not established by the
treaty it oversees. Rather, it was established by the Economic and Social Council following
the failure of two previous monitoring bodies.

All states parties are required to submit regular reports to the Committee outlining the
legislative, judicial, policy and other measures they have taken to implement the rights
affirmed in the Covenant. The first report is due within two years of ratifying the Covenant;
thereafter reports are due every five years.

44
The Committee examines each report and addresses its concerns and recommendations to
the State party in the form of “concluding observations”. The Committee typically meets
every May and November in Geneva.

The human rights provisions in the UN Charter, and the adoption of the International
Covenants on Human Rights, the individual is no longer considered merely as an object of
international law but has become its subject.

More than 156 member-states of the United Nations, who are Parties to the International
Covenants, have accepted to respect and ensure human rights of all persons within their
jurisdiction.

The implementation procedures of both the Covenants are weak, one and two of the
procedures are optional. Though they have been institutionalized, their successes have been
modest. States Parties have not been coming forward to make the inter-state and individual
communication system mandatory.

There is very little possibility of these systems becoming compulsory in the near future.
Despite many States becoming Parties to the Covenants and other major treaties of human
rights, massive violations of human rights haunts the world over.

Notwithstanding these problems in adherence and implementation, the adoption of

International Covenants on Human Rights indeed represents an extraordinary step in
mankind’s quest for a better realization of human rights and freedoms. While it is true that
the domestic implementation of international human rights norms has not been very
successful as is the case with regard to the European Convention on Human Rights.

However, it is gratifying to note that under the United Nations an important mechanism to
promote human rights is available which is applicable to every UN member, irrespective of
the fact whether it is a party to any of the UN Covenants. During the last 60 years, the UN
has evolved elaborate Charter-based machinery for the protection of human rights’.

This machinery is better known as “Special Procedures’’ established by the UN Commission

on Human Rights to address either specific country situations or thematic issue in all parts of
the world.

CONCLUSION

From the very beginning of human civilization, the idea of human rights has evolve along
and has brought drastic changes in terms of human perspective and understanding.
Particularly, when the UDHR was adopted by many nations throughout the world, it was an
assurance to the people of the world that your life is safe and secure and that peace will
prevail everywhere.

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But this hope lived a short life as atrocities and genocides engulfed the world political
scenario. It made us realize that Declarations, Covenants and Rights are nothing but some
mere words written in a piece of paper and thus, has nothing to do with world peace and
tranquility.

Universal Declaration of human rights ensures both social and legal security but it does not
convict any violators. The declaration has the license to speak against any atrocities but
cannot punished the culprit due to the fact that human begins are rational begins. Thus,
from this view point, it is always argued that human rights are directly or indirectly
responsible for social and political unrest in the world.

It is however, one cannot simply reject and disapprove the idea of human rights. No doubt,
it is not the perfect solution to counter all our social, political and economic issues but it
help us in finding long-term solutions which caters human dignity and envisaged the
principle of Equality.

UNIT 2: COLLECTIVE, INDIVIDUAL AND GROUP RIGHTS; RIGHTS OF WOMEN, CHILDREN

AND MINORITIES

2.1 Collective rights of Women

The existing beliefs in the world holds that women are always inferior to men, and hence
her natural roles of wife and mother have been viewed as genetically programmed. But the
events of Women movements during 1970s marked the beginning of an era of equality and
development in human society.

It drew the attention to massive evidence of inequalities that existed between men and
women and the dominant status of the male in the society. And so, women in different
societies and in different periods manifest a homogenous trait of that of a non-entity.

The UN Report of 1980s says, “Women constitute half of the world’s total population,
perform nearly two-third of its work hours, receives one-tenth of the world’s income and
own less than one hundredth of world’s property”. As such, advancement of right of women
has been the concern of world community since the end of the 2nd World War.

And so, the Preamble to the Charter of UN mentions the determinations of the peoples of
UN, “to reaffirm faith in fundamental human rights, in the dignity and worth of human
persons, in the equal rights of men and women” and “to employ international machinery for
the promotion of the economic and social advancement of the people”.

Thus, article 1 of the Charter lays down that, one of the purposes of the UN is to achieve
international co-operation in solving international problems of an economic, social and
cultural or humanitarian character and in promoting and encouraging respect for human

46
rights and fundamental freedoms for all without distinction on race, sex, language or
religion.

The provision for equality of women with men has been enshrined in article 8 of the Charter
which lays down that, “the UN shall place no restrictions on the eligibility of men and
women to participate in any capacity and under conditions of equality in its principal and
subsidiary organs”.

Equality of opportunity has been assured to the women in the maters of participation in the
work of the UN. As such, according to article 13 of the Charter, promoting international co-
operation in the economic, social, cultural, educational and health fields and assisting in the
realization of human rights and fundamental freedoms for all without distinction to race,
sex, language or religion.

And article 55 of the Charter also lays emphasize upon the promotion of universal respect
for and observance of human rights and fundamental freedoms for all without distinction on
race, sex, language or religion.

The principle of equality of men and women in the matter of promotion and observance of
human rights and fundamental freedoms has been fully established under the Charter of the
UN. This principle of equality has been further emphasized under various major
international human rights instruments prepared and adopted under the auspices of the
UN.

In addition, the principle of equal rights of men and women has been incorporated in the
UDHR as article 1 states that, “all human beings are born free and equal in dignity and
rights”. Article 2 of the Declaration lays down that, “everyone is entitled to all the rights and
freedom set forth in this declaration, without distinction of any kind”.

As such, the collective rights of women in relation to all these provisions can be summarized
as follows;

The Commission on the Status of Women

It was established as a full fledge commission in June, 1946 to deal with women issues at the
global front. It consists of 45 members out of whom 13 members are taken from African
States, 11 from Asian States, 4 from Eastern European States, 9 from Latin American and
Caribbean States and 8 from Western European and other states.

As UDHR promotes that all human beings are born free and equal in dignity and rights, there
however continued to exist considerable discrimination against women primarily because
women face a multitude of constraints imposed by society not by law.

Thus, the Commission is mainly concerned with the improvement of the status of women in
law, particularly private law and with the advancement of women’s enjoyment of their

47
rights to education, employment and health care. Besides, it has made valuable suggestions
to the Commission on Human Rights and has also performed important functions.

Some of which are;

i. The Convention on the Political Rights of women adopted and opened for signature
and ratifications by the General Assembly on 20th December, 1952,
ii. The Convention on the Nationality of Married women adopted by the General
Assembly in 1957 and
iii. The Declaration on the Elimination of Discrimination against Women by the General
Assembly in 1967.

The Declaration on the Elimination of Discrimination against Women

It was adopted unanimously by the General Assembly on 7th November, 1967as it was felt
that the discrimination against women has continued to exist even after the Charter of the
UN, the UDHR, the ICHR and the progress made in the matter of equality of rights. It consists
of 11 articles which have often been described as the “International Bill of Rights for
women”. It came into force in 1981and as by 5th December, 2013, it has 187 state parties.

Some of the principles of this declaration are;

i. that the discrimination against women, denying or limiting their equality of right
with men is fundamentally unjust and constitutes an offence against human dignity;
ii. that women shall have the same rights as men to acquire change or retain their
nationality and that marriage to an alien shall not automatically affect the nationality
of the wife and
iii. that all provisions in penal code which constitute discrimination against women shall
be repealed.

International Women’s year 1975

The General Assembly adopted a resolution on 18th December, 1972, providing for; that all
the members States and all international organizations should take steps to ensure the full
realization of the rights of women and their advancement on the basis of the declaration on
the Elimination of discrimination against women and the observance of international
women’s year.

It also lays down the following objectives;

i. To promote equality between men and women.

ii. To ensure the full integration of women in the total development efforts.
iii. To emphasize women’s responsibility and important role in economic, social and
cultural development at the national, regional and international levels, particularly
during the 2nd United Nations Development Decades and

48
 iv. To recognize the importance of women’s increasing contribution to the development
of friendly relations and cooperation among States and to the strengthening of world
peace.

World Conferences on women’s rights

It was held under the initiatives of the UN as a flagship programme of International

Women’s Decade. As such, four conferences were held to propagate the importance and
need felt of women’s rights and equality in international communal life.

The 1st conference was held at Mexico City from 19th June – 2nd July 1975. The 2nd conference
was at Copenhagen, Denmark between 14th and 30th July 1980. The 3rd conference was held
at Nairobi from 15th – 26th July 1985 and the 4th and final conference was held at Beijing,
China from 4th – 15th September 1995. Of all these conferences, the Beijing conference is
regarded as the most important and significant one as it states, “Women’s rights as human
rights”.

2.2. Group and individual rights of women

The advent of international conferences with regard to women’s rights in general has also
paved the way for instruments at the global level for groups and individual rights and
freedoms. Optional protocol to the convention on women’s rights was adopted by the
General Assembly on 7th October, 1999 in order to provide for individual complaint system
against sex discrimination, sexual exploitation and any other forms of abuses. It has been
highly supported by many countries in the world which is why, by 5th December, 2013 this
protocol had 104 state parties in the world.

Article 1 of the convention lays down that the women shall be entitled to vote in all
elections on equal terms with men, without any discrimination. Similar rights have been
guaranteed under article 4 of the Declaration on the Elimination of Discrimination against
women which also lays down that all appropriate measures shall be taken to ensure to
women on equal terms with men and without any discrimination the right to vote in all
elections and the right to vote in all public referendum.

Article 2 of the convention on the political rights of women provides that women shall be
eligible for election to all public elected bodies, established by national law, on equal terms
with men and without any discrimination. Similarly, article 4 of the Declaration on the
Elimination of Discrimination against women provides that all appropriate measures shall be
taken to ensure that women shall be eligible for election to all public elected bodies.

Women shall be entitled to hold public office and to exercise all public functions, established
by national law, on equal terms with men, without any discrimination. Similar provisions are
incorporated in the Declaration on the Elimination of Discrimination against women under
its article 4, which provides that all appropriate measures shall be taken to ensure to

49
women on equal terms with men, without any discrimination the right to hold public office
and to exercise all public functions.

For the promotion of equality between men and women granting of legal capacity to
women identical to that of men is not sufficient to eliminate the discrimination against
women. It needs modifications and abolition of existing discriminatory laws, customs,
regulations and practices.

Thus, to accord adequate legal protection to the women against any kind of discrimination it
is necessary on one hand that provisions relating to the principle of equality of men and
women should be incorporated in the constitution and on the other hand, the
discrimination against women should be prohibited through all appropriate measures which
include abolition of discriminatory laws, customs, regulations and practice, as well as the
imposition of sanctions where necessary.

2.3 Rights of Children

Children are the most vulnerable section of our society as they are exploited in various
ways. And so, to protect them from exploitation and provide them opportunities for
harmonious development, the UN has focused its attention on their problems since 1946.
The temporary Social Commission of the Economic and Social Council recommended that
the provisions of the Geneva Declaration of 1924 should be treated as binding on the
peoples of the post 2nd World War period.

Thus, the Geneva Declaration of 1924 was adopted by the General Assembly of the League
of Nations and it incorporated five measures.

i. The child must be given the means requisite for its normal development, both
materially and spiritually.
ii. The child that is hungry must be fed, the child that is sick must be helped, the child
that is backward must be helped, the delinquent child must be reclaimed and the
orphan and the waif must be sheltered and assist.
iii. The child must be first to receive relief in times of distress.
iv. The child must be put in a position to earn a livelihood and must be protected
against every form of exploitation.
v. The child must be brought up in the consciousness that its talents must be devoted
to the service of its fellow men.

Collective, individual and group rights of Children

The collective, individual and group rights of the Children can be classified under the
following headings;

The 1959 Declaration on the Rights of Child

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On the basis of the provisions of Geneva Declaration of 1924, the Temporary Social
Commission prepared in 1950, the draft Declaration on the Rights of Child which was
adopted by the General Assembly of the UN on 20th November, 1959. It contained ten
principles which formed code for the well-being of every child.

Some of these principles are;

i. The child shall enjoy all the rights set forth in this declaration. All children, without
any exception whatsoever, shall be entitled to these rights, without distinction or
discrimination on account of race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status whether of himself
or of his family.
ii. The child shall enjoy special protection and shall be given opportunities and facilities
by law and other means, to enable him to develop physically, mentally, morally,
spiritually and socially in a healthy and normal manner and in the condition of
freedom and dignity. In the enactment of laws for this purpose, the best interests of
the child shall be the paramount consideration and
iii. The child shall be protected from practice which may foster racial, religious and any
other form of discrimination. He/ She shall be brought up in a spirit of
understanding, tolerance and friendship among peoples, peace and universal
consciousness that his / her energy and talents should be directed to the service of
his fellow men.

The Convention on the Rights of Child

It was adopted by the General Assembly on 20th November, 1989 and it came into force on
2nd September 1990. This convention is most widely accepted human rights instruments as it
has been ratified by 192 countries of the world. Only two countries that are America and
Somalia had not ratified so far.

As such, it contains the general principles regarding the improvement in the condition of
children as it has binding obligations unlike the 1959 Declaration and requires the State
parties to comply with the provisions of the convention.

And so, to strengthen further, the implementation of rights recognized in the Convention on
the rights of child, two optional protocols; on the involvement of children in the armed
conflict and on the sale of the children, child prostitution and pornography were adopted.
These Optional protocols entered into force respectively on 12 th February and 18th January,
2002.

In addition, this convention consists of 54 articles and is divided into Preamble and three
parts. The 1st part from articles 1-41 deals with the rights that a child should have. The 2 nd
part from articles 42-45 deals with question of implementation and part 3 from articles 46-
54 includes a number of final clauses.

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The Committee on the Right of the Child

The Secretary-General of the UN in accordance with article 43 convened the first meeting of
the States Parties on 27th February, 1991 at the UN headquarter to elect ten experts to work
as members of the Committee on the Rights of the Child. The Committee so constituted held
its first session from 30th September to 18th October, 1991 at the UN Office at Geneva.

At its first session, officers were elected, the rules of procedure were adopted and the forms
and contents of the reports to be submitted by the States Parties are prescribed for the
guidance of the States Parties. The Committee holds two sessions every year, each of two or
three week duration.

Optional protocol to the Convention on the rights of the child on the involvement of
children in armed conflicts

It restricts the recruitment and use of the children in war. As such, article 1 of this optional
protocol, provides that States Parties shall ensure that members of their armed force under
the age of 18 years do not take a direct part in hostilities.

Article 2 states that a person below the age of 18 years shall not be recruited compulsorily
in the armed force of the States Parties. And article 3 declares that the States Parties are
under an obligation to increase the minimum age of recruitment to at least 16 years.

Optional protocol to the convention on the Rights of the child on the sale of children, child
prostitution and child pornography

It is concerned with the initiatives of the States Parties in tackling the problems of;

i. Traffic in children for the purpose of sale of the children.

ii. Child prostitution and child pornography
iii. Widespread and continuing practice of sex tourism which directly promote the sale
of children
iv. Child pornography and child prostitution
v. Growing availability of child pornography on the internet and other evolving
technologies.

As such, article 2 of the protocol, sale of children means any act or transaction whereby a
child is transferred by any person or group of persons to another for remunerations or any
other consideration. Child prostitution means the use of a child in sexual activities for
remuneration or any other form of consideration.

And Child pornography means any representation by whatever means of a child engaged in
real or simulated explicit sexual activities or any representation of the sexual part of a child
for primarily sexual purposes.

World Summit for Children

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It was convened at the United Nations Headquarter, New York on 30th September 1990. It
was an initiative of Canada, Egypt, Mali, Mexico, Pakistan and Sweden.

It adopted;

The 1990 world declaration on the survival, protection and the Development of Children

It provides that children are entitled to joy and peace, playing, learning and growing which
are necessary for the harmonious development of children. But there are many children
who face various problems and suffer in their very childhood. This declaration lays down 10
point programme for the protection of the rights of children and improvement in their lives.

Some of these programmes are;

i. Promoting earliest ratification and implementation of the Convention on the Rights

of the Child and worldwide propagation about the rights of child.
ii. For a solid national and international effort to enhance children’s health and
sanitation.
iii. For providing protection to children during armed conflicts and
iv. Educating them in the values of peace, understanding and dialogue.

The plan action for implementing the world Declaration on the survival, protection and
development of children in the 1990

It was adopted by the world summit for children together with the world Declaration as it
lays down guidelines for the national governments, international organizations, bilateral aid
agencies, non-governmental organizations and all other sector of society to formulate their
action plan for the implementation of the world declaration.

It insisted upon;

i. Concerted actions on national as well as international level for the achievement of

major goals for the survival.
ii. Protection and development of children by the year 2000.
iii. That the goals must be adopted to the specific conditions of each country to make
them technically valid, logistically feasible and financially realistic and
iv. That the efforts must be made to arouse broad public support and political
commitment necessary for the achievements of the goals.

2.4. Rights of Minorities

At the time, when the final text of the UDHR was being prepared in Paris, in 1948, several
delegations proposed for the inclusion of an article dealing with the protection of minorities.
But it could not be done for obvious reasons. It was argued on behalf of some delegations
that the problem of minorities has raised very complicated issues in various States for the
reason of their specific demographic structure.

53
Since the Universal Declaration was of general character, such countries might not be found
agreeable for the inclusion of provisions on minorities in a declaration which was of
universal scope.

Another and more patent argument raised was that it was almost practically impossible to
evolve any compromise between the New World, who were prepared to assimilate
immigrants in their population and the old world, in which racial and national minorities
existed.

However, it was viewed by some other delegation that provisions relating to the protection
of minorities had already been incorporated in the Declaration, as article 18 of this
declaration provides for freedom of religion, article 19 for freedom of opinion and
expression, article 20 for freedom of assembly, article 26 for the choice of education, article
27 for the right to participate in cultural life and article 2 on non discrimination expressly
protected all minorities.

Thus, the General Assembly, realizing that no uniform solution could be adopted for the
complex and delicate issues of minorities, decided in its Resolution of 10 th December, 1948
not to include in the Declaration the provisions relating to minorities.

Rather, it was entrusted to Economic and Social Council to ask the Commission on Human
Rights and the Sub-Commission on Prevention of Discrimination and Protection of
Minorities to prepare a study reports on the problem of minorities in order to enable the
UN to take effective measures for the protection of racial, national, religious and linguistic
minorities.

As such, the Sub-Commissioning on Prevention of Discrimination and Protection of

Minorities at its 4th session in 1951 prepared a draft article on the rights of persons
belonging to minorities. With certain amendments made by the Commission on Human
Rights at its 8th session in 1952 this draft article was adopted as article 27 of the
International Covenant on Civil and Political Rights.

Consequently, the Sub-Commission prepared two draft resolutions namely, in relation to

the protection of newly created minorities and in relation to the abolition of discriminatory
measures affecting minorities. It was submitted to the Economic and Social Council for its
consideration and the Council in its Resolution of 3rd August, 1953 observed in respect of
protection to newly created minorities that, “in the preparation of any international
treaties, decisions of international organs, or other acts which established new states, or
new boundary lines between States, special attention should be paid to the protection of
any minority which may be created thereby”.

And so, with regards to the second draft, the Council observed that it needs more thorough
study of the whole question and suggested that a suitable definition for the term “minority”
should be formulated. In pursuance of this observation the definition of the term “Minority”

54
states, “a group of citizens of a State, constituting a numerical minority and in a non-
dominant position in that State, endowed with ethnic, religious or linguistic characteristic
which differ from those of the majority of population, having a sense of solidarity with one
another, motivated if only implicitly by a collective will to survive and whose aim is to
achieve equality with the majority intact and in law”.

Collective, individual and group rights of minorities

The collective, individual and group rights of minorities as prescribe by the international
conventions and declaration can be summarized as follows;

The 1992 Declaration on the Rights of persons belonging to National or Ethnic, Religion
and Linguistic Minorities

One of the basic aims of the UN, as proclaimed in the Charter is to promote and encourage
respect for human rights and for fundamental freedoms for all, without distinction as to
race, sex, language or religion. As such, inspired by the provision of the article 27 of
International Covenant on Civil and Political rights, the General Assembly has adopted on
18th December, 1992 the Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities to ensure more effective implementation of
international human rights instruments with regard to the rights of persons belonging to
national or ethnic, religious and linguistic minorities.

It has been emphasized by the General Assembly that the constant promotion and
realization of the rights of minorities as an integral part for the development of society as a
whole and within a democratic framework based on the rule of law, would contribute to the
strengthening of friendship and cooperation among peoples and states.

Some of these rights of the minorities as guaranteed by this declaration are;

i. Right to enjoy their own culture, to profess and practice their own religion and to
use their own language, in private and in public, freely and without interference or
any form of discrimination,
ii. Right to participate effectively in decisions on the national and where appropriate,
regional level concerning the minority to which they belong or the regions in which
they live, in a manner not incompatible with national legislation and
iii. Right to establish and maintain, without any discrimination, free and peaceful
contacts with other members of their group and with persons belonging to other
minorities, as well as contacts across frontiers with citizens of other states to whom
they are related by national or ethnic, religious and linguistic ties.

Thus, persons belonging to minorities may exercise their rights, including those set forth in
the present declaration, individually as well as in community with other members of their
groups, without any discrimination and no disadvantages would result for any person

55
belonging to a minority as the consequences of the exercise or non-exercise of the rights set
forth in the present declaration.

As article 1 of the declaration provides that the States would protect the existence of the
national or ethnic, religious and linguistic identity of minorities within their respective
territories and would encourage conditions for the promotion of that identity and for that
purpose would adopt appropriate legislative and other measures.

As a result, the States would take appropriate measures where required, to ensure that
persons belonging to minorities may exercise fully and effectively all their human rights and
fundamental freedoms without any discrimination and in full equality before the law, to
take measures in the field of education, in order to encourage knowledge of the history,
traditions, language and culture of the minorities existing within their territory.

Persons belonging to minorities should have adequate opportunities to gain knowledge of

the society as a whole and to take measures so the persons belonging to minorities may
participate fully in the economic progress and development in their country.

National policies and programme

It is for the legitimate interests of persons belonging to minorities should be planned and
implemented. Programmes of cooperation and assistance among States should also be
planned and implemented. States should cooperate on questions relating to persons
belonging to minorities, inter alia, exchanging information and experiences, in order to
promote mutual understanding and confidence. States should cooperate in order to
promote respect for the rights set forth in the present declaration.

Nothing in the present declaration would prevent the fulfillment of international obligations
of States in relation to persons belonging to minorities. In particular, States shall fulfill in
good faith the obligations and commitments they have assumed under international treaties
and agreements to which they are parties.

The exercise of the rights set forth in the present declaration would not prejudice the
enjoyment by all persons of universally recognized human rights and fundamental
freedoms. Measures taken by States to ensure the effective enjoyment of the rights set
forth in the present declaration would not prima facie be considered contrary to the
principle of equality contained in the Universal Declaration of Human Right.

Nothing in the present declaration may be construed as permitting any activity contrary to
the purposes and principles of the UN, including sovereign equality, territorial integrity and
political independence of states. The specialized agencies and other organization of the UN
system would contribute to the full realization of the rights and principles set forth in the
present declaration, within their respective fields of competence.

CONCLUSION

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In any modern society, rights and equality plays a vital role towards its progress and
development. A society can therefore be termed as civilized only when equality prevails in
all aspects of life and to all segments of human society.

By suppressing and discriminating a particular section, no society can make progress and
bright about social reforms. Thus, rights, equality and reforms are equally important and
necessary for any individual to prosper in life.

Rights of Women, Children and Minorities has been identified in many societies simply
because, these sections are consider as vulnerable and hence it is the duty of our legislators
to ensure that they are safe and secure.

These rights are not only confined to one nation, but the world at large has recognized and
consented to the various rights of Women, Children and Minorities. As a matter of fact,
every society consist of three elements – Men, Women and Children and so, if women and
children are neglected of their basic rights and freedom than that society can never claimed
to be civilized and progressive.

UNIT 3: EXPLOITATION: ECONOMIC, POLITICAL AND SOCIAL; HUMAN RIGHTS AND

EQUALITY

3.1 Meaning of Exploitation

Most often the word ‘Exploitation’ is used to refer to economic exploitation such as the act
of using another person’s labor without offering them an adequate compensation. And thus,
the concept of economic exploitation is usually based on the “Labor theory of Value”
propounded by Karl Marx.

He argued that it is a relationship in the distribution of economic wealth wherein a worker

does not receive the proper amount of income or entitlement. And so, it is distinguished
from other type of exploitation as it involves the distribution of wealth or income in a
society.

In the context of international front, the International Covenants on Economic, Social and
Cultural Rights and the International Covenants on Civil and Political Rights under the
Universal Declaration of Human Rights, 1948 serves as the primary international legal
source of economic, political and social rights of an individual.

Thus, article 23 of the UDHR declares that, “every individual has the right to work towards
securing a decent standard of life”. And article 8 of the ICESCR states that, “every individual
has the right to join and form trade union and also take collective labor actions”.

These provisions make it clear that human lives are precious and should be protected at any
costs. It is to ensure the well being and betterment of the society so that every life in the

57
world are being protected and secured towards the cause of humanity, peace and
tranquility.

In the words of R. Falk, “Human rights are not merely legal or moral abstractions but
they are embedded in historical process closely intertwined with the on-going anti-
imperial struggle against political, economic and cultural structures of international
dominations”.

It is clear from this point of discussion that, the concept of human rights has been rooted in
our historical evolution of human civilization. As such, some of the economic rights under
ICESCR are;

i. Right to work
ii. Right to adequate food and
iii. Right to Form and Join Trade Union.

These rights are in correspondence against the various forms of exploitation in the world.
For instance, the Right to work has been incorporated in the International Labor
Organization (ILO) which includes the Discrimination (Employment and Occupation)
Convention and Recommendations, 1958, the Employment Policy Convention of 1964, the
Recommendation of 1964 and 1984’s instruments on equality of opportunity and
treatment.

3.2. Economic exploitation

It is form of exploitation where human lives are being tormented and subjected to certain
evil practices such as the exploitation of Indians at the hands of the British rulers and the
Common people in Europe during the Industrial revolution. As such, keeping in view of all
these events and situations, the UNO has formulated certain preventives measures to tackle
and fight back against such practices and intentions in the world.

Thus, the ILO under the directions of the UN has formulated certain provisions in matters of
Right to work. Some of these are; each member shall declare and pursue as a major goal, an
active policy designed to promote full, productive and freely chosen employment. This will
be done with a view to stimulating economic growth and development, raising level of
living, meeting manpower requirements and overcoming unemployment and
underemployment.

Such policy shall take due account of the stage and level of economic development and the
mutual relationship between employment objectives and other economic and social
objectives and shall be pursued by methods that are appropriate to national conditions and
practices.

And each member states of the Discrimination (Employment and Occupation) Convention,
undertakes to declare and pursue a national policy designed to promote equality of

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opportunity and treatment with a view to eliminate discrimination in employment and
occupation.

Discrimination in this context refers to any distinction, exclusion or preference and on the
basis of race, color, sex, religion, political, opinion, national extraction or racial origin which
has the effect of nullifying or impairing equality of opportunity or treatment. Distinction,
exclusion or preferences in respect of particular jobs based on the inherent requirements
thereof are not to be deemed to be discrimination.

In addition, the Right to adequate food includes the Right to a standard of living adequate
for the health and well-being. According to article 25 of the UDHR, everyone has the right to
a standard of living adequate for the health and well-being of himself and of his family,
including food, clothing, housing and medical care and necessary social service and the right
to security in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.

As such, in pursuance of this provision the UN bodies are making efforts to solve the world
food problems, to eradicate hunger and malnutrition, to preserve and enhance the human
environment, to provide shelter for the homeless and to establish a new international
economic order. Thus, article 11 of the ICESCR recognizes the Right of everyone to be free
from hunger as a fundamental right.

The State Parties to the Covenant shall take, individually or collectively, the following
necessary measures so as to prevent form being discriminated. To improve methods of
production, conservation and distribution of food by making full use of technical and
scientific knowledge, by disseminating knowledge of the principles of nutrition and by
developing or reforming agrarian system in such a way as to achieve the most efficient
development and utilization of natural resources. And to ensure an equitable distribution of
world food supplies in relation to need by taking into account the problems of both food-
importing and food-exporting countries.

World Food Conference

It was convened under the auspices of the General Assembly at Rome from 5 th and 6th
November, 1974. It adopted 22 resolutions and the Universal Declaration on the Eradication
of Hunger and Malnutrition. It was affirmed at the conference that the participating States
will make full use of the UN system in the implementation of the declaration and other
decisions taken at the conference. It also called upon all the people of the world to work
together to bring about the end of the age-old scourge of hunger.

It is also mention in the Preamble to the Declaration that the situations of the people
afflicted by hunger and malnutrition arise from their historical circumstances, especially
social inequalities, including in many cases alien and colonial domination, foreign
occupation, racial discrimination, apartheid and neo-colonialism in all its forms, which

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continue to be among the greatest obstacles to the full emancipation and progress of the
developing countries and all the people involved.

As such, it lays down three important prepositions;

i. That every man, women and child has the inalienable right to be free from hunger
and malnutrition in order to develop fully and maintain their physical and mental
faculties
ii. That society today already possesses sufficient resources, organizational ability and
technology and hence the competence to achieve this objective
iii. And that the eradication of hunger is a common objective of all the countries of the
international community, especially the developed countries and others in a position
to help.

Food and Agriculture Organization (FAO) and eradication of hunger

The elimination of hunger and malnutrition have been accepted as an important goal in the
Constitution of FAO and in the resolutions adopted by FAO bodies. It has initiated the
following actions for ensuring world food security.

i. International undertaking on world food security of 1974

ii. The plan of action on world food security of 1979
iii. The agenda for consultations and possible action to deal with acute and large-scale
food shortage of 1981
iv. The world food security compact of 1985

Thus, it represents the international agreements which contain concrete proposals to

achieve progress towards world food security. For instance, the World Food Security
Compact provides that no one can remain indifferent to the fate of those whose daily food
is insecure. It has emphasized that the world food security is the common responsibility of
mankind. For this, an increase in production only, is not sufficient there must be stability in
the flow of supplies and access to food by all, including the poor.

World Food Day

It was first observed on 16th October, 1981 in pursuance of unanimous decision of the FAO
Conference taken on 28th November, 1979. Since then it is being observed every year on 16 th
October. The purpose in observing the World Food Day is to arouse public awareness
concerning the nature and magnitude of the world food problem and to mobilize
continuous support to overcome the problem of widespread malnutrition.

With a view to strengthen cooperation in the struggle against hunger, malnutrition and
poverty, the FAO Conference has appealed to the Governments and Non-Governmental
Organizations to intensify their efforts within the Framework of World Food Day.

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The entire programme of FAO has been structured to achieve this purpose that is abolition
of hunger, malnutrition and poverty. The measures which have adopted for this purpose
include planning and execution of activities in various technical fields pertaining to food
production, conservation, distribution and nutrition.

World Food Programme (WFP)

It is a joint programme of the UN and FAO. Initially, it was designed on experimental basis
for three years, but later on, in 1965 its term was extended and it was made operational
continuously for as long as multilateral food aid remained feasible and desirable. The aim of
WFP is to provide food aid to support developments projects and to meet emergency needs.
The Economic and Social Council and the General Assembly review the operation of the
programme annually.

Beijing Declaration of the World Food Council

The World Food Council adopted the Beijing Declaration in June, 1987. The Member States
have resolved to join together and, in our united strength and interest, to eliminate the
scourge of hunger for ever.

3.3. Social and Political exploitation

The term social and political exploitation are intrinsically used to denote and describe a
situation of living condition. On one hand, social exploitation can be defined as, a trend in
society where people are discriminated on the grounds of racial appearance, color of the
skin, race and gender. For instance, the treatment of the Indians at the hands of the British
rule, the fight of the Negros in America and the Sati system and Polygamy in Indian society.

On the other hand, Political exploitation can be defined as, a system of administration
where a capable and powerful person misuse his power to fulfill his own selfish interest. For
example, the use of muscle power in election, involving militants and using force to elect as
legislators.

Thus, in order to prevent such practices and protect the people from being discriminated,
the Human Rights Commission has incorporated social and political rights under its
Covenants on Economic, Social and Cultural and Covenants on Civil and Political rights.

As such, the Covenants on Civil and Political rights consist of 53 articles and are divided into
six parts. While part I, II and III deals with various rights and freedoms, the other three parts
are devoted with implementation procedures for effective realization of these rights along
with the final clauses.

And thus, article 1 of the Covenant deals with the Right of Peoples to Self-determination and
part II stipulates the rights and obligations of the state parties to the Covenant.

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From this point of observation, some of the political rights as enshrined under this Covenant
are; Right to a fair Trial, Right to take part in the Conduct of Public Affairs, to vote and to be
elected. But these rights are not absolute and are subject to certain limitations. And so, very
often the notion of limitations has been misinterpreted in the form of exploitation from a
capable person.

Thus, political exploitation happens when these rights that are in accordance to the
provisions of Human Rights Commission are not implemented and hence leads to dispute
and moral degradation in the system of law-making process.

Subsequently, the Covenants clearly state that these political rights of an individual are non-
suspend able as they have been identified as ‘Core of essential human rights’. They are
dynamic in nature and therefore, certain additional rights may be included with the passage
of time. Any Sate Party to the Covenant availing itself of the right of derogation shall
immediately inform the other State Parties to the Covenant through the intermediary of the
Secretary-General of the UN, of the provisions from which it has derogated and of the
reasons by which it was actuated.

In addition, some of the Social rights as enshrined in the ICESCR are;

i. Right to Social Security – article 9.

ii. Right to Physical and Mental Health – article 12 and
iii. Right to Form and Join Trade Unions – article 8.

It is thus, significant to note that the ICESCR does not permit a state to derogate from their
obligations even in public emergency which threatens the life of the nation. As such, part II
of the Covenant lay down the undertakings of the State Parties to the Covenant. And article
2 provides that each State Party undertakes to take steps, individually and through
international assistance and co-operation.

The importance of the Covenant lies in the fact that they recognized the inherent dignity
and of the equal and inalienable rights of all members of the human family which is the
foundation of freedom, justice and peace in the world. It is an obligation of the states to
provide these rights to the individuals as they derive from the inherent dignity of the human
person and also because they are essential for the development of one’s personality.

3.4. Human rights and Equality

Concept of equality in the context of human rights

A new Equality Act came into force on 1st October 2010 which brings together over 116
separate pieces of legislation into one single Act. Collectively, they make up a new Act that
provides a legal framework to protect the rights of individuals and advance equality of
opportunity for all. The Act simplifies, strengthens and harmonizes the current legislation to

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provide Britain with a new discrimination law which protects individuals from unfair
treatment and promotes a fair and more equal society.

Thus, the nine main pieces of legislation that have emerged are;

i. The Equal Pay Act 1970

ii. The Sex Discrimination Act 1975
iii. The Race Relations Act 1976
iv. The Disability Discrimination Act 1995
v. The Employment Equality (Religion or Belief) Regulations 2003
vi. The Employment Equality (Sexual Orientation) Regulations 2003
vii. The Employment Equality (Age) Regulations 2006
viii. The Equality Act 2006, Part 2
ix. The Equality Act (Sexual Orientation) Regulations 2007

Relationship between equality and human rights

Since time immemorial, human rights and equality has been closely related with each other.
For instance, eradication of all Forms of discrimination, elimination of hunger and
malnutrition in the world and emancipation of women at the international level bears the
witness. It is however, there are certain elements in the Equality Act of 2010 that did not
came into force, but will devised an action plan for its further implementations at the
international front.

Some of these elements are:

i. Duty to make reasonable adjustments to common parts of leasehold and common

hold premises and common parts in Scotland
ii. Provisions relating to auxiliary aids in schools
iii. Diversity reporting by political parties
iv. Provisions about taxi accessibility
v. Prohibition on age discrimination in services and public functions
vi. Civil partnerships on religious premises

Besides, there are also certain elements of the Act that will not be put into force without the
consent and support of the world leaders. Some of these credentials are;

i. Dual discrimination
ii. Socio-economic inequalities under the Public Sector
iii. Equality Duty

Human rights and equality – Origin and development

The Equality and Human Rights Commission (EHRC) is a non-departmental public body in
England and Wales, established by the Equality Act 2006 which came into force on 1 st

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October 2007. The Commission has responsibility for the promotion and enforcement of
equality and non discrimination laws in England, Scotland and Wales. It took over the
responsibilities of the Commission for Racial Equality, the Equal Opportunities Commission
and the Disability Rights Commission.

It also has responsibility for other aspects of equality law such as age, sexual orientation and
religion or belief. As a national human rights institution, it seeks to promote and protect
human rights in England and Wales. The EHRC has offices in Mancheste, London, Glasgow
and Cardiff. It is a non-departmental public body (NDPB) sponsored by the Government
Equalities Office, part of the Department for Education (DFE). It is separate from and
independent from Government but accountable for its use of public funds. The present
Chairman of the Commission is David Isaac.

Powers and functions

The EHRC derives its powers from the Equality Act 2006, which resulted from the
government White paper, Fairness for All: A New Commission for Equality and Human
Rights. Section 3 states that the EHRC has a general duty to work towards the development
of the society where equality and rights are rooted.

This is taken to mean, people's ability to achieve their potential is not limited by prejudice or
discrimination, there is respect for and protection of each individual's human rights
(including respect for the dignity and worth of each individual), each person has an equal
opportunity to participate in society, and there is mutual respect between communities
based on understanding and valuing of diversity and on shared respect for equality and
human rights.

Section 30 strengthens the EHRC's ability to apply for judicial review and to intervene in
court proceedings, through giving explicit statutory provision for such action. Sections 31
and 32 give the EHRC a new power to assess public authorities' compliance with their
positive equality duties. It can issue "compliance notices" if it finds a public authority is
failing in its duties. Public authorities, importantly, are bound under the Human Rights Act
1998 to act in a way compatible with the European Convention on Human Rights.

The EHRC's role is therefore one of catching matters before they lead to the courts. This may
seem somewhat odd, considering that public sector employers are consistently shown to
have excellent workplace practices. Section 30(3) of the Equality Act 2006 allows the EHRC
to bring judicial review proceedings under the Human Rights Act (HRA) against public
authorities. This is a stronger tool than usual, because the EHRC is not subject to the normal
requirement of being a "victim" of a Human Rights violation.

Under section 24, the EHRC can enter into binding agreements with employers. So for
instance, it can agree that an employer will commit to equality best practice audits or avoid
discriminatory practices that it may identify, in return for not investigating (a bad thing for

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employers' publicity). It can enforce these agreements through injunctions. Section 20 gives
the EHRC the power to carry out investigations when it has the "suspicion" of unlawful
discrimination taking place. Before this had been limited to a requirement of "reasonable
suspicion" which in effect led the predecessors to be much more cautious.

In legal terms this is the difference between an irrationality test and a reasonable man test.
In other words, a court could not declare an investigation unlawful unless it considered that
the EHRC was carrying out an investigation where no reasonable person could have come to
the same conclusion. Before a court could declare an investigation unlawful if it thought
that the proverbial "man on the Clapham Omnibus” would not regard an employer as being
a suspect "discriminator".

There are some complications in relation to the Human Rights Act 1998 with the EHRC's
powers. If it is going to be a "named investigation" (i.e. the employer will probably get
shamed by the publication of its name during an investigation), the EHRC cannot start an
investigation into a public authority for breaches under the HRA. Also, it cannot support
individual cases in tribunals and courts where the issue would concern matters that fall only
under the HRA and not under some pre-existing British equality legislation (like the Sex
Discrimination Act 1975).

Practically this will be problematic, not least because if a claim did exist under the HRA,
British legislation which did not cover such problems would usually be updated to comply
with European Convention rights (these are the ones that the HRA implements). Also, the
line between what is in the European Convention, what is actually covered by domestic
legislation, is difficult to draw.

At any rate, section 28 gives the Minister the power to give authorization for a
discrimination case to be fought if a domestic legislation issue has dropped away, but a
purely human rights issue remains. As a successor body, the EHRC's new powers are not
dramatic. Some people have called for the changes to go further, for instance, to allow the
EHRC to bring proceedings against employers in its own name on any issue (not just human
rights ones).

Although it operates at sub-national level, the EHRC was in 2009 recognized as a member of
the worldwide network of national human rights institutions, securing "A status"
accreditation from the International Coordinating Committee of NHRIs (ICC). This gives the
Commission enhanced access to the Human Rights Council, treaty bodies and other United
Nations human rights bodies.

The EHRC was the second NHRI in the UK, following the creation of the Northern Ireland
Human Rights Commission (NIHRC) in 1999, and the Scottish Human Rights Commission
(SHRC) became the third to gain ICC accreditation in 2010. The three bodies share
representation and voting rights in the ICC and its regional network, the European Group of
NHRIs.

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The EHRC has since 2008 engaged in parallel reporting at examinations of the UK under the
UN and Council of Europe human rights treaties, and in the Universal Periodic Review. It was
designated in 2008 as part of the United Kingdom's independent mechanism for promoting,
monitoring and protecting implementation in the state of the United Nations Convention on
the Rights of Persons with Disabilities (CRPD). (It shares that role with the other two NHRIs
in the UK – the NIHRC and SHRC – and the Equality Commission for Northern Ireland). The
EHRC chairs the CRPD Working Group of the European Group of NHRIs.

CONCLUSION

From the above discussion, it is crystal clear to very right thinking citizen that exploitation
does happens in very given society be it in the form of social, political or economic. These
aspects of life play a pivotal role in determining as to where our society is heading towards
and what the challenges are that awaits us.

The conventions and legal documents that have been adopted so far have proved to the
world there are certain things in life which can only be defeated with sincerity and
dedication.

Economic, social and political exploitation has a long history of evolution and exist even in
our modern world despite of the efforts and counter-measures to eliminate them. It is quite
understandable that to eliminate any forms of exploitation, it requires understanding of the
situations and circumstances in a given society.

Thus, it is paramount in this 21st century that the world leaders as well as our so-called
legislators to be practical in adopting such approaches which is not only encourage but also
appropriately suitable.

UNIT 4: HUMAN RIGHTS AND ENVIRONMENT

4.1. Introduction

In the long evolution of the human race on this planet, a stage has been reached when,
through the rapid acceleration of science and technology, have acquired the power to
transform the environment in countless ways and on an unprecedented scale. Humanity’s
capacity to transform its surroundings, if used wisely and with respect to the ways of nature,
can bring to all communities the opportunity to enhance the quality of life. Wrongly or
heedlessly applied, or applied in iniquitous ways, the same power can do incalculable harm
to human beings and their environment.

As such, there is growing evidence of Man-made disaster in many parts of the earth like,
dangerous levels of pollution in water, air, earth and living beings, destruction and depletion
of irreplaceable life forms and natural resources, major and undesirable disturbances in the

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earth’s climate and protective layers and gross deficiencies, harmful to physical, mental and
social health, in the living and working environments of humans, especially in cities and
industrial complexes.

From the above context, it is important to recognize our dependence on the earth’s natural
resources such as air, water, and land that are fundamental to all life forms and are, much
more than money and economic infrastructure, the base of human survival. To large
numbers of humanity, especially communities that have been termed ‘ecosystem people’
(people depending on the natural environments of their own locality to meet most of their
material needs), natural resources are the base of survival and livelihoods. Their material
and economic sustenance largely depends on these.

4.2. The resolution 16/11

It was adopted by the Human Rights Council on 12th April, 2011 entitled, “Human Rights and
the environment” requested the Office of the High Commissioner in consultation with and
taking into account the views of States Members of the United Nations, relevant
international organizations and inter-governmental bodies, including the United Nations
Environment Programme and relevant multilateral environmental agreements, special
procedures, treaty bodies and other stakeholders, to conduct, within existing resources, a
detailed analytical study on the relationship between human rights and the environment.
The Office of the United Nations High Commissioner for Human Rights would be grateful to
receive any relevant information for the preparation of this study.

In particular, views and information would be welcome on, Steps taken at national and
regional levels, including in the normative, legislative and judicial spheres, to better
understand and address the relationship between human rights and the environment, views
on the relationship between human rights obligations and environmental protection,
including issues related to international cooperation of States in respect to global
environmental issues such as climate change and other key areas of environmental policy
such as biodiversity, ecosystem services and desertification, Relevant national, regional and
international environmental studies and good practices, including examples of how human
rights have been integrated in the design and implementation of environmental and
sustainable development policies and measures, and examples of the human rights impacts
of environmental disasters and of the responses thereto and recommendations for future
areas of work in developing the normative and policy framework for human rights and
environmental protection.

As all human beings depend on the environment in which they live a safe, clean, healthy and
sustainable environment becomes integral to the full enjoyment of a wide range of human
rights, including the rights to life, health, food, water and sanitation. Without a healthy
environment, one cannot fulfill their aspirations or even live at a level commensurate with
minimum standards of human dignity.

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At the same time, protecting human rights helps to protect the environment. When people
are able to learn about and participate in the decisions that affect them, they can help to
ensure that those decisions respect their need for a sustainable environment.

In recent years, the recognition of the links between human rights and the environment has
greatly increased. The number and scope of international and domestic laws, judicial
decisions and academic studies on the relationship between human rights and the
environment have grown rapidly.

Many States now incorporate a right to a healthy environment in their constitutions. Many
questions about the relationship of human rights and the environment remain unresolved,
however, and require further examination.

As a result, in March 2012 the Human Rights Council decided to establish a mandate on
human rights and the environment, which will (among other tasks) study the human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment,
and promote best practices relating to the use of human rights in environmental policy-
making.

Mr. John Knox was appointed in August 2012 to a three-year term as the first Independent
Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and
sustainable environment. His mandate was further extended in March 2015 for another
three years as a Special Rapporteur.

The link between human rights and environment resulted in search of a decent physical
environment which is often considered as precondition for living a life of dignity and worth.
And so, a decent physical environment has to do with protection against, for instance, noise
nuisance, air pollution and pollution of surface waters and the dumping of toxic substances.

4.3. Environmental degradation and human rights

It was first placed on the international agenda in 1972, at the UN Conference on the Human
Environment. Principle 1 of the ‘Stockholm Declaration on the Human Environment’
establishes a foundation for linking human rights and environmental protection, declaring
that man has a ‘fundamental right to freedom, equality and adequate conditions of life, in
an environment of a quality that permits a life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the environment for present and future
generations’. As a result of the 1972 Conference, the United Nations Environment
Programme (UNEP) was set up.

4.4. United Nations Conference on Environment and Development (UNCED)

In 1992, twenty years after the first global environment conference, the United Nations
Conference on Environment and Development (UNCED), also known as the Earth Summit,
took place from 3-14 June in Rio de Janeiro. The Conference aimed to help governments

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‘rethink economic development and find ways to halt the destruction of irreplaceable
natural resources and pollution of the planet’ as, despite international efforts,
environmental degradation had accelerated at an alarming rate.

Delegations from 178 countries, heads of state of 108 countries and representatives of more
than 1,000 NGOs attended the meetings. In Rio, three major agreements were concluded of
which the Rio Declaration on Environment and Development is the most pertinent in the
context of human rights and the environment.

Principle 1 sets out that ‘Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive life in harmony with nature’ and
Principle 4 establishes ‘In order to achieve sustainable development, environmental
protection shall constitute an integral part of the development process and cannot be
considered in isolation from it’.

Principle 10 of the 1992 Rio Declaration was of great importance for the developments that
led to the 1998 Convention on Access to Information, Public Participation in Decision-
making and Access to Justice in Environmental Matters (Aarhus Convention) which entered
into force in 2001.

The Aarhus Convention covers the three themes indicated by its title. Rather than using
rights-oriented language the Convention requires states parties to ‘ensure’ that members of
the public have access to information, are allowed to participate and have access to judicial
review.

Although the term ‘right’ is generally avoided, the objectives, structure and context of the
Aarhus Convention are rights-oriented, drawing on notions of international human rights
law. The Convention is intended to provide for participatory, informational and procedural
rights in environmental matters.

4.5. The World Summit on Sustainable Development (WSSD)

In September 2002, the World Summit on Sustainable Development (WSSD) was held in
Johannesburg. The WSSD plan of implementation shows clearly that respect for human
rights and fundamental freedoms are essential for achieving sustainable development.

The plan stresses the importance of action at the national level for successful development.
Key components of the plan include good governance, the rule of law, gender equality and
an overall commitment to a just and democratic society. Transparency, accountability and
fair administrative and judicial institutions are considered essential for sound national
policies to be carried out.

The plan also emphasizes the importance of promoting public participation in

environmental decision-making, including measures that provide access to information
regarding legislation, regulations, activities, policies and programmes. The plan states that

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women must be involved fully and equally at all levels of the environmental and
developmental process, including those of policy formulation and decision-making.

The human right to a healthy environment is controversial, inter alia, because it has
individual as well as collective aspects. If, for instance, after a period of foreign domination it
emerges that the physical environment of the dominated people has been severely
damaged, it is generally considered logical to allow for a claim to protection (i.e.,
restoration) of the environment not only by individuals, but in equal measure by the
affected population as a whole. In this context, reference can be made to Article 55 of
Protocol I to the 1949 Geneva Conventions.

This article, which relates to the protection of the environment in time of war stipulates:-

Care shall be taken in warfare to protect the natural environment against

widespread, long term and severe damage. This protection includes a prohibition of
the use of methods or means of warfare which are intended or may be expected to
cause such damage to the natural environment and thereby to prejudice the health
or survival of the population.

As such, the International Committee of the Red Cross and the UN Special Rapporteur on
the Adverse Effects of the Illicit Movement and Dumping of Toxic Waste have observed that
the article in question is one whose significance is becoming increasingly salient with the
passage of time, and that efforts should be made to establish how it can be used in a strictly
legal sense.

The mandate of the Special Rapporteur on the Adverse Effects of the Illicit Movement and
Dumping of Toxic Waste

It was adopted with the increasing recognition that illicit traffic and dumping of toxic and
dangerous products and wastes pose a serious threat not only to the environment, but also
to the enjoyment of human rights, such as the right to life, the enjoyment of the highest
attainable standard of physical and mental health, the rights to clean water, food, adequate
housing and safe and healthy working conditions, the right to information, the right to
participation and freedom of association, and other human rights enshrined in the UDHR
and other international instruments.

The mandate of the Special Rapporteur has three components;

Firstly, outlining the elements of the problem and conducting a general survey of issues
involving the human rights of the victims, with special emphasis on difficulties encountered
by African and other developing countries.

Secondly, to identify, investigate and monitor actual situations, specific incidents and
individual cases, including allegations received.

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And thirdly, to produce annually a list of countries and transnational corporations engaged
in the illicit traffic of toxic and dangerous products and wastes to developing countries.
Explicit provisions concerning the environment are limited in international human rights
instruments.

However, the UDHR protects the right to life and a standard of living adequate for health
and well-being, rights from which the right to a healthy environment can be inferred. The
right to life is protected in the ICCPR and the adequate standard of living and highest
attainable standard of health in the ICESCR. Similar provisions are found in other UN
treaties.

The Environmental Stress Crack Resistance (ESCR) committee has addressed the right to a
healthy environment. In General Comment 14 on the highest attainable standard of health,
the Committee established that:-

the right to health embraces a wide range of socio-economic factors that promote
conditions in which people can lead a healthy life, and extends to the underlying
determinants of health, such as food and nutrition, housing, access to safe and
potable water and adequate sanitation, safe and healthy working conditions, and a
healthy environment.

It further elaborated that the right should be interpreted as an ‘inclusive right extending not
only to timely and appropriate health care but also to the underlying determinants of
health, such as access to safe and potable water and adequate sanitation, an adequate
supply of safe food, nutrition and housing, healthy occupational and environmental
conditions’.

In General Comment 15 on the right to water, the Committee addressed ‘environmental

hygiene’, an aspect of the right to health, as encompassing:-

Taking steps on a non-discriminatory basis to prevent threats to health from unsafe

and toxic water conditions. For example, States parties should ensure that natural
water resources are protected from contamination by harmful substances and
pathogenic microbes. Likewise, States parties should monitor and combat situations
where aquatic eco-systems serve as a habitat for vectors of diseases where-ever they
pose a risk to human living environments.

International Labour Organization 169 for Indigenous and Tribal Peoples Convention

It contains a provision on environmental protection. Article 7 of the Convention provides

that, indigenous peoples shall have the right to decide their own priorities for the process of
development as it affects their lives, beliefs, institutions and spiritual well-being and the
lands they occupy or otherwise use, and to exercise control over their own economic, social

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and cultural development. Governments shall take measures to protect and preserve the
environment of the territories they inhabit.

In the regional systems, Article 24 of the African Charter and Article 11 of the Protocol of
San Salvador explicitly address the right to a healthy environment. As such, article 24 of the
African Charter states that ‘all peoples shall have the right to a general satisfactory
environment favorable to their development’. The Charter also sets out in its article 21 that,
‘all peoples shall freely dispose off their natural resources’.

And article 11 of the Protocol of San Salvador deals with the ‘right to healthy environment’
and states that, ‘everyone shall have the right to live in a healthy environment and to have
access to basic public services and requires that states shall promote the protection,
preservation and improvement of the environment’. Although provisions regarding the
environment are scant, human rights cases related to the environment are being brought to
the international and regional supervisory bodies.

The Human Rights Committee has dealt with some cases where the environment has played
a role. For instance, In Bordes and Temeharo vs France it was alleged that foreseen nuclear
testing would violate the applicants’ right to life and family. In H.P. Etal. vs Canada,
violations were alleged of the right to life because of the environmental impact of nuclear
stockpiles situated close to housing (inadmissible because of non-exhaustion of domestic
remedies).

Like the ICCPR, the European Convention does not contain provisions on the environment
but the European Court has decided some cases where the environment has come into play.
For instance, in López Ostra vs Spain, the Court held that Article 8 of the European
Convention on Human Rights (ECHR) had been violated because the applicant had not been
indemnified by the state for damage resulting from environmental pollution.

A comparable issue – damage resulting from mismanagement of an urban waste dump was
raised in Oneryildiz vs Turkey. In Zander vs Sweden, water contamination was found to be a
threat to security of person where an important step in broadening the conception of Article
6(1) of the ECHR to include environmental rights.

In Tãtar vs Romania, the Court found a violation of the right to respect for private and
family life on account of the Romanian authorities’ failure to protect the right of the
applicants, who lived in the vicinity of a gold mine, to enjoy a healthy and protected
environment.

Thus, the Court observed that ‘pollution could interfere with a person’s private and family
life by harming his or her well-being’ and that, ‘the State had a duty to ensure the
protection of its citizens by regulating the authorizing, setting-up, operating, safety and
monitoring of industrial activities, especially activities that were dangerous for the
environment and human health’.

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In Hatton et al. vs The United Kingdom and Moreno Gomez vs Spain, the issue raised
concerned over violation of the right to privacy and family resulting from noise pollution
from night air-traffic. In Guerra et al. vs Italy, the state was found to have violated the right
to privacy and family by not providing information on environmental pollution that would
have allowed the applicants to assess health risks they were facing by living in a certain
area. Similarly, in Hamer vs Belgium, the Court found that the right to property was
permissibly restricted because of the legitimate aim of environmental protection.

Besides, the Inter-American Commission has, while reviewing the implications of

environmental degradation for human rights noted that:-

The American Convention on Human Rights is premised on the principle that rights
inherent in the individual simply by virtue of being human. Respect for the inherent
dignity of the person is the principle which underlies the fundamental protections of
the right to life and to the preservation of physical well being. Conditions of severe
environmental pollution which may cause serious physical illness, impairment and
suffering on the part of the local populace, are inconsistent with the right to be
respected as a human being.

The majority of cases involving the right to a healthy environment in the Inter-American
system are based in communal or indigenous rights rather than individual rights. The first
environmental case was brought on behalf of the Yanomani Indians of Brazil, where the
Commission found that the state had violated its responsibility to provide adequate
protection for the health and safety of the Yanomani in the construction of a highway and
by neglecting to address hostilities between mineral prospectors and the Indians. The
Commission found violations of the right to life, liberty and security, the right to residence
and movement and the right to health under the American Declaration.

And also, in Mayagna (Sumo) Awas Tingni Community vs Nicaragua, concerned

government-sponsored logging on indigenous lands without prior consultation with the
community. The Commission found a violation of the right to recourse and the right to
protection of private property. Similarly, in Dann vs The United States, concerned members
of the Shoshone Tribe in Nevada who alleged that their rights to equal protection before the
law, right to religious freedom and worship, right to family protection, right to work with fair
remuneration, right to a fair trial and right to property under the American Declaration had
been violated because of, inter alia, the state’s appropriation of their lands through an
unfair procedure and permitting gold prospecting on traditional lands. As such, the
Commission found a violation of the right to property, fair trial and equality before the law.

Besides, in Maya Indigenous Communities of the Toledo District vs Belize, concerned lands
traditionally used and occupied by the Maya people. They alleged that by granting logging
and oil concessions in and otherwise failing to adequately protect those lands, failing to
recognize and secure their territorial rights in those lands, and failing to afford them judicial

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protection of their rights and interests in the lands on account of delays in court
proceedings instituted by them, the state had violated several rights under the American
Convention on Human Rights (ACHR).

According to the Petitioners, the state’s contraventions had impacted negatively on the
natural environment upon which they depended for subsistence, had jeopardized the Maya
people and their culture and threatened to cause further damage in the future. The
Commission held that the state had violated the communal property rights of the Maya
people by, inter alia, failing to put into place adequate safeguards and mechanisms, to
supervise, monitor and ensure that it had sufficient staff to oversee that the execution of
the logging concessions would not cause further environmental damage to Maya lands and
communities.

In Reyes et al. vs Chile, the Inter-American Court ruled that Chile had violated the right to
freedom of expression which includes the right to seek, receive and impart information by
denying the applicants information regarding a government approved forestry project and
its potential environmental impact. The Court also found a violation of Article 25 as Chile
had failed to guarantee effective judicial recourse. And in Saramaka people vs Surinam,
concerning a damming project which displaced the Saramaka and destroyed sacred sites, as
well as mining concessions which polluted traditional lands and water resources. The Court
held that Surinam had violated the right to property and procedural rights, along the same
lines as the Commission in the Awas Tigni case.

The African Commission took a landmark decision in 2001 with regard to the right to a clean
environment. In a case where it was alleged that the Nigerian government had contributed
to gross violations of human rights through the actions of its military forces and unsound
environmental management related to exploitation of the Niger Delta, the Commission
found that the Nigerian government had violated, inter alia, the right to a clean
environment by directly contaminating water, soil and air, which harmed the health of the
Ogoni people living in the area, and by failing to protect the community from the harm
caused by oil companies.

The Commission emphasized that the right to a clean and safe environment is critical to the
enjoyment of economic, social and cultural rights. This right, it was held, requires a state to
take reasonable measures to prevent pollution and ecological degradation, to promote
conservation and to secure an ecologically sustainable development and use of natural
resources.

The duty to respect the right to a clean environment largely entails non-interventionist
conduct from the state, such as refraining from carrying out, sponsoring or tolerating any
practice, policy or legal measures violating the integrity of the individual. The Commission
stated that compliance with the right to a clean environment must include undertaking or at
least permitting independent scientific monitoring of threatened environments, and

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requiring and publicizing environmental and social impact studies prior to any major
industrial development.

This right also requires that appropriate monitoring is undertaken, information is

disseminated to the communities exposed to hazardous materials, and that meaningful
opportunities are guaranteed for individuals to be heard and to participate in development
decisions affecting their communities.

Thus, there are three main dimensions of the inter-relationship between human rights and
environmental protection, they are;

1. the environment as a pre-requisite for the enjoyment of human rights (implying that
human rights obligations of States should include the duty to ensure the level of
environmental protection necessary to allow the full exercise of protected rights);
2. Certain human rights, especially access to information, participation in decision-
making, and access to justice in environmental matters, as essential to good
environmental decision-making (implying that human rights must be implemented in
order to ensure environmental protection); and
3. The right to a safe, healthy and ecologically-balanced environment as a human right
in itself.

CONCLUSION

As discussed above, human rights and environment are closely related to one another, for
example human rights are based on the principle of human well-being where life of an
individual has been explicitly safeguard and so, if the environment where every living
organism tends to co-exist and survive, gets polluted and become harmful for surviving than
it will also amounts to violations of human rights.

Thus, human rights and environment are like the opposite sides of the same coin. None can
survive without the other as they are inter-related and inter-connected.

The conventions and documents set aside by the United Nations has been the driving force
behind all the international law that pertains to environmental laws and regulations. It is
thus evident that safeguard to environment is safeguard to human rights.

UNIT 5: PROMOTION AND PROTECTION OF HUMAN R IGHTS AT THE INTERVAL ON INDIA

The Common Law of England with its statutory modifications and the principles of courts of
equity commenced its applications in the 17th century to British subjects in small areas of
certain parts known as the Company’s factory. These factory establishments thus became
the nurseries of the English law in India which in course of time brought about tremendous

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influence over the laws and the system of administration of justice in the whole of this sub-
continent.

The influence of the English law has largely been because of the fall of Muslim rule which
made the massive structure of Indian Law and jurisprudence resemble the height, the
symmetry and the grandeur of the common and statute law of England. The status of
Human Rights in Indian context will be examined in two phase namely the Pre-
independence India and the Post-independence India.

5.1. Human rights in Pre-independence India

The British made India as their colony and used and abused its natural resources and human
resources for their nefarious ends. The First War of Indian Independence (Revolt of 1857)
triggered off with the so called ‘Sepoy Mutiny’ when sepoys were required to bite the
cartridges greased with fat of the cows and swine with their mouth before loading. This
caused resentment only not among the sepoys but also the common man being a very
sensitive issue.

The basic civil liberties and human rights were not available to the Indians during the British
regime. The First War of Independence (Popularly known as Gaddar) of 1857 was the
expression of the frustration of Indian people.

Thus, the 2nd half of the 19th century may be described as statutory period in which many
enactments and legislations were made. Between 1860 and 1898 many repeals and
replacements were made in the Criminal Procedure until this code was made exhaustive by
the Code of Criminal Procedure, 1898. The first Code of Criminal Procedure was enacted in
1861 which was finally replaced by the new Code of Criminal Procedure in 1898.

As such, another important provision enumerated in the Section 491, Cr. P.C of 1898 was
that the High Court was also empowered to issue Writ of Habeas Corpus for production of
the person detained in public or private custody before the High Court. The High Court could
issue the direction, ‘that a person illegally or improperly detained in public or private
custody within such limits be set at liberty’. This was one of the important rights in the
history of Criminal jurisprudence.

In addition, the establishment of the Indian National Congress in 1885 and the avowed
objective of several national organizations including that of Indian National Congress in the
beginning were only to secure some civil liberties and human rights of non-discrimination on
the grounds of race, color, or sex in the matter of access to public place, offices and services.
So the national struggle for freedom, from its earlier stages, in its practical manifestation
was largely directed against racial discrimination and to secure basic human rights for all
people.

The Constitution of India Bill, 1895

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It was prepared by the Indian National Congress, also known as “Home Rule Document”
talked about a Constitution guaranteeing everyone of the citizen basic Human Rights like
freedom of expression, inviolability of one’s own home, right to property, equality before
law and right to freedom. Article 15 of this Bill, inter alia, contained the right of free speech
and expression.

The Bill also had provisions guaranteeing Free State Education and Compulsory Primary
education. These demands were not fulfilled by the British Government but it was certainly
a sound step taken by Indian National Congress.

Thus, in 1918 the Indian National Congress, at its Bombay session, demanded a Declaration
of Rights of the People of India, including equality of Indians before the law, subject of
which only the Montague-Chelmsford proposals could be accepted by the Congress.

Mrs. Annie Besant drafted Common Wealth of Indian Bill of 1925, which was adopted at the
National Convention and presented to the House of Common by Mr. Lansbury. The Bill
sought to achieve self-governing dominion status for India except Foreign and Defence
Affairs.

Article 4 of the Bill entitled, “Declaration of Rights” contained the following provisions;

I. Liberty of person and security of his dwelling and property;

II. Freedom of conscience and the free profession and practice of religion;
III. Free expression of opinion and the right to assembly peacefully and without arms
and of forming association or unions;
IV. Justice and the like;
V. Equality before the law;
VI. Irrespective of considerations of nationality and equality of the gender.

The idea of Fundamental or Human Rights was cherished long ago in India. Congress party
passed a resolution in 1927 to draft Constitution of India under the Chairmanship of Moti Lal
Nerhu who submitted his report on 10th August, 1928 which is popularly known as “Nehru
Report”. The Report emphasized that our first case should be to have fundamental rights
guaranteed in a manner which will not permit their withdrawal under any circumstances.

As such, the Rights emphasized by the Moti Lal Committee Report were;

1. Personal liberty, inviolability of dwelling place and property

2. Freedom of conscience and of profession and practice of religion subject to public
order and morality.
3. Right to free expression of opinion and to assemble peaceably and without arms and
to form association and unions subject to public order and morality.

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 4. Right to free elementary education and in the matter of admission into any
educational institution maintained and aided by the State without distinction of
caste or creed.
5. Equality for all citizens before the law and in civil rights.
6. Right to every citizen to the writ of Habeas Corpus.
7. Protection in respect of punishment under ex post facto law.
8. Non-discrimination against any person on grounds of religion, caste or creed in the
matter of public employment, office or power or honor and in the exercise of any
trade or callings.
9. Equality of Rights to all citizens in the matter of access to and use of public roads,
wells and other places of public resort.
10. Freedom of combination and association for the maintenance and implementation
of labor and economic conditions.
11. Right to keep and bear arms in accordance with Regulations and
12. Equality of Rights to men and women as citizens.

The Simon Commission has rejected the demand for inclusion of Fundamental Rights in the
future Constitution of India, therefore, in 1930, Congress Working Committee gave a call for
the attainment of Purana Swaraj.

The British Government adopted more repressive measures. Karachi session of the Congress
in 1931 adopted a detailed programme of Fundamental Rights and Duties and Economic and
Social Change.

5.2. Human in Post-Independence India

India got her independence on 15th August, 1947 and the Constituent Assembly
accomplished the herculean task of drafting the Constitution which was enacted and
adopted by the people of India on 26th January, 1950. And so, the Indian Constitution (1949)
was adopted even before the Universal Declaration (1950), but it was adopted at a time
when the deliberations for Universal Declaration were in the air, so that the framers of the
Indian Constitution were influenced by the concept of human rights, and already
guaranteed most of the human rights which later came to be embodied in the International
Covenant in 1966.

The Constitution of India came into force on 26th January, 1950 and the dawn of the day
brought a Sovereign, Socialist, Secular, Democratic Republic with concepts of Justice,
Liberty, Equality, Dignity and Fraternity. As, such the Preamble of the Indian Constitution
has set forth the basic objectives to be achieved by the Constitution.

It may be read as given ahead:-

We, the People of India, having solemnly resolved to constitute India into a
Sovereign, Socialist Secular Democratic Republic and to secure to all its citizens:

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 Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and opportunity; and to promote among them all;
Fraternity assuring the dignity of the individual and the unity and integrity of the
Nation;

In our Constituent Assembly this 26th day of November, 1949, do hereby adopt, enact and
give to ourselves this Constitution.

The Preamble itself is very clear. Human Rights may be regarded to be the offspring of the
Preamble. It has been incorporated in Indian Constitution in the guise of Fundamental
Rights and the Directive Principles of State Policy.

They are the rights which are possessed by every human being, irrespective of his or her
nationality, race, religion or sex simply because he/she is a human being. They are thus,
those rights which are inherent in our nature and without which we cannot live as human
beings.

Human rights and fundamental freedoms allow us to fully develop and use our human
qualities, our intelligence, our talents and our conscience and to satisfy our physical,
spiritual and other needs. They are based on mankind’s increasing demand for a life in
which the inherent dignity and worth of each human being will receive respect and
protection.

They are sometimes called fundamental rights or basic rights or natural rights. As
fundamental or basic rights they are the rights which cannot, rather must not, be taken
away by any legislature or any act of the government and which are often set out in a
Constitution.

Fundamental rights are the modern name for what have been traditionally known as natural
rights. The inclusion of fundamental rights in Indian’s Constitution had its beginning in the
forces that operated on the national struggle during the British rule.

They have their roots in the history of the last several centuries. This is a co-incidence that
when the Universal Declaration of Human Rights was being processed by the United
Nations, the framers of the Indian Constitution were scaling the Constitution of various
countries.

The Declaration of Human Rights certainly affected their minds to incorporate all those
rights in the Constitution of India; therefore, the Constituent Assembly incorporated the
substance of most of universal human rights in Indian Constitution in the form of
Fundamental Rights and Directives Principles of State Policy.

Thus, it becomes very clear from the Preamble and the Directive Principles of the State
Policy that the objective of the framers of the Constitution was to establish a Welfare-Sate.

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The Constitution at the same time has given full importance to the individual but has
endeavored to harmonize the individual interest with the paramount interest of the
community. The State has got full control and authority under the Constitution to impose
reasonable restrictions on the freedom guaranteed in the public interest.

The Constitution of India reflects the tendency of modern civilization to shift the emphasis
from the individual to the community. The State has been empowered to impose
reasonable restrictions on the enjoyment of fundamental rights guaranteed under the
Constitution in the interest of the State or public order or morality or of the general public.

Further, the moment even this regulated freedom of the individual becomes incompatible
with, and threatens the freedom of the community, the State is given power by article 21 of
the Constitution to deprive the individual of his life and personal liberty in accordance with
the procedure established by law, subject to the provision of article 22.

National Human Rights Commission

The Union of India promulgated the protection of Human Rights Ordinance, 1993 through
the President of India. Later on, the Parliament converted the Ordinance into the Protection
of Human Rights Act, 1993 and through this Act repealed the Ordinance aforesaid.

This Act has been brought to provide for the constitution of a National Human Rights
Commission, State Human Rights Commissions and Human Rights Courts for better
protection of human rights and the matters connected therewith. It has been enacted as Act
No. 10 of 1994, though named or entitled as the Protection of Human Rights Act, 1993.

Thus, when it came into force on 28th September, 1993, it defines the concept of Human
Rights under section 2 (d) as, “the rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the international Covenants and
enforceable by Courts in India”.

And by International Covenant, it means the International Covenant on Civil and Political
Rights and the International Covenants on Economic, Social and Cultural Rights adopted by
the General Assembly of the United Nations on 16th December, 1966”.

And so, mere declaration of rights will not be of much use unless there is proper machinery
for enforcement. Human Rights Commissions are established at the National level and at
the State level in India with a view to see that those who violate Human Rights are brought
to book, people are made aware of their rights and their property and ignorance are not
exploited.

It is also the endeavor of these Commissions to see that adequate steps are taken at the
appropriate time for all to be given the opportunity for a proper blossoming of the human
personality.

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The Protection of Human Rights Act, 1993

It provides that, “the Central Government shall constitute a body to be known as the
National Human Rights Commission (NHRC) to exercise the powers conferred upon and to
perform the functions assigned to it under the Act”. The National Human Rights
Commissions is headed by a Chairperson and five other members.

The Constitution of the Commissions speaks volume of the Status and Stature of its
members. It comprises of a Chairperson who has been a Chief Justice of the Supreme Court,
one member who is or has been a Judge of the Supreme Court, one member who is or has
been the Chief Justice of a High Court and one member to be appointed from amongst
persons having knowledge of or practical experience in matters relating to human rights.

As such, the Chairpersons of the National Commission for Minorities, the National
Commission for Scheduled Castes and Scheduled Tribes and the National Commission for
Women shall be deemed to be members of the Commission for the discharge of various
functions assigned to it by the Act. It also provides for a Secretary General who shall be the
Chief Executive Officer of the Commission to discharge such functions as may be delegated
to him.

The Headquarter of the Commission shall be at Delhi and it can establish offices at other
places in India with the previous approval of the Central Government. The Chairperson and
other members are to be appointed by the President by warrant under his hand and seal.
Every appointment however, shall be made on recommendations of a committee
comprising of the Prime Minister as Chairperson, Speaker of the House of People, Home
Minister, leader of the Opposition in the House of People, leader of opposition in the
Council of States and Deputy Chairperson of the Council of States.

No sitting Judge of the Supreme Court or sitting Chief Justice of High Court can be appointed
to the Commission except after consultation with the Chief Justice of India.

The term of office of Chairperson is 5 years or 70 years of age whichever is earlier and
members can be appointed for 5 years and they are eligible for re-appointment for another
term of 5 years. On ceasing Chairman or member of Commission are ineligible for further
employment under Central or State Government.

The Act also makes a provision for removal of Chairperson or member of the Commission on
grounds of proved misbehavior of incapacity by an order of the President after an inquiry is
held by the Supreme Court.

Besides, the President can also remove the Chairperson or member as the case may be,
who;

a. is adjudged an insolvent or

81
 b. engage during his term of office in any paid employment outside the duties of his
office or
c. is unfit to continued in office by reason of infirmity of mind or body or
d. is of unsound mind and stands so declared by a competent court or
e. is convicted and sentenced to imprisonment for an offence which in the opinion of
the President involves moral turpitude.

Functions and powers of the National Human Rights Commissions

The National Human Rights Commissions has been established to discharge multifarious
functions and it has been envisaged as an activist body for creating a human right culture in
the country and to create awareness among people about human rights in general. The
functions of Commissions are very vast and enlisted in section 12 of the Protection of
Human Rights Act, 1993.

Some of these functions are;

1. Inquire suo Moto or on a petition presented to it by a victim or any person on his

behalf into complaints of Violation of human rights or abetment thereof or
negligence in the prevention of such violation by a public servant.
2. Visit and intimation of the State Government any jail or any other institution under
the control of the State Government, where persons are detained or lodged for
purposes of treatment, reformation or protection to study the living conditions of
the inmates and make recommendations thereon.
3. Review the safeguards by or under the Constitution or any law of the time being in
force of the Protection of human rights and recommend measures for their effective
implementations.
4. Spread human rights literacy among various sections of society and promote
awareness of the safeguards available for the protection of these rights through
publications, the media, seminars and other available means.
5. Undertake and promote research in the field of human rights.

The Commission has been vested with widespread functions to protect and propagate
human rights and to eradicate all types of tyranny and injustice. The Commission has
functional autonomy to further cause of human rights.

Thus, the NHRC while analyzing functions of the Commission observed that, “the complexity
and variety of human rights issues facing our nation has required another kind of discipline
of the Commission in its effort to maximize the impact of its activities.

While seeking to promote and protect all of the Fundamental Rights enshrined in the
Constitution or covered by the treaties to which India is a party, the Commission has

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nevertheless considered it essential to focus at least initially or certain key human rights
issues that are of very highest concern to the people of this country. This also required the
setting of priorities, particularly in respect of its suo mto activity even while recognizing that
all human rights are important.

The Commission has the powers of a Civil Court in the matters of summoning and enforcing
attendance of witnesses and examining them on oath, discovery and production of any
document, receiving evidence on affidavits, requisitioning public records or copies thereof,
issuing commissions for examination of witnesses and documents.

It may require any person to furnish any information sought by it which is useful or relevant
or subject-matter of the inquiry and subject to the law of privilege is legally bound to furnish
such information. Refusal to do so attracts punishment under section 176 and 177 of the
Indian Penal Code, 1860.

The Commission or any Gazette officer authorized by it may enter any building or place
where it has a reason to believe that any document relating to the subject-matter of inquiry
may be found, may seize any such document or take extract or copies there from subject to
the provisions of section 100 of Code of Criminal Procedure, 1973.

The proceedings before the Commission shall be deemed to be judicial proceedings for the
purpose of considering for punishment for false evidence or using evidence known to be
false. The Commission for the purpose of investigation may utilize service of any officer or
investigation agency of Central Government or the State Government with the concurrence
of respective government.

The Protection of Human Rights Act, 1993 provides procedure for inquiring into the
complaints of Human Rights and the Commission while inquiring may call for information or
report from the Central Government or any State Government of any other authority or
organization subordinate to it within specified time.

The Commission may proceed to inquire into the complaint suo Moto if information or
report is not received in time stipulated by the Commission or on receipt of information or
report the Commission is satisfied that no further inquiry is required or it may not proceed
with the complaint and inform the complainant accordingly. The Commission if it considers
necessary having regard to the nature of complaint may initiate an inquiry.

Thus, the Commission may take the following steps under Section 18 on completion of any
inquiry held under the Protection of Human Rights Act, 1993;

1. Where the inquiry discloses, the Commission of violation of human rights or

negligence in the prevention of human rights by a public servant, it may recommend
to the concerned Government or Authority the initiation of proceedings for

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 prosecution or such other action as the Commission may deem fir against the
concerned person or persons.
2. Approach the Supreme Court or High Court concerned for such directions, orders or
writs as that court may deem necessary.
3. Recommend the concerned Government or Authority for the grant of such
immediate interim relief to the victim or the members of his family as the
Commission may consider necessary.
4. The Commission shall send a copy of its inquiry report together with its
recommendations to the concerned government or authority and the concerned
government or authority shall, within a period of one month or such further time as
the Commission may allow, forward its comments on the report including the action
taken or proposed to be taken thereon, to the Commission.

The Protection of Human Rights Act, 1993 provides for a separate procedure to deal with
the complaints of violation of human rights by members of the armed forces. The
Commission can seek a report from the Central Government, either on its own motion or on
receipt of a petition.

The Commission on receipt of report may either not proceed with the complaint or as the
case may be make its recommendations to that Government. The Government is required
to inform the Commission of the action taken on recommendations within three months or
such further time as the Commission may allow.

The Chairperson of NHRC issued letter to Chief Minister requesting the latter to issue
directions, through the Directors General of Police to all the Police Stations, on the
procedures they should follow in regard to cases where death has been caused in
encounters with the police.

The Commission intends to monitor this matter most carefully and it will, if necessary,
designate specially selected representatives to assist it in this task. The Commission
considers the practice of fake encounters to be unconscionable. It cannot permit the right to
private defence.

Spelt out in Chapter IV of the Indian Penal Code, to be manipulated to justify fake
encounters or the procedures of section 46 (3) of the Code of Criminal Procedure, 1973 to
be subverted to serve such an end. The NHRC which came into being in 1994 has also been
playing a pivotal role in developing a culture for human rights in the country.

It has built an edifice (structure) of human rights accountability on the foundation of

autonomy and transparency. An equally significant and domestically more important
accomplishment of the NHRC is the burial of the Terrorist and Disruptive Activities
(Prevention) Act (TADA), enacted in 1985, was meant to deal with the insurgency situation
in Punjab and Jammu & Kashmir and was to be a temporary measure.

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Investigation of human rights violation and redressing the wrongs including compensation
for deprivation of rights, systematic reforms of police and prisons, institutionalization of
training in human rights for the security forces, spread of awareness of the importance of
human rights and sensitization of the public and the law enforcement agencies in the matter
have been engaging the attention of the NHRC.

Less tangible but equally important is the change in the mind set of at least the thinking
sections of the population and the leadership of the security forces including the police,
brought about as a result of the activities and reports of the Commission.

State Human Rights Commission

According to Sections 21-29 of the Protection of Human Rights Act, 1993, the constitution of
State Human Rights Commissions in the States to perform the functions for protection of
human rights is provided. The State Human Rights Commission is to be constituted on the
lines of NHRC and has been conferred with certain powers under Chapter V of the Act.

It is headed by a Chairperson who has been a Chief Justice of a High Court, another member
who is or has been a District Judge in that State and two members are to be appointed from
amongst persons having knowledge or practical experience in matters relating to human
rights.

The method of appointment, removal and terms of office of Chairperson and members of
SHRC are identical to NHRC. As such, the Secretary is the chief executive officer of the State
Commission and discharges delegated functions.

The Headquarter of State Commission is to be specified by State Government by a

notification. A State Commission may inquire into the violations of human rights only in
respect of matters related to any other entries enumerated in list II and III of the 7 th
Scheduled of the Constitution except that in respect of the State of Jammu & Kashmir, the
State Commission can enquire only in relation to the entries given in list III of the
Constitution applicable to that State and in respect of matters in relation to which the
legislature of the State has power to make laws.

If any matter is being inquired into by NHRC or any other Commission constituted under any
law for the time being in force, the State Commission shall not inquire into such matter.

Under section 22 of the Act, the appointment of Chairperson and other members of the
State Commission have been provided. The Chairperson and other Members shall be
appointed by the Governor by warrant under his hand and seal. Section 23(1) of the Act,
provides for the removal of the Chairperson or any other member of the Commission only
on the grounds of proved misbehavior or incapacity.

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And finally, section 24 of the Act, provides for the terms of office for the Chairperson and all
the Members of the Commission. Whereas, the Chairperson to the Commission enjoys a
term of five years or until he attains the age of 70 years whichever is earlier.

And the Members shall hold office for a term of five years and shall be eligible for re-
appointment for another term of five years. It has also been provided under section 26 of
the Act that the salaries and allowance payable to and other terms and conditions of service
of the Members shall be such as may be prescribed by the State Government.

The SHRC is required to submit its annual report to the State Government under section 28
of the Act and on any urgent or important matter it may submit special reports also. The
provision relating to procedures of the Commission, functions, powers, investigation, inquiry
into complaints and follow up action on inquiries are common for NHRC and SHRC.

The State are now rapidly constituting SHRC and the States of the West Bengal, Himachal
Pradesh, Madhya Pradesh, Assam, Tamil Nadu, Uttar Pradesh, Jammu & Kashmir, Kerala,
Andhra Pradesh and Punjab have already constituted Human Rights Commissions. The
Protection of Human Rights Act, 1993 is however, silent as regards to setting up Human
Rights Commission in Union territories.

Human Rights Courts

The Protection of Human Rights Act, 1993 under its section 30 provides for the setting up of
Human Rights Courts for the purpose of speedy trial of the offences arising out of the
violation of human rights. For the said purpose the State Government may with the
concurrence of the Chief Justice of the High Court, by notification specifies for each district a
court of session to be Human Rights Court.

The provisions of this section are not applicable if a court of session is already specified as a
special court or a special court is already constituted, for such offences under any other law
for the time being in force.

There is also a provision for appointment of a public prosecutor for conducting cases in the
Human Rights Court. The NHRC has recommended the establishment of Human Rights Court
in every State. Assam and Sikkim have established separate Human Rights Courts.

As such, under section 31 of the Act, the Sates have the power to appoint a Special
Prosecutor who should be an advocate and has been practicing as an Advocate for not less
than 7 years. Section 37 of the Act, also lays down the grounds norms for the appointment
of a Special Investigation Team for the purposes of investigation and prosecution of offense
arising out of violation of human rights.

And finally, section 38 of the Act protects the Governments, Commissions, their members or
any person acting under the directions of a Government or a Commission, in respect of
anything which is done in good faith or intended to be done in pursuance of this Act of any

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rules made under the Act or in respect of the publication by or under the authority of the
Central Government, State Government or Commission or the State Commission of any
report, paper or proceedings.

CONCLUSION

From the above discussion, it is quite evident that the idea of Human Rights has its roots in
India even before the coming of British administration. There is no doubt that the British
rulers have tried and succeed in bringing numerous administrative measures so as to ensure
equal respect for all individuals. The Constitution of India Bill, the Indian National Congress
and the Code of Criminal Procedures have brought about tremendous changes in the
societal life of the Indians.

The Pre-independent period was such a phase in India history, where life was governed by
social norms and culture which were at some point proved to be discriminatory law. With
the coming of the British company, many such norms were abolished so as to ensure that
human life and dignity are safe and secured before the law of the land.

Consequently, when India became an independent nation, the founding fathers were fully
aware of the fact that there are diverse cultures co-existing in the country and so, the need
of the hour was to adopt a suitable road map for the nation as well as for the people.

Thus, the Constitution was adopted in order to safeguard the rights and freedom of the
people and also to ensure that no individual is discriminated on the basis of color, creed, sex
and language. Part III of the Constitution provides a list of rights and freedom for the citizen
which is popularly called as the “Fundamental Rights”.

UNIT 6: HUMAN R IGHTS IN THE ERA OF GLOBALIZATION AND ECONOMIC LIBERALIZATION

6.1. Meaning of Globalization

The term globalization in international politics refers to the emergence of a complex web of
interconnectedness that means that our lives are increasingly shaped by events that occur
and decisions that are made, at a great distance from us. The central feature of globalization
is therefore that geographical distance is of declining relevance and that territorial border
such as those between nation-state are becoming less significant.

By no means, however does globalization imply that the local and the national are
subordinated to the global. Rather it highlights the deepening as well as the broadening of
the political process, in the sense that local, national and global events or perhaps local,
regional, national, international and global events constantly interact.

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In other words, it can be defined as, “multidimensional and interactive processes of
economic, political and cultural change across the world resulting in increased social
interconnectedness as well as opportunities for social confrontation among peoples”.

As such, it can be simply defined as, “an inter-play among individuals in ideas and cultures
that extends beyond geographical boundaries”. It is basically, an inter-play among
individuals, ideas and cultures that extends beyond the bounds of statehood and
geographical lines, panning out an evolved cross of social, political and economic relations
among entities who diversify from their long followed patterns to create a mutually
benefitting environment.

This interplay has been based on the process of amalgamation and interaction among
elements to create an undivided structure with the concept of “world shrinkage” spanning a
concourse of disciplines and affiliations.

Now, even though this creation of a global environment is majorly based on political
motivations and economic needs, its correlation with the social realm has been very real.
And so, Human rights have been very intrinsically related with the globalization policies in
the world and have had immense ripple effects.

It has been enunciated in Article 56 of The United Nations Charter which “reaffirmed faith in
fundamental human rights, and dignity and worth of the human person” and committed all
member states to promote “universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language, or religion”.

However, the world today is marked with very high rates of violations of the basic notions of
humanity and increasing liberalization of the economic policies of the world on the other
hand. As the cold war was reaching towards its conclusion and the death knell was closing
upon the ideas of socialism across the globe, capitalism in its most liberalized form was
ready to expand its wings and take over the global economic ideology. The competition
scale among economies private entities has been growing stronger day by day for the
attainment of a global market capture.

Thus, in international relations globalization is a process of interaction and integration

among the people, companies and governments of different nations a process driven by
international trade and investment and aided by information technology. This process has
effects on the environment, on culture, on political systems, on economic development and
prosperity, and on human physical well-being in societies around the world.

Social workers approach globalization from a human rights perspective as set out in the
International Federation of Social Workers (IFSW) and International Association of Schools
of Social Work (IASSW) as an international Ethical Statement. Social workers recognize the
benefits and disadvantages of globalization for the most vulnerable people in the world.

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Our professional perspective focuses especially on how the economic and environmental
consequences affect social relationships and individual opportunity. Globalization can seem
a remote process, related only to the economic and commercial world. So how would
greater attention to human rights change any of these realities?

First, the human rights framework adds to development policy the notion that education,
food, adequate housing and health care are rights, not merely needs. This implies that the
poor should not simply benefit from more resources, but must have legal and political space
to claim their rights and take part in decision-making.

It implies that government policies should ensure access to justice, protect against
discrimination, and fulfill economic and social rights. In designing social safety nets, and
poverty reduction strategies, their policies must respect the right to an adequate standard
of living, including food, housing, health protection, education and social security.

An example of how globalization has affected people’s basic rights and resulted in people
becoming displaced from their homes centers on the availability of water. 900 million
people in the world do not have access to clean water. 2.5 billion People have no safe way
to dispose of human waste, many defecate in open fields or near the same rivers they drink
from. Dirty water and lack of a toilet and proper hygiene kill 3.3 million people around the
world annually, most of them children under age five.

Some of the reasons for water becoming such a critical issue are the building of dams,
climate change and unequal investment in the infrastructure of basic services. It often falls
to women and children to carry water in some of the most critical areas of the world.

One of the issues for charities who have helped communities build wells and other methods
of access to water is that when the NGO has moved out the community, the infrastructure
has not been there in the community to sustain the water project, there may be an issue of
trust with each other about finding the few dollars to fund a spare part or having the local
necessary skills to make the repair.

This aspect of helping groups and communities work together is very much part of using
social work skills to make sure that people can achieve change in their lives, in this case
making sure that water, needed for living is readily available.

As such, transnational integration and increased mobility can simultaneously strengthen and
diminish the protection of individual rights and the dignity of individuals. Globalized markets
have facilitated more monitoring of social conditions but have also opened up more
opportunities for economic exploitation.

At the same time, information flows have emboldened human rights campaigns and
fostered transnational activist networks. Among the more intriguing contributions, Kristen

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Hill Maher shows that transnational migration tends to undercut human rights by creating
vulnerable non-citizen populations.

On the other hand, Richard Falk argues that globalization "from above" global civil society,
and Wayne Sandholtz argues that global society is creating new rules that allow forcible
intervention to stop gross violations of basic rights.

Most often the essays suggest that remedies for the threats and abuses of globalization
require stronger global institutions. Less attention is focused on strengthening the state
itself even though that formula remains fundamental to the provision and protection of
human rights.

6.2. Protection of human rights in a globalize world

International human rights law aims primarily to protect individuals and groups from
abusive action by states and state agents. Recent developments throughout the world,
including failed states, economic deregulation, privatization, and trade liberalization across
borders, components of what has come to be known as globalization have led to the
emergence of powerful non-state actors who have resources sometimes greater than those
of many states.

As such, two opposing views of globalization and its relationship to human rights have
emerged some see the two topics as mutually reinforcing and positive in improving human
well-being, while others view globalization as posing new threats not adequately governed
by existing international human rights law.

The legal relationship between globalization and human rights can be analyzed from the
perspective of economic regulation as well as that of human rights law, examining first
whether international economic law sufficiently supports or takes into account human rights
concerns, then considering the extent to which human rights law takes into account
globalization and economic interests.

In respect to both inquiries, the fundamental question is whether a human rights system
premised on state responsibility to respect and ensure human rights can be effective in a
globalized world.

Thus, the framework of international human rights law and the relation to globalization such
as international trade, technology and investment law demands for better understanding of
the subject matter.

It therefore, studies the relationship between globalization and human rights assuming that
international society accept human rights as a fundamental goal and globalization as a
generally positive phenomenon.

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After considering whether or not globalization is favorable to the promotion and protection
of human rights, and whether or not the promotion and protection of human rights is
favorable to globalization, the Article examines several approaches for the promotion and
protection of human rights in the era of globalization.

Emphasizing state responsibility for the actions of non-state actors;

1. Imposing international legal obligations directly on non-state actors, including

international institutions, multilateral enterprises, and individuals;
2. Encouraging private regulation through corporate codes of conduct, product
labeling, and other consumer or corporate actions; and
3. Involving non-state actors directly in the activities of international organizations to
promote and protect human rights.

The Article concludes that responses to globalization are significantly changing international
law and institutions in order to protect persons from violations of human rights committed
by non-state actors.

To the extent that these changes have brought greater transparency to and participation in
international organizations, globalization has produced unintended benefits and further
challenges to the democratic deficit in global governance.

At the same time, an emphasis on subsidiary and a strengthening of weak states and their
institutions may be necessary to ensure that globalization does not mean a decline in state
promotion and protection of human rights.

To ensure that such strengthening does not lead to further human rights violations, the
international community should make concerted multilateral efforts to enhance its ability to
respond to human rights violations, rather than unleashing each state to control what it
views as the sins of the private sector. As such, from this view point globalization means a
multidimensional phenomenon, comprising “numerous complex and interrelated processes
that have dynamism of their own”.

It involves a deepening and broadening of rapid trans-boundary exchanges due to

developments in technology, communications, and media. Such exchanges and interactions
occur at all levels of governance and among non-state actors, creating a more
interdependent world. It is not new, although its forms and the technology that spurs it
have changed.

Globalization today is most often associated with economic interdependence, deregulation

and a dominance of the market place that includes a shifting of responsibilities from state to
non-state actors. Economic globalization has been accompanied by a marked increase in the
influence of international financial markets and transnational institutions, including
corporations in determining national policies and priorities.

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In addition, information and communications technology has emerged as a dominant force
in the global system of production, while trade in goods, services and financial instruments
are more prevalent than any time in history. Some see this emergence of cross-border
networks of production, finance, and communications as posing profound challenges to
traditional concepts of state sovereignty.

Richard Falk has spoken of the “disabling of the state as guardian of the global public good”
in the face of a shift of power and autonomy from the state to markets. Kenichi Ohmae
refers to a “borderless world” in which “more than anything else, the burgeoning flow of
information directly to consumers is eroding the ability of governments to pretend that their
national economic interests are synonymous with those of their people”.

He adds that, “in today’s world there is no such thing as a purely national economic
interest”. Perhaps the same may be said for national political interests. Other authors refer
to the decline of the western nation state. The presence of weakened and failed states is an
undeniable modern phenomenon, yet there is no clear causal link between globalization
and failed states.

Moreover, state sovereignty remains the international frame of reference, even if the exact
contours of sovereignty change over time, as they have throughout history. Paul Streeten
has pointed out that globalization can come “from above,” in the form of multinational
firms, international capital flows, and world markets, or it can come “from below,” reflecting
the concerns of individuals and groups throughout the world.

It seems evident that globalization has enhanced the ability of civil society to function across
borders and promote human rights. The past two decades have seen a shift to multi-party
democratic regimes, as more than 100 countries ended rule by military dictatorships or
single parties. Pressed by an international network of non-governmental organizations and
activists, the international protection of human rights itself can be seen as an aspect of
globalization, reflecting universal values about human dignity that limit the power of the
state and reduce the sphere of sovereignty.

As such, global technology and the information revolution have limited the ability of
governments to control the right to seek, receive, and transmit information within and
across boundaries. Ideas and information can circulate more freely, as can individuals. The
number of televisions per 1000 persons doubled between 1980 and 1995, while the number
of Internet subscribers exceeds 700 million persons.

Free circulation enhances the ability to inform all persons about rights and avenues of
redress. It also makes it more difficult for governments to conceal violations and allows
activists more easily to mobilize shame in order to induce changes in government behavior.
Information technology and the media also can be used, however, to violate human rights
when the government is weak.

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In Rwanda, the radio and television channel “Radio-television Libredes Mille Collines” was
an important avenue for inciting genocide. Internet too has been used for hate speech. The
multiple and sometimes contradictory impacts of globalization are reflected in the complete
disagreement of views over the pattern and direction of globalization. Proponents point to a
rise in average incomes for the world as a whole. Opponents note that there is persistent
inequality and poverty.

The World Bank Development Report estimates that, at purchasing power parity, the per
capita GDP in the richest twenty countries in 1960 was eighteen times that of the poorest
twenty countries. By 1995, the gap had widened to thirty-seven times.

According to the International Labor Organization (ILO), only 24% of the world’s foreign
direct investment (FDI) went to developing countries in 1999, down from 38% over the
period 1993–97, and 80% of recent investment went to only ten developing countries.
Wealth concentration is not only seen among countries, but among individuals as well.

According to the UNDP, Human Development Report 1999, the assets of the three
wealthiest individuals in the world is more than the combined gross national product of all
least developed countries, while the annual sales of one transnational corporation exceeds
the combined gross domestic product of Chile, Costa Rica, and Ecuador.

Globalization thus, has created powerful non-state actors that may violate human rights in
ways that were not contemplated during the development of the modern human rights
movement. This development poses challenges to international human rights law, because
for the most part, that law has been designed to restrain abuses by powerful states and
state agents, not to regulate the conduct of non-state actors themselves or to allow
intervention in weak states when human rights violations occur.

An increasingly globalized civil society is likely to respond to economic globalization by

opposing liberalized trade and investment regimes that are not accompanied by
accountability, transparency, public participation, and respect for fundamental rights. The
result may be viewed as a “Clash of globalizations”.

The clash plays out in the international institutional and normative system that has
separated human rights matters from economic policy and regulation, creating distinct
institutions, laws, and values for each field. Integrating them is no easy task; indeed, some
commentators view a conflict as inevitable.

6.3. The Framework of International Human Rights Law

The development of human rights law in response to globalization is not new, and there is
nothing inherent in the international system that would prevent further protective
measures. The movement against the slave trade, which was largely a private enterprise,
and to combat the more indiscriminate or destructive forms of weaponry, such as gas

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warfare and dum-dum bullets, are early examples of international movements to counter
the negative side of international trade and technology.

Broader efforts to establish international protection for human rights can be traced to the
surge of globalization and the emergence of international markets that occurred at the end
of the 19th century.

During this period, the telephone, the telegraph, and radio transmissions first opened the
world to rapid trans-boundary communications; the development of railroads and
steamships allowed trade to move more quickly from one market to another, while the
abuses associated with industrialization provoked efforts to improve working conditions and
the standard of living in many countries.

Efforts to avoid competitive distortions and enhance the protection of fundamental rights of
workers necessitated international labor standards. The resulting movement led to the
creation of the International Labor Organization (ILO) in 1919. Unlike, all subsequent
international organizations, the ILO engaged all the relevant actors in its operations from
the beginning.

Using a tripartite structure of representation, the ILO ensured the participation of business,
labor, and governments in developing worker rights and minimum labor standards for
member states.

While the standards adopted are addressed to member states for implementation,
compliance requires the cooperation of the non-state actors as well, because the
organization primarily aims to respond through regulation to poor treatment of labor by
private industry.

Such regulation is made easier by the participation of labor and business in the law-making
and supervisory procedures of the ILO. The international protection of civil and political
rights emerged later, becoming an aim of the international community at the end of World
War II in response to the atrocities committed during that conflict.

While human rights theory supports the claims of rights holders against all others,
international human rights law treats the state as the principal threat to individual freedom
and well being. In the post-World War II paradigm, the state and its agents are obliged to
respect and ensure rights.

Indeed, some acts are explicitly defined as human rights violations only if committed by
state agents or those acting in complicity with them. If rights are violated the state is
obligated to ensure domestic remedies to tackle the uprising issues.

A failure to do so may allow the individual to bring a complaint against the state before an
international tribunal. No international procedures exist at present whereby an injured
individual may directly hold responsible the individual perpetrator of the harm.

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Despite the emphasis on state responsibility, international human rights instruments
continue to recognize human rights that are violated predominately by non-state actors, for
example, freedom from slavery and forced labor.

The duty imposed in such instances, however, remains primarily on the state to ensure the
right against the slave holders and employers of forced labor. Human rights instruments
also speak to the obligations of non-state actors.

The first general international human rights instrument, the American Declaration of the
Rights and Duties of Man, begins its preamble with an exhortation to all individuals to
conduct themselves with respect for the rights and freedoms of others. It clearly views
individuals as having duties towards each other.

As such, the Universal Declaration of Human Rights adopted some six months later, refers to
itself as “a common standard of achievement for all peoples and all nations, to the end that
every individual, and every organ of society” shall strive to promote respect for, and
observance of, the rights.

Article 1 of the Universal Declaration specifically refers to the behavior of individuals

towards each other. This is complemented at the close of the Universal Declaration with a
firm statement that, “nothing in this Declaration may be interpreted as implying for any
state, group or person any right to engage in any activity or to perform any act aimed at the
destruction of any of the rights and freedoms set forth herein”.

Human rights law also imposes individual responsibility for some human rights violations
and other acts designated as crimes under international law. These offenses require the
state where the offender is found to try or extradite the individual, and in a few instances
may allow prosecution before an international tribunal. More generally, Article 28 of the
Universal Declaration recognizes that, “everyone is entitled to a social and international
order in which the rights and freedoms set for in the Declaration can be fully realized”.

From this view point, it may emerge the principle that respect for human rights applies to all
societal relations locally, regionally, and globally. Thus, although positive human rights law
generally addresses state action or inaction, the theoretical and positive foundation is there
to apply human rights guarantees to non-state actors.

In recent years, the many facets and importance of the complex interplay of human rights
and globalization are reflected in the multiple studies conducted on aspects of globalization
by the human rights organs of the United Nations. The Sub-Commission on the Promotion
and Protection of Human Rights has undertaken studies on transnational corporations on
the impact of globalization and on the enjoyment of human rights.

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Generally the impact of globalization on racism and xenophobia, the relationship between
the enjoyment of human rights and income distribution, and on human rights as the primary
objective of international trade investment, and finance policy and practice.

Thus, beginning in 1998, the Commission on Human Rights established a working group on
the impact of structural adjustment programs on economic, social, and cultural rights. The
working group is largely composed of developing countries, with France, Germany, and Italy
representing industrialized countries among the sixteen states participants.

The Commission also has appointed an independent expert on the topic. Both the
Commission and the Sub-Commission have adopted resolutions on globalization and human
rights. The Sub-Commission also unanimously adopted a resolution on trade liberalization
and its impact on human rights, in which it asked all governments and forums of economic
policy to take fully into consideration the obligations and principles of human rights in the
formulation of international economic policy.

At the same time, the resolution expressed opposition to unilateral sanctions and to
negative conditionality on trade as a means to integrate human rights into the policies and
practices governing international economic matters.

The resolution requested the High Commissioner for Human Rights to cooperate with the
World Trade Organization (WTO) and its member states to underline the human dimension
of free trade and investments and to take measures to see that human rights principles and
obligations are fully taken into account in future negotiations in the framework of the WTO.

Finally, it is noteworthy that human rights law not only potentially imposes duties on non-
state economic actors; it guarantees rights essential for the furtherance of globalization. It
protects the right to property, including intellectual property, freedom of expression and
communications across boundaries, due process for contractual or other business disputes,
and a remedy before an independent tribunal when rights are violated. Furthermore, the
rule of law is an essential prerequisite to the long-term conduct of trade and investment.

6.4. Impact of Globalization and Human Rights

Global development is sometimes viewed as being responsible for disenfranchisement,

exploitation, and other forms of human rights abuses. On the other hand, improvements in
human rights are sometimes attributed to the spread of liberal ideas, which is one of the key
dimensions of globalization.

On the one hand, many argue that economic integration in trade and investment generates
incentives for governments to abuse poor and disenfranchised people, so that repression,
exploitation and human rights abuses arise.

Economic freedom refers to the internal liberalization of economic rights such as the
“freedom to engage in economic transactions, without government interference but with

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government support of the institutions necessary for that freedom, including rule of law,
sound money, and open markets”.

Human rights violations continue to be the norm rather than the exception. According to
Amnesty International, millions of people worldwide are still denied fundamental rights.
Development poses challenges to international human rights law, because for the most part
that law has been designed to restrain abuses by powerful states and state agents.

While globalization has enhanced the ability of civil society to function across borders and
promote human rights, other actors have gained the power to violate human rights in
unforeseen ways.

International human rights law aims primarily to protect individuals and groups from
abusive action by states and state agents. The authors of ‘Global Issues’ Raja Moorthy,
states that globalization resulted in the violation of the fundamental right to work. In 1995,
the ILO announced that one-third of the world‘s willing to work population was either
unemployed or underemployed. Globalization has also resulted in formalization of labor.

Only 8% of the labor force in India is in the formal economy while 90% work in the informal
economy with no legal protection or security and are subject to ruthless exploitation. Many
companies , including transnational companies got rid of their unionized labor force and
moved their operations to low wage and depressed areas to avail themselves of the large
supply of unorganized and unprotected, mainly female labor. Mathews George Chunakara
describes the state of workers in developing countries after globalization as a race to the
bottom, and the bottom means slave like conditions.

He explains this by the search of transnational companies for cheap labor in order to
maximize their profits, so the governments of developing countries compete for the
investors by providing cheaper labor. International Statistics shows that; half the world
nearly three billion people live on less than two dollars a day; the wealthiest nation on earth
has the widest gap between rich and poor of any industrialized nation; the top fifth of the
world’s people in the richest countries enjoy 82% of the expanding export trade and 68% of
foreign direct investment while the bottom fifth, barely more than 1% ; in 1960, 20 % of the
world’s people in the richest countries had 30 times the income of the poorest 20% and in
1997, 74 times.

A few hundred millionaires now own as much wealth as the world’s poorest 2.5 billon
people. The combined wealth of the world’s 200 richest people hit $ 1 trillion in 1999; the
combined incomes of the 582 million people living in the 43 least developed countries are $
146 billion.

In Asia, in particular, the migration of large numbers of female workers to the Middle East
from, for example, West Asia, and South-East Asia, has had a strong impact both socially and
economically. It has been estimated, for example, that the ratio of females to males who

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comprise migrant labour is 12:1 among Filipinos migrating to Asian destinations; 3:1 among
Indonesians and 3:2 among Sri Lankans.

Many of these women work as domestic workers, seamstresses, nurses, assistants in retail
shops and restaurants, and as entertainers oftentimes in the sex industry. While most
women have the opportunity of earning higher wages than at home, labour conditions and
mechanisms of both social and physical security in receiving countries seem to be perilous
at best. More often than not, receiving States tend not to observe even minimal labour
standards with regard to migrant workers, particularly women.

Heavy economic dependence of the sending States on the inward monetary remittances of
migrant workers has inhibited them from demanding fair labour conditions and protection
from receiving States, thereby further weakening the position of such workers.

Women have entered the workforce in large numbers in States that have embraced liberal
economic policies. One United Nations survey concludes that "it is by now considered a
stylized fact that industrialization in the context of globalization is as much female-led as it is
export led". The overall economic activity rate of women for the age group 20-54
approached 70 per cent in 1996.

The highest absorption of women has been witnessed in the export-oriented industrial
sector. Such industries are also labour intensive, service oriented and poorly paid. Thus,
according to the Women's Environment and Development Organization (WEDO) women
bear the disproportionate weight of the constraints introduced under the yoke of
globalization.

According to the World Bank report, some 2 million people were forced to leave from their
land because of huge infrastructure development projects funded by World Bank from 1986
to 1993, as many as 80% of those displaced were in Asia. Mega projects which take land
from people include dams, seaports, airports, highways, bridges, industrial estates, golf
courses and other types of resort, prawn farming and all kinds of plantation.

All these massive development projects have been promoted by transnational national
companies in collaboration with local governments. The Asian region – the growth centre of
the world, has been the main target of such mega development projects.

In his report to the UN Millennium Summit, Kofi Annan, described the world of globalization,
“as a new context for and a new connectivity among economic actors and activities
throughout the world.

Globalization has been made possible by the progressive dismantling of barriers to trade
and capital mobility, together with fundamental technological advances and steadily
declining costs of transportation, communication and computing. Its integrative logic seems
inexorable, its momentum irresistible”.

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When globalization is interpreted as internationalization, the term refers to a growth of
transactions and interdependence between countries. From this perspective, a more global
world is one where more messages, ideas, merchandise, money, investments and people
cross borders between national-state-territorial units.

A second common analytical dead-end in discussions of globalization has equated the

notion with liberalization. In this case, globalization denotes a process of removing officially
imposed restrictions on movements of resources between countries in order to form an
‘open’ and ‘borderless’ world economy.

On this understanding, globalization occurs as authorities reduce or abolish regulatory

measures like trade barriers, foreign-exchange restrictions, capital controls, and visa
requirements. In 1998, the ILO adopted the Convention concerning the Prohibition and
Immediate Action for the Elimination of the Worst Forms of Child Labour.

It also adopted its Declaration on Fundamental Principles and Right to Work together with a
follow-up procedure based upon technical cooperation and reporting. The principles have
been incorporated into codes of conduct by the private sector and also used as a basis for
action by various regional communities such as the Southern African Development
Community and the Caribbean Community.

The U.N. bodies and specialized agencies such as the U.N. Children’s Fund (UNICEF), the
U.N. Educational, Scientific and Cultural Organization (UNESCO), the Office of the U.N. High
Commissioner for Refugees (UNHCR), and the U.N. Environment Programme (UNEP), have
all carried out work that has implications for the overall response by the U.N. to the
phenomenon of globalization.

On the regional level, the European Union, in the context of negotiations for the 4 th LOM
Agreement with countries of Africa, the Caribbean, and the Pacific (ACP states), sought to
include good governance in public affairs, democracy, respect for human rights, and respect
for the rule of law, essential in the elements of the accord, with the termination of
assistance for non-respect of any of the elements.

Jurists are analyzing the issue whether globalization impacts on the implementation of
human rights as stated in the Universal Declaration of Human Rights (1948) and the
subsequent United Nations agreements, particularly the Covenant on civil and political
rights (1966), the Covenant on economic, social and cultural rights (1966) and the
Declaration on the Right to development (1986).

They often relate one aspect of human rights to the other aspect of globalization, for
instance relating poverty in developing countries to debt or relating unemployment to
privatization, or relating health deterioration to the monopoly of medicine patients.

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They also enumerate the aspects of deteriorations in human rights, such as impoverishment
and lowering standards of living, increasing inequality, discrimination, deprivation of
satisfaction of basic needs such as food, clean water, housing, and illiteracy.

The impact of the adverse consequences of globalization on the enjoyment of human rights
is multidimensional as such all aspects of human existence be it political, economic, social or
cultural are affected. The negative impact on one dimension of human rights such as
economic rights necessarily has a domino effect on other rights.

This reality reinforces the principle enunciated in the Vienna Declaration and Programme of
Action, 1993 that human rights are "universal, indivisible, interdependent and interrelated.
Today, international human rights obligations have to be viewed through the prism of this
fundamental principle.

The Charter of the United Nations recognizes the important linkages between the
maintenance of international peace and security, the establishment of conditions of
economic and social progress and development, and the promotion and protection of
universal human rights.

A singularly important development is the imposition by the Charter of a legal obligation on

Member States to take joint and separate action in cooperation with the Organization to
promote, inter alia, higher standards of living, full employment and conditions of economic
and social progress and development, and universal respect for, and observance of, human
rights.

Action taken by Member States, either collectively or individually, to defeat this pledge is
clearly a violation of the Charter, which under certain circumstances may amount to
violations of principles of jus cogens.

Thus, the Copenhagen Declaration and Programme of Action, while recognizing the benefits
of globalization cautions, "At the same time, the rapid processes of change and adjustment
have been accompanied by intensified poverty, unemployment and social disintegration.
Threats to human well-being such as environmental risks have also been globalized.

Furthermore, the global transformations of the world economy are profoundly changing the
parameters of social development in all countries. The challenge is how to manage these
processes and threats so as to enhance their benefits and mitigate their negative effects
upon people".

These very same sentiments are expressed in the Statement of the Committee on Economic,
Social and Cultural Rights on globalization issued in May 1998. It calls on the World Bank,
the IMF and WTO to devise methods of measuring the impact of their policies on the
enjoyment of economic, social and cultural rights and to revise those policies accordingly.

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The U.N. General Assembly Resolution states that, “International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Families” contained
direct verbiage in regards to the protection of migrant workers and their families from
exploitation and servitude, stating that migrant and their families “shall have the freedom of
thought, conscience and religion”.

In 2001, U.N. Secretary General, Kofi Annan, urged universal ratification on International
Migrants Day (December 18), noting, the fate of many migrants lies in stark contrast to the
aspirations reflected in the Universal Declaration of Human Rights, human rights norms and
labor conventions.

The commitment of the United Nations to the indivisibility of human rights is reflected in
the Universal Declaration of Human Rights. This instrument recognizes the right to an
adequate standard of living, social security, the right to work and just and favorable
conditions of work, and the right to education, in addition to traditional civil and political
rights.

Significantly, the Universal Declaration of Human Rights also recognizes the right of
everyone to a social and international order in which the rights and freedoms set forth in it
can be fully realized.

Furthermore, the Universal Declaration of Human Rights explicitly recognizes that nothing in
it may be interpreted as implying a right to destroy any of the recognized rights. The
International Covenants on Economic, Social and Cultural Rights (ICESCR) and on Civil and
Political Rights (ICCPR) further elaborate upon the foundation laid by the Universal
Declaration of Human Rights.

Both have been ratified by large numbers of States and are extremely important in
pinpointing the specific legal obligations of State actors with regard to all aspects of human
rights protection. The right to development is of equal importance when examining the
human rights implications of globalization. The international community through the
General Assembly has recognized the right to development as an inalienable human right.

The United Nations Declaration on the Right to Development recognizes that the central
focus of the process of development is the human person, who should be the active
participant and beneficiary of the right to development. Development itself is recognized as
a multifaceted process that embraces the development of economic, social, cultural and
political aspects of human life.

This position is affirmed by the widely respected Human Development Index advocated by
UNDP as a means of realistically assessing levels of development. It is also affirmed by the
Copenhagen Declaration and Programme of Action on social development. The UNDP
Human Development Report 1999 argues that reaping the benefits of a globalized economy
cannot be done by merely forcing countries to open up their economies.

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To make the most of those benefits there has to be a policy package. Governments have to
ensure that sound policies for social development and protection, poverty eradication,
income distribution and environmental protection are put in place, just as well-thought-out
macroeconomic policies and institutions have to be established to ensure sound economic
management.

In the absence of that combination, sustained and sustainable development will remain
illusory. It is also the case as successive waves of financial crises have taught that sound
social policies have to be in place in order to absorb the shock of the vagaries of market
forces. The report also calls for a reorientation of global governance that ensures equity in
international negotiations and that has as its central focus human development and human
rights.

According to the report of Committee on Economic, Social and Cultural Rights, on the right
to food appears to deal with the issue of food security within the context of globalization.
Significantly, it draws attention to the responsibilities of private actors, aside from the
obligation of States parties to appropriately regulate their conduct in the realization of the
right to adequate food.

The comment goes on to stipulate that "the private business sector both national and
transnational should pursue its activities within the framework of a code of conduct
conducive to respect of the right to adequate food, agreed upon jointly with the Government
and civil society".

Furthermore, it calls upon the IMF and the World Bank to pay attention to the protection of
the right to food in drawing up lending policies, credit and structural adjustment
programmes. In a resolution on the question of the impact of globalization and its effect on
human rights, the United Nations General Assembly recognizes that, ‘while globalization
offers great opportunities, the fact that its benefits are very unevenly shared and its costs
unevenly distributed represents an aspect of the process that affects the full enjoyment of
all human rights, in particular in developing countries’.

The United Nations General Assembly emphasizes that, ‘While globalization, by its impact
on, inter alia, the role of the state, may affect human rights, the promotion and protection
of all human rights is first and foremost responsibility of the state’.

It is put forward here that the Declaration on the Right to Development sets out a national
and global framework of responsibility for states to do so. Human rights discourse has also
been devoted to the study of multinational corporations and their direct effect on human
rights.

Thus, the impact of Globalization on Human Rights can be grouped as “human rights” in the
form of economic rights, labor rights, and cultural rights, civil and political right. It is
considered to have an impact on the following rights as; the admission to the WTO of

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nations that violate human rights extinguishes opportunities for valuable sanctions to
discourage such violations.

Open trade causes production to relocate to areas where environmental standards are
taxed and results in environmental degradation. Likewise, the competitive pressures that
result from open trade cause regulators to lose control over local regulatory matters and
precipitate a race to the bottom over matters such as social welfare standards,
environmental standards, and worker protection legislation. Open trade exacerbates
inequality in the distribution of income.

Similarly the negative impact of globalization especially on vulnerable sections of the

community results in the violation of various rights guaranteed by various Covenants in
particular on the; the enjoyment of fundamental aspects of the right to life, freedom from
cruel, inhuman or degrading treatment, freedom from servitude, the right to equality and
non-discrimination, the right to an adequate standard of living, the right to maintain a high
standard of physical and mental health, the right to work accompanied by the right to just
and fair conditions of labour, freedom of association and assembly and the right to
collective bargaining, have been severely impaired.

Developing States are more often than not, compelled by the dynamics of globalization to
take measures that negatively impact on the enjoyment of those rights. It has not caused
“developing” countries to catch up with the developed world. Inequality has risen during
this present globalization period.

The developed world - their intellectuals and policy makers view globalization as “providing
good opportunities for their countries and their people.” As such, it can be preserved from
two angles. One angle is that globalization is a means of increasing the wealth of nations
and promoting international trade.

However, it is a direct cause for the widening economic gap between “developing” countries
and “developed” countries. There is a relationship between globalization and equality and
non-discrimination in a more concrete fashion. The two concepts are central to the corpus
and ethos of human rights instruments and practice.

The Universal Declaration and other human rights instruments are unequivocal in their
declaration that all persons are equal, and that the right to non-discrimination is a basic and
fundamental human right. Inequality and discrimination unfortunately existed long before
globalization was recognized as a distinct phenomenon on the international scene.

Among the distinct groups of society upon whom globalization's impact has been most
prominent, women clearly stand out. Few observers will deny that the general issue of
gender relations globally, and the question of women's human rights specifically, has
undergone significant transformation.

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Spurred on by the various international conferences, declarations and, most significantly, by
the Convention on the Elimination of All Forms of Discrimination against Women, the
respect for and recognition of women's human rights has made significant advances
worldwide.

The phenomenon of globalization adds greater complexities to this quest, particularly in the
economic arena, but also within the context of culture and politics. Women in the
agricultural sector have also been adversely affected by the promotion of export-oriented
economic policies, trade liberalization and TNCs' activities in agriculture-related industries.

Emphasis on export crops has displaced women workers in certain countries from
permanent agricultural employment into seasonal employment. Subsistence farming has
been severely affected in the new economic environment, leaving women farmers to seek
seasonal employment.

Aside from the tenuous and low economic returns of seasonal agricultural employment, the
Food and Agriculture Organization of the United Nations (FAO) has noted that the
destruction of subsistence farming, increased industrial pollution and the loss of land to
large commercial ventures, often financed by TNCs, have given rise to grave problems
relating to food security and the health of the rural poor.

It is increasingly becoming clear that it is no longer tenable to draw a neat distinction

between the nature of State obligations with regard to civil and political rights on the one
hand, and economic, social and cultural rights on the other.

United Nations human rights mechanisms have debunked the traditional view that civil and
political rights entail only negative obligations, while economic, social and cultural rights
give rise to the more complex issue of positive State obligations which require resources to
be expended.

The United Nations Human Rights Committee has interpreted certain rights guaranteed by
the ICCPR as entailing positive obligations. This is clearly the case with regard to the right to
life. In General Comment 6 (16) on article 6, the Committee interpreted the right to life in a
broad manner that requires States parties to take positive action such as to reduce infant
mortality, to increase life expectancy and to take measures to eliminate malnutrition and
epidemics.

The negative effects of corporations on human rights in development can be divided into
two categories. First, the corporation may directly violate human rights by itself or in
conjunction with another actor. This typically involves civil and political rights such as the
right to personal security.

For example, a corporation may hire state security forces to protect its facilities that engage
in torture as occurred in Myanmar in association with Unocal Corp.

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Also, a corporation may directly violate rights by prohibiting collective bargaining or
discriminating against minorities. The second category concerns indirect effects. This
involves the corporation’s influence on host governments. Corporations can undermine the
state’s ability to fulfill human rights law.

They use their influence to encourage governments to adopt policies of liberalization,

deregulation and privatization that ignore human rights consequences. This second effect
concerns mostly economic, social and cultural rights, which are vital in developing states.

Corporations are the engines of economic growth upon which states depend for the
provision of the right to development. Increasingly, corporations are more economically
powerful and influential than the developing host-states from which they extract their
profits.

Members of the World Trade Organization when negotiating and implementing

international rules on trade liberalization should bear in mind their concurrent obligations to
promote and protect human rights, mindful of the commitment made in the Vienna
Declaration of 1993, that human rights are the first responsibility of governments.

While the WTO agreements provide a legal framework for the economic aspects of the
liberalization of trade, the norms and standards of human rights balance this by offering a
legal framework for trade liberalization’s social and ethical dimensions. The human rights
violations resulting from globalization are failures of governance.

Human rights law is capable of monitoring and regulating foreign investment. Respect for
human rights requires governments to protect, promote and fulfill obligations. The right to
development process can provide a framework focused on the implementation of a rights-
based approach to development.

The right to development is versatile and promotes global responsibility for globalization.
The Declaration on the Right to Development requires states to guarantee rights in a
manner applicable to globalization.

In order to be universal and remain relevant, human rights law must protect those
marginalized by the exigencies of globalization by empowering local peoples. Development
strategy consists of liberal trading regimes with a reduced role for the state. Despite the
new challenges arising from the globalization process and the state remains the only full
subject of international law responsible under human rights law.

It is the state, acting individually or collectively, that ultimately controls international

relations. The protection of rights generally requires a legal system that is effective and
credible, and such systems do not come free.

Moreover, many rights require some additional sacrifice of other human wants such as
minimum wages, rights to unionize, environmental standards, and social security systems,

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for example, all come at the price of an increase in the cost of goods and services, or an
increase in taxation.

Not all effects of globalization will infringe “human rights,” but some of them may. In
conclusion, the era of globalization is determined by the struggle for human rights which has
become more complex and challenging.

And so, realizing human rights especially economic and social rights is becoming increasingly
difficult. One of the most profound challenges that we face as a community of nations is to
understand better the emerging socio-economic forces and forms of globalization, to shape
them to serve our needs and to respond effectively to their deleterious consequences.

Human rights can balance forces of globalization within a just international legal framework.
Maintaining balance between globalization and protection of human rights should be a
priority. Human rights are what make us human. They are the principles by which we create
the sacred home for human dignity. Human rights are what reason requires and conscience
commands.

6.5. Human rights and Economic liberalization

Liberalization is a general term for any process whereby a state lifts restrictions on some
private individual activities. Liberalization occurs when something which used to be banned
is no longer banned, or when government regulations are relaxed. It means the removal of
rules and regulations at various levels of the economy.

It prefers free and competitive market and reduces the role of the state in economic affairs.
It refers free trade and the removal of government control over economy for example,
external trade, foreign investment, loans and aid and technological progress.

It advocates the reduction of tax, social security and welfare for the state. As such, from the
legal perspective, particularly in a social policy, it may refer to a relaxation of laws restricting
divorce, abortion, or psychoactive drugs.

And in relation to civil rights, it may refer to the elimination of laws prohibiting
homosexuality, private ownership of firearms or other items, same-sex marriages, inter-
racial marriage or interfaith marriage. And finally, from an economic perspective, it refers to
the reduction or elimination of government regulations or restrictions on private business
and trade.

Economic liberalization is often associated with privatization, which is the process of

transferring ownership or outsourcing of a business, enterprise, agency, public service or
public property from the public sector to the private sector.

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For example, the European Union has liberalized gas and electricity markets, instituting a
competitive system. Some leading European energy companies such as France's EDF and
Sweden's Vattenfall remain partially or completely in government ownership.

Liberalized and privatized public services may be dominated by big companies, particularly
in sectors with high capital, water, gas, or electricity costs. In some cases they may remain
legal monopolies, at least for some segments of the market like consumers.

As such, Liberalization, privatization and stabilization are the Washington Consensus's trinity
strategy for economies in transition. There is also a concept of hybrid liberalization as, for
instance, in Ghana, cocoa crops can be sold to competing private companies, but there is a
minimum price for which it can be sold and all exports are controlled by the state.

Shift from State to Market During 1970’s societies faced economic problems due to the high
taxation, employment policies, public sector, and great state intervention. Politicians were
not in favor of welfare state and socialism. These problems led the high wage demand and
encourage patriotism.

In 1980’s there was a shift from state to market in the field of the allocation of resources in
large parts of the world. This shift results in the reduction in taxes and reduction in
government expenditure. The multilateral agencies like IMF and World Bank pressurize the
state to apply the policy of liberalization.

Thus, liberalization in Europe was carried on by reducing the public expenditure, social
security, welfare programmes, and taxation. It did not affect the highly agricultural
production.

In 1970’s liberalization at its early phase in developing countries maintained stabilization of

the economy such as controlling of public expenditure, increase in tax return, currency
devaluation, reform in industrial policy, controlled of state expenditure and reforms in
market financial.

However, there is a distinct difference between liberalization and democratization.

Liberalization can take place without democratization and deals with a combination of
policy and social change specialized to a certain issue such as the liberalization of
government held property for private purchase.

Democratization on the other hand, is politically highly specialized as it can arise from
liberalization but works on a broader level of governmental liberalization. Thus, economic
liberalization can be understood as the process of lessening of government regulations and
restrictions in an economy in exchange for greater participation by private entities; the
doctrine is associated with classical liberalism.

In other words, liberalization means, "the removal of controls" in order to encourage

economic development. It is also closely associated with neo-liberalism. Most high-income

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countries have pursued the path of economic liberalization in recent decades with the
stated goal of maintaining or increasing their competitiveness as business environments.

Liberalization policies include partial or full privatization of government institutions and

assets, greater labour market flexibility, lower tax rates for businesses, less restriction on
domestic and foreign capital and open markets.

In support of liberalization, the then British Prime Minister Tony Blair wrote that, "Success
will go to those companies and countries which are swift to adapt, slow to complain, open
and willing to change. The task of modern governments is to ensure that our countries can
rise to this challenge”.

In developing countries, economic liberalization refers more to liberalization or further

"opening up" of their respective economies to foreign capital and investments. The three
fastest growing developing economies in the world today are Brazil, China and India which
have achieved rapid economic growth in the past several years or decades, in part, from
having "liberalized" their economies to foreign capital.

Many countries nowadays, particularly those in the third world, arguably have no choice but
to also "liberalize" their economies in order to remain competitive in attracting and
retaining both their domestic and foreign investments. This is referred to as the TINA factor,
standing for "there is no alternative".

For example, in 1991, India had no choice but to implement economic reforms. Similarly, in
the Philippines, the contentious proposals for Charter Change include amending the
economically restrictive provisions of their 1987 constitution. The total opposite of a
liberalized economy would be North Korea's economy with their "self-sufficient" economic
system that is closed to foreign trade and investment.

However, North Korea is not completely separate from the global economy, since it receives
aid from other countries in exchange for peace and restrictions in their nuclear programme.
Another example would be oil-rich countries such as Saudi Arabia and the United Arab
Emirates, which see no need to further open up their economies to foreign capital and
investments since their oil reserves already provide them with huge export earnings.

The adoption of economic reforms in the first place and then its reversal or sustenance is a
function of certain factors, presence or absence of which will determine the outcome. The
author's theory is fairly generalizable and is applicable to the developing countries which
have implemented economic reforms in the 1990s.

Liberalization of services in the developing world

The service sector is probably the most liberalized of the sectors. Liberalization offers the
opportunity for the sector to compete internationally, contributing to GDP growth and
generating foreign exchange. As such, service exports are an important part of many

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developing countries’ growth strategies. India's IT services have become globally
competitive as many companies have outsourced certain administrative functions to
countries where costs are lower.

Furthermore, if service providers in some developing economies are not competitive

enough to succeed on world markets, overseas companies will be attracted to invest,
bringing with them international best practices and better skills and technologies. The entry
of Foreign Service providers is not necessarily a negative development and can lead to
better services for domestic consumers, improve the performance and competitiveness of
domestic service providers, as well as simply attract FDI/foreign capital into the country.

In fact, some research suggest a 50% cut in service trade barriers over a 5 – 10 year period
would create global gains in economic welfare of around $250 billion per annum.

Potential risks of trade liberalization

Trade liberalization carries substantial risks that necessitate careful economic management
through appropriate regulation by governments. Some argue foreign providers crowd out
domestic providers and instead of leading to investment and the transfer of skills, it allows
foreign providers and shareholders "to capture the profits for themselves, taking the money
out of the country".

Thus, it is often argued that protection is needed to allow domestic companies the chance
to develop before they are exposed to international competition. This is also supported by
the anthropologist Trouillot, who argues that the current market system is not a free market
at all, but instead a privatized market.

Other potential risks resulting from liberalization includes, Risks of financial sector instability
resulting from global contagion, Risk of brain drain, Risk of environmental degradation, Risk
of a debt spiral due to decreased tax revenue, Risk of increased inequality across race,
ethnicity, or gender lines.

For example, according to the anthropologist Lilu Abu-Lughod, we see increased gender
inequality in new markets as women lose labor opportunities that existed prior to market
liberalization.

However, researchers at thinks tanks such as the Overseas Development Institute argue the
risks are outweighed by the benefits and that what is needed is careful regulation. For
instance, there is a risk that private providers will 'skim off' the most profitable clients and
cease to serve certain unprofitable groups of consumers or geographical areas.

Yet such concerns could be addressed through regulation and by a universal service
obligation in contracts, or in the licensing, to prevent such a situation from occurring. Of
course, this bears the risk that this barrier to entry will dissuade international competitors
from entering the market.

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For example, South Africa's Financial Sector Charter or Indian nurses who promoted the
nursing profession within India itself, which has resulted in a rapid growth in demand for
nursing education and a related supply response.

As such, the economic liberalization by region, Economic liberalization in India, Economic

liberalization in Botswana, Economic liberalization in Myanmar, Economic liberalization in
Pakistan, Effects of Economic Liberalization on Education in Tajikistan Baltic Tiger (Estonia,
Latvia, Lithuania, c. 2000 present), Economy of Cuba started in 1994 and accelerating under
Raúl Castro, and Indonesian economic boom Started after the Secession of East Timor in
1999 with the beginnings of the 21st Century.

Besides, some historical examples are Economic liberalization in the post–World War II era,
Chinese economic reform, Perestroika (Soviet Union), Economic history of Brazil in the 1980
and 1990s, Miracle of Chile and Đổi Mới (Vietnam).

6.6. Human Rights and Economic liberalization

The globalization of economy as witnessed in the world today is not a new phenomenon. It
has been evolving for the past several years and gaining momentum day by day. The trend,
at present, is a shift from a world economy based on national market economies to a
borderless global market economy increasingly governed by one set of rules.

In this context, globalization means global economic liberalization, developing a global

financial system and a transnational production system which is based on a homogenized
worldwide law of value. The demise of the Cold War helped the emergence of a new
aggressive competitive global economic order.

This was possible mainly due to the integration of the newly industrialized countries and
much of the developing nations. Although globalization and market liberalization have made
some progress in terms of economic growth in certain countries, it has also had many
negative impacts in developing societies.

As such, in its resolution 2001/4, the Sub Commission requested the Higher Commissioner
to submit a report on the human rights implications of the liberalization of trade in services,
particularly in the framework of the General Agreement on Trade in Services (GATS) of the
World Trade Organization (WTO), to its fifty-fourth session. The High Commissioner submits
the present report in response to the resolution.

The report is the third in a series of reports of the High Commissioner concerning human
rights and trade. At the fifty-third session of the Sub-Commission, the High Commissioner
submitted the first report on trade and human rights which considered the human rights
implications of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property
Rights.

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That report examined the TRIPS Agreement in light of the obligations on States under the
International Covenant on Economic, Social and Cultural Rights, and reviewed specific ways
in which the Agreement could be interpreted and implemented that are consistent with the
right to access essential medicines.

The High Commissioner submitted the second report on trade and human rights to the fifty-
eighth session of the Commission on Human Rights which focused on the WTO Agreement
on Agriculture.

That report examined ways in which the ongoing reform process concerning agricultural
trade could be directed towards protecting the right to food and the right to development
of people in developing countries, in particular by introducing enforceable special and
differential assistance for developing countries and by achieving real market access for
agricultural products of developing countries in the countries of the Organization for
Economic Cooperation and Development (OECD).

The present report will build on the analyses in these previous reports, this time focusing on
the liberalization of trade in services and its relationship with the enjoyment of human
rights, in particular the right to health, the right to education and the right to development.

The report begins with a general outline of the relationship between human rights and trade
drawing on human rights principles and standards as well as the previous reports of the
High Commissioner.

The report then introduces trade in services and the WTO General Agreement on Trade in
Services (GATS) and sets out the norms and standards of human rights most relevant to the
liberalization of trade in services.

Part II begins with the third section which lists the issues arising, first in the liberalization of
trade in services generally, and then specifically in the framework of the GATS. The final
section sets out the conclusions and recommendations of the High Commissioner, including
her recommendations for further work.

As with the previous reports, the present report has been drafted in consultation with other
international organizations, specifically WTO and the World Health Organization (WHO).
Consultations were also held with human rights experts, academics and civil society.
International trade law and human rights law have grown up more or less in isolation from
each other.

Yet as trade rules increasingly broaden their scope into areas that affect the enjoyment of
human rights, commentators are recognizing the links between the two, seeking to
understand how human rights and trade interact, in an attempt to provide greater
coherence to international law and policy-making and a more balanced international and
social order.

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The logic behind understanding these links is compelling. While WTO Agreements provide a
legal framework for the economic aspects of the liberalization of trade, they focus on
commercial objectives. The norms and standards of human rights provide the means of
providing a legal framework for the social dimensions of trade liberalization. The legal basis
for adopting human rights approaches to trade liberalization is clear.

All WTO members have undertaken obligations under human rights law. All 144 members of
the WTO have ratified at least one human rights instrument, 112 have ratified the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and all but one
have ratified the Convention on the Rights of the Child.

Further, those areas of human rights law recognized as customary international law take on
universal application, which means that trade rules should be interpreted as consistent with
those norms and standards whatever the treaty commitments of States in trade matters.

In other words, whatever the human rights treaty obligations undertaken by particular
States, WTO members have concurrent human rights obligations under international law
and should therefore promote and protect human rights during the negotiation and
implementation of international rules on trade liberalization.

The rest of this section attempts to identify the main elements of human rights approaches
to trade liberalization, with particular reference to interpretative material concerning the
ICESCR as well as the previous reports of the High Commissioner relevant to human rights
and trade. A human rights approach sets as entitlements the basic needs necessary to lead a
life in dignity and ensures their protection in the processes of economic liberalization.

Article1 of the Universal Declaration of Human Rights states that "all human beings are born
free and equal in dignity and rights" the protection of which, through the rule of law, is
necessary if recourse to rebellion is to be avoided.

The Universal Declaration establishes the civil, cultural, economic, political and social needs
necessary to human dignity and transforms these needs into legal entitlements or rights to
be protected, including, by extension, in the processes of trade liberalization.

The legal imperative of respecting human rights means that States are accountable for
ensuring that these entitlements cannot be reduced to mere privileges or luxuries or left
subject to the whim of markets.

The content of these basic entitlements have since been elaborated at the national, regional
and international level. Of particular relevance to international trade are the Limburg
Principles on the Implementation of the International Covenant on Economic, Social and
Cultural Rights, the Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights and the general comments of the Committee on Economic, Social and Cultural Rights

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(CESCR) on health, education, food and housing, all of which have added considerable clarity
to these entitlements and the obligations on States to protect them.

The fundamental nature of these entitlements as rights requires an approach that sets the
promotion and protection of human rights as objectives of trade liberalization, not as
exceptions. As such, the High Commissioner noted that the need to promote public health,
nutrition, environment and development was acknowledged in that agreement, but only as
an exception to the rules.

In contrast, it noted that a human rights approach would place the promotion and
protection of human rights at the heart of the objectives of intellectual property protection,
rather than only as permitted exceptions that are subordinated to the other provisions in
the TRIPS Agreement.

More recently, the CESCR has stated that "Ultimately, the end which intellectual property
protection should serve is the objective of human well being to which the international
human rights instruments give legal expression".

Human rights approaches to trade generalize this position to apply to the negotiations;
implementation and monitoring of all agreements and policies that drive trade liberalization
whether in goods, services or intellectual property.

In this way, a human rights approach examines trade law and policy comprehensively,
focusing not only on economic growth, markets or economic development but also on
health systems, education, water supply, food security, labour, political processes and so on.

In setting comprehensive objectives for trade liberalization that go beyond commercial

objectives, a human rights approach examines the effect of trade liberalization on
individuals and seeks trade law and policy that take into account the rights of all individuals,
in particular vulnerable individuals.

The basis for this approach is derived from the notion that the human person is the central
subject of human development and that everyone can claim and enjoy rights without
discrimination. Non-discrimination, together with equality and equal protection before the
law, is a fundamental principle relating to the protection of human rights.

The Human Rights Committee has stated its belief that "discrimination" as used in the
International Covenant on Civil and Political Rights should be understood "to imply any
distinction, exclusion, restriction or preference which is based on any ground such as race,
color, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status and which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms".

The Declaration on the Right to Development declares that:-

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 "States have the right and the duty to formulate appropriate national development
policies that aim at the constant improvement of the well-being of the entire
population and of all individuals, on the basis of their active, free and meaningful
participation in development and in the fair distribution of the benefits resulting
there from".

Thus, the High Commissioner has recognized that, while all international treaties can take
away a degree of autonomy from States, States have responsibilities to ensure that the loss
of autonomy does not disproportionately reduce their capacity to set and implement
national development policy. States, therefore have a responsibility to consider how
commitments undertaken internationally impact on the right to development in that
country.

Indeed, the High Commissioner has concluded that the opening of markets in a manner that
is conducive to the protection of human rights depends on the particular circumstances of
the country in question and encourages the negotiation and interpretation of trade rules
that acknowledges the following rules;

a. The obligation to respect requires States to refrain from interfering with the
enjoyment of economic, social and cultural rights;
b. The obligation to protect requires States to prevent violations of such rights by third
parties;
c. The obligation to fulfill requires States to take appropriate legislative, administrative,
budgetary, judicial and other measures towards the full realization of such rights.

The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights note the
trend in all regions of the world to reduce the role of the State, relying on market forces to
resolve problems concerning human welfare, often as a result of efforts to attract
investments from multinational enterprises or to respond to the conditions generated by
international and national financial markets and institutions.

In this respect, the obligation on the States to respect, protect and fulfill human rights
include the responsibility to ensure that private entities or individuals, including
transnational corporations over which they exercise jurisdiction, do not deprive individuals
of their economic, social and cultural rights.

And so, a human rights approach requires progressive trade liberalization to be consistent
with the progressive realization of human rights. While there are elements in all human
rights that should be implemented immediately such as respect for the principle of non-
discrimination there are other elements that require time, resources and planning to realize,
depending on the particular conditions existing in the country in question.

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Nonetheless, a human rights approach therefore seeks the means of ensuring that these
two processes - progressive realization of human rights and progressive trade liberalization -
can be implemented simultaneously and coherently.

Thus, human rights assessments gauge the implementation of trade policies on a set of
outcomes according to the subject matter of human rights - health care, education, food
security and so on. Further, human rights assessments introduce a methodology for
assessments that promotes popular participation and consultation of the people affected by
liberalization - the poor people dependent on public services, rural as well as urban
dwellers, and small business people and so on.

Further, such a consultative process would seek the opinion, not only of trade and industry
ministries but also ministries dealing with social issues such as health and education.
Moreover, a human rights approach to assessments emphasizes transparency and
accountability so that the outcomes of assessments and negotiation processes in trade
forums are open to public scrutiny.

Consequently, essential to a human rights approach to trade is a cautious approach to the

setting of trade policy and rules, based on sound evidence that any particular strategy will
promote the enjoyment of human rights, not only lead to increased investment or economic
growth. A human rights approach promotes international cooperation for the realization of
all human rights and fundamental freedoms. International cooperation has two important
elements.

First, international cooperation must be directed towards the establishment of a social and
international order in which all human rights can be fully realized. The Secretary-General
has stated that "such an international and social order is one that promotes the inherent
dignity of the human person, respects the right of people to self determination and seeks
social progress through participatory development and by promoting equality and non-
discrimination in a peaceful, interdependent and accountable world".

As noted recently by the High Commissioner, "achieving fair and equitable trade
liberalization by adopting human rights approaches to WTO rules will be an important step
in establishing a just international and social order and a failure to do so could perpetuate or
even exacerbate existing inequalities".

Second, States have undertaken to take steps, both individually and through international
assistance and cooperation to promote human rights. The High Commissioner has already
identified some of the areas that are appropriate for international cooperation in the field of
trade such as;

a. Improving market access opportunities for developing countries,

b. Operationalizing special and differential treatment provisions for developing
countries,

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 c. Introducing special and differential treatment for developing countries that is
targeted at vulnerable people and groups,
d. Increasing finance for development to allow policies that are targeted to allow
developing countries to make the most of the flexibilities available to them under
trade agreements,
e. Encouraging developed countries to establish clear incentives to promote technology
transfer, and
f. Assisting developing countries, in particular countries acceding to the WTO, in trade
negotiations.

In particular, the Maastricht Guidelines recognize that a failure of a State to take into
account its international legal obligations in the field of economic, social and cultural rights
when entering into bilateral or multilateral agreements with other States, international
organizations or multinational corporations constitutes a violation of human right.

6.8. The General Agreement on Trade in Service

GATS were negotiated in the context of the Uruguay Round of multilateral trade
negotiations and is the first multilateral agreement governing all forms of international
trade in services.

It covers trade in all services, with the exception of much of the air transport sector, as well
as those services supplied in the exercise of governmental authority and seeks to establish a
multilateral framework of principles and rules for trade in services with a view to the
progressive liberalization and expansion of this trade.

The Council for Trade in Services oversees the operation of the Agreement and generally
meets four times a year. GATS as with all WTO Agreements include the principle of non-
discrimination in two forms.

First, the principle is manifested as what is known as "most favored nation treatment" which
requires each WTO member to accord to services and service suppliers of other WTO
members treatment no less favorable than the treatment it accords to the services and
service suppliers of any other country, in other words, non-discrimination between foreign
services and service suppliers.

Second, the principle is manifested as "national treatment" which requires each WTO
member to accord services and service suppliers of any other WTO member treatment no
less favorable than the treatment it gives to its own like services and service suppliers, in
other words, non-discrimination between national and non-national services and service
suppliers.

The relationship between non-discrimination under trade law and under human rights law is
discussed as the two parts of GATS, particularly relevant to human rights. First, the

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Agreement sets out the "general obligations and disciplines" that applies to all services
within GATS and to all members.

Some of the general obligations in GATS include;

I. The principle of non-discrimination known as "most favored nation treatment;

II. The promotion of transparency in relation to laws and regulations that affect trade
in services;
III. Assurances that regulations affecting trade in services are applied in a reasonable,
objective and impartial manner;
IV. A safeguard to protect countries facing serious balance of payment difficulties;
V. Provisions to increase developing country participation in world trade by
strengthening their domestic services capacity, such as through technology transfer,
improving their access to information, as well as by opening up markets in sectors
relevant to developing country exports; and also,
VI. Exceptions to the application of GATS in order to protect public morals, as well as
human, animal and plant life.

Second, GATS sets out rules governing the commitments concerning the liberalization of
specific service sectors that each WTO member makes. While the general obligations on
members are applicable to all services that come within the scope of GATS, the GATS
specific obligations only apply to those service sectors identified and scheduled by the
member in question.

Each country makes commitments set out in a schedule over 11 service sectors ranging from
transport and communication services to health, education and tourism services across the
four modes of service supply outlined above. Commitments are made in relation to "market
access" and "national treatment".

Commitments on "market access" set out the terms, limitations and conditions for market
access which a country must apply without discrimination to the services and service
suppliers of all WTO members. There are six forms of limitation. A full commitment on
"market access" would therefore prohibit a country from limiting access to its services
markets.

However, a country need not make a full commitment to "market access" and WTO
members can determine individually the limitations, conditions and terms of "market
access" that fall short of full market access. Such limitations, conditions and terms must be
applied without discrimination to the services and service suppliers of all WTO members.

Commitments on "national treatment" set out the conditions and qualifications on national
services and service supply in a particular country which will be applicable on a non-
discriminatory basis to the services and service suppliers of other WTO members. A full

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commitment on "national treatment" prohibits a State from discriminating both de jure and
de facto between domestic and foreign like services and service suppliers.

In determining what constitutes discrimination of like services and service suppliers, much
depends on the interpretation of like would, for example, a not-for-profit education service
supplier be like a for-profit education supplier. Little guidance is given in GATS on how to
determine this.

As noted above, commitments under "market access" and "national treatment" are made
voluntarily and countries’ commitments can range from "unlimited market access" to "no
commitment", or can subject trade to express limitations or qualifications.

Thus, if a country registers "no commitment", it would be able to introduce new restrictions
on trade so long as they were consistent with the general obligations imposed under the
Agreement.

However, where commitments are made, the Government undertakes not to introduce new
restrictions. A country can modify or withdraw a commitment after three years have
elapsed from the date the commitment came into force. That country will have to enter into
negotiations for compensation with any country affected by the modification if requested to
do so.

Among the 11 sectors, tourism, financial and business services have attracted the most
commitments, while health and education services the least, possibly as a result of the
closer connection of the provision of these services to the enjoyment of human rights.

The Agreement also includes a built-in agenda which mandates further negotiations on the
liberalization of trade in services with a view to achieving a higher level of progressive trade
liberalization. The negotiations cover two main areas.

First, they cover the further development of rules such as the development of a GATS-
specific emergency safeguard mechanism and new rules in areas such as domestic
regulations and subsidies.

Second, they cover the negotiation of new country-specific commitments for further market
access. The negotiations on the development of new rules have been ongoing since the
close of the Uruguay Round although progress has been slow. Negotiations on specific
commitments in the schedules were mandated to begin in January 2000.

In March 2001, WTO members adopted negotiating guidelines and procedures and currently
they are in the process of making requests for new commitments to liberalize. The
Ministerial Declaration adopted by WTO Ministers at the fourth Ministerial Conference in
Doha in November 2001 confirmed that negotiations on services should be completed by
January 2005.

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In relation to the negotiation of specific commitments under market access and national
treatment, all WTO members should have submitted their "requests" for other WTO
members to open up their service sectors or to eliminate or change certain domestic
regulations by June 2002. Members are currently in the process of designing their "offers"
to other members, namely designating which sectors and in which ways they are willing to
open their markets.

6.9. Relevant norms and standards of human rights law

The liberalization of trade in several service sectors is relevant to the enjoyment of human
rights. Most directly, any commitments in the health, education or environmental sectors
can affect the enjoyment of the right to health, the right to education and the right to
development. Further, commitments to liberalization in other sectors, such as tourism,
telecommunications, advertising, or even prison services, can impact on the enjoyment of
human rights.

Indeed, the privatization of prison services and its relationship with the administration of
justice has already been the subject of study in the Sub-Commission. As such, article 12 of
the ICESCR recognizes the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.

The specific steps set out in the ICESCR to be taken by States to achieve the full realization
of the right to health include the creation of conditions that would assure to everyone
medical service and medical attention in the event of sickness.

The Committee on Economic, Social and Cultural Rights has set out the content of the right
to health in general comment No. 14, noting that the right is not to be understood as a right
to be healthy, but rather a set of freedoms and entitlements concerning health.

According to the CESCR, the right to health contains the following essential elements
depending on the prevailing conditions in each country. These elements are;

I. Availability - the State party must make available functioning public health, and
health-care facilities, goods and services, including safe drinking water, adequate
sanitation facilities, hospitals, clinics, trained medical professionals and essential
drugs;
II. Accessibility - the State must assure access to health facilities, goods and services
without discrimination. Accessibility is assessed according to physical accessibility,
economic accessibility and information accessibility. In particular, accessibility
includes appropriate resource allocation. For example, investments should not
disproportionately favor expensive curative health services which are often
accessible only to a small, privileged fraction of the population, rather than primary
and preventive health care benefiting a far larger part of the population;

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 III. Acceptability - the State must ensure that health facilities, goods and services are
respectful of medical ethics and are culturally appropriate; and
IV. Quality - the State must ensure that health facilities, goods and services are also
scientifically and medically appropriate and of good quality.

Some of the core obligations on States to promote the right to health include the following;

I. To ensure the right of access to health facilities, goods and services on a non-
discriminatory basis, especially for vulnerable or marginalized groups;
II. To ensure equitable distribution of all health facilities, goods and services; and
III. To ensure access to an adequate supply of safe and potable water.

The State may violate the right to health through either its direct action or by the action of
other entities insufficiently regulated by the State.

Violations of the right to health may include;

I. The suspension of legislation or the adoption of laws or policies that interfere with
the enjoyment of any of the components of the right to health;
II. The failure of the State to take into account its legal obligations regarding the right
to health when entering into bilateral or multilateral agreements with other States,
international organizations and other entities such as multinational corporations;
III. The failure to regulate the activities of individuals, groups or corporations so as to
prevent them from violating the right to health of others; and
IV. The failure to take measures to reduce the inequitable distribution of health
facilities, goods and services.

The liberalization of trade in educational services is relevant to the enjoyment of the right to
education. The right to education is recognized in several international instruments.

Article 13, paragraph 2 of the ICESCR recognizes that:-

"With a view to achieving the full realization of this right, Primary education shall be
compulsory and available free to all, Secondary education in its different forms shall
be made generally available and accessible to all, in particular by the progressive
introduction of free education and Higher education shall be made equally accessible
to all, on the basis of capacity, and in particular by the progressive introduction of
free education”.

As with the right to health the CESCR has set out the basic content of the right in its general
comment on the right to education, while the Committee on the Rights of the Child has
elaborated upon the aims of education in its first general comment.

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Internationally, States are specifically obliged to take steps to ensure that, in the negotiation
and ratification of international agreements, such instruments do not adversely impact upon
the right to education.

States also have an obligation to ensure that their actions as members of international
organizations, including international financial institutions, take due account of the right to
education. The liberalization of trade in services is also relevant to the realization of the
right to development.

The right to development is recognized in the Declaration on the Right to Development as

"an inalienable human right by virtue of which every human person and all peoples are
entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully realized”.

Thus, the liberalization of trade in services presents both opportunities as well as challenges
to the enjoyment of human rights. While liberalization offers opportunities for increased
economic growth and development, the liberalization process, in particular where it leads to
unregulated private sector activities, can threaten universal access for the poor to essential
services.

States hold responsibilities, both nationally and internationally, to guarantee universal

service supply according to national capacities and should therefore not leave the concerns
of human welfare solely to market forces.

Developing human rights approaches to GATS by negotiating, interpreting and

implementing trade rules in accordance with the norms and standards of human rights will
maximize the benefits of the international trade in services while minimizing its challenges.

Moreover, adopting human rights approaches to GATS will help States reconcile their
obligations under human rights and trade law. Put simply, a human rights approach seeks
the means by which the progressive liberalization of trade in services can take place in a way
that advances the objective of promoting and protecting human rights.

The conduct of negotiations that achieve significant results of liberalization in areas in which
there is the greatest positive impact on people. The High Commissioner identifies the
following areas of action as a step in elaborating human rights approaches to the
liberalization of trade in services.

CONCLUSION

For the greater part of the last century, globalization and liberalization has revolutionize the
overall concept of Human rights and its associated provisions that were once viewed as
basic rights – without which one man can survive. As discussed above, the relationship
between human rights and globalization has a long history of evolution and continue to co-
exist in accordance to the demanding times. In simply words, an issue of human rights

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violations in any parts of the world has its indirect impact on the rest of the world.
Nowadays, such issues do not confined to one particular nation or continent as the world is
closely connected with one another.

Consequently, with globalization came along liberalization which opened a new dimension
of human rights related issues especially in respect to economic rights of the people. Now
with this new ideology, the scope of economic rights under the arm folds of UDHR has
become more apparent and inclusive. Gone are the days when people from a particular
community has to fight for their economic rights, but today every individual seem to be fully
aware of their rights and freedom.

Human Rights in the era of globalization and economic liberalization has thus, lived up to
the expectations of the people. The most remarkable changes brought about in the world
would be “Equal pay for equal work” and “Right to choose any profession”.

***

REFERENCES
Alston, P., The United Nations and Human Rights: A Critical Appraisal, Oxford, the Clarendon
Press, 1995.

Brownlie, I. (ed), Basic Documents on Human Rights, Oxford, The Clarendon Press, 1992.

Chandler, David, From Kosovo to Kabul, Human Rights and International Intervention,
London Pluto, 2002.

Donnelley, J., The Concept of Human Rights, London, Croom Helm, 1985.

Edide, A. and Bernt, H., Human Rights in Perspective: A Global Assessment. London,
Blackwell, 1992.

Evans, T., The Politics of Human Rights: A Global Perspective, London, Pluto, 2004.

Gupta, U.N., The Human Rights, Atlantic, 2007.

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Mishra, Pramod, Human Rights: Global Issues. Delhi, Kalauz Publications, 2002.

Saksens, I.P. (ed), Human Rights, Fifty Years of India’s Independence, Delhi, Gyan, 1999.

Rosad, A and J. Helgrsen (eds), Human Rights in a Changing East-West Perspective, London,
Pinter Publishers, 1990.

Subramaniam, S., Human Rights: International Challenges, Delhi, Manas, 1997.

Agarwal, H.O., International Law and Human Rights, 21 st Edition, Central Law Publications,
Allahabad, 2016.

http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-
ideas-and-fora/part-i-the-concept-of-human-rights/definitions-and-classifications

https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx

http://www.corteidh.or.cr/tablas/R22302.pdf

http://www.dhnet.org.br/direitos/indicadores/experiencias_mundo/
landman_hr_indicators.pdf

https://plato.stanford.edu/entries/rights-human/

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 QUESTION BANK
6/H – 18 (viii) (d) (Syllabus – 2016)

2018

( April )

POLITICLA SCIENCE

(Honours)

( Human Rights )

( PsO. 08. 4 )

Marks: 75

Time: 3 hours

The figures in the margin indicate full marks for the questions

Answer any five questions

1. What do you understand by the term ‘Human Rights’? Discuss the scope of Human Rights.
5=10= 15

2. Explain the International Covenant on Civil and Political Rights. 15

3. Distinguished between collective rights and individual rights. Discuss at least two major
collective rights. 7+8= 15

4. Explain the rights of minorities with special reference to the right of indigenous people.
15

5. Discuss the effects of socio-economic and political exploitation on Human Rights. 15

6. Evaluate critically the relationship between Human Rights and Environment. 15

7. Critically discuss various institutional efforts made by the Government of India in

protection and promotion of Human Rights. 15

8. Highlight the role of United Nations in the promotion and protection of Human Rights. 15

9. Explain the impact of globalization and economic liberalization on Human Rights. 15

10. Write short notes on any three of the following: 5x3= 15

a) UN Convention on the elimination of all forces of discrimination against women

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 b) Human Rights and Equality
c) Universal Declaration of Human Rights (UDHR)
d) Rights of the Child
e) UN Commission for Human Rights

***

6/H – 18 (viii) (d) (Syllabus – 2016)

2019

( April )

POLITICLA SCIENCE

(Honours)

( Human Rights )

( PsO. 08. 4 )

Marks: 75

Time: 3 hours

The figures in the margin indicate full marks for the questions

Answer any five questions

1. Examine the concept and scope of Human Rights. 15

2. Analyze the main provisions and limitations of the Universal Declaration of Human Rights.
15

3. What are collective rights? Explain the differences between collective rights and
individual rights. 5+10= 15

4. Write an essay on the Convention for Elimination of All Forms of Discrimination against
Women. 15

5. Critically assess the United Nations Convention on the Rights of the Child. 15

6. Evaluate critically the relationship between Human Rights and the Environment. 15

7. Examine the role of the National Human Rights Commission towards the protection of
Human Rights in India. 15

125
8. Examine the role of the United Nations in the promotion and protection of Human Rights.
15

9. Discuss the impact of globalization and economic liberalization on Human Rights. 15

10. Write short notes on any three of the following: 5x3= 15

a) The Rights of the Minorities

b) Human Rights and Equality
c) Covenant on Civil and Political Rights
d) NGOs and Human Rights
e) Causes of Human Rights Violations

***

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 MODEL ANSWERS

1. What do you understand by the term ‘Human Rights’? Discuss the scope of Human
Rights. 5=10= 15

(NEHU 2018)

Ans: Introduction

The idea of Human Rights can be traced from both Greek philosophy and various other
religions of the world. During the 18th century, this idea became an undeniable fact where
both man and woman came were consider as a rational being, endowed by the nature with
certain inalienable rights. These rights were further instrumented to invoked against the
government of the day and safeguard them for the well being of the people. As such, they
became the elementary pre-conditions for the existence worthy of human dignity. Many
charters and treaties have been codified before 18th century, with a view to safeguard
certain rights and freedoms of the individual and also to install the very idea of human
rights.

For instance, during 6th Century, the Achaemenid Persian Empire of ancient Iran established
unprecedented principles of human rights. Cyrus the Great (576 or 590 BC - 530 BC) issued
the Cyrus cylinder which declared that citizens of the empire would be allowed to practice
their religious beliefs freely and also abolished slavery. The next generation of human rights
documents were the Magna Charta Libertatum of 1215, the Golden Bull of Hungary (1222),
the Danish Erik Klipping’s Håndfaestning of 1282, the Joyeuse Entrée of 1356 in Brabant
(Brussels), the Union of Utrecht of 1579 (The Netherlands) and the English Bill of Rights of
1689. These documents specified rights which could be claimed in the light of particular
circumstances (e.g., threats to the freedom of religion), but they did not yet contain an all-
embracing philosophical concept of individual liberty.

Freedoms were often seen as rights conferred upon individuals or groups by virtue of their
rank or status. In the centuries after the middle Ages, the concept of liberty became
gradually separated from status and came to be seen not as a privilege but as a right of all
human beings. Spanish theologists and jurists played a prominent role in this context.

Meaning of Human Rights

The Enlightenment was decisive in the development of human rights concepts. The ideas of
Hugo Grotius (1583-1645), one of the fathers of modern international law, of Samuel von
Pufendorf (1632-1694), and of John Locke (1632-1704) attracted much interest in Europe in
the 18th century. Locke, for instance, developed a comprehensive concept of natural rights;
his list of rights consisting of life, liberty and property. Jean-Jacques Rousseau (1712-1778)

127
elaborated the concept under which the sovereign derived his powers and the citizens their
rights from a social contract.

Thus, the term human rights appeared for the first time in the French Déclaration des Droits
de l’Homme et du Citoyen (Declaration of the Rights of Man) 1789. The people of the British
colonies in North America took the human rights theories to heart. The American
Declaration of Independence of 4th July 1776 was based on the assumption that all human
beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty
and the pursuit of happiness. These ideas were also reflected in the Bill of Rights which was
promulgated by the state of Virginia in the same year.

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even
at that time, however, some people believed that citizens had a right to demand that the
government endeavor to improve their living conditions. Taking into account the principle of
equality as contained in the French Declaration of 1789, several constitutions drafted in
Europe around 1800 contained classic rights, but also included articles which assigned
responsibilities to the government in the fields of employment, welfare, public health, and
education.

As such, the need for international standards on human rights was first felt at the end of the
19th century, when the industrial countries began to introduce labour legislation. This
legislation which raised the cost of labour had the effect of worsening their competitive
position in relation to countries that had no labour laws. Economic necessity forced the
states to consult each other. It was as a result of this that the first conventions were
formulated in which states committed themselves vis-à-vis other states in regard to their
own citizens. The Berne Convention of 1906 prohibiting night-shift work by women can be
seen as the first multilateral convention meant to safeguard social rights.

Many more labour conventions were later to be drawn up by the International Labour
Organization (ILO), founded in 1919. Remarkable as it may seem, therefore, while the classic
human rights had been acknowledged long before social rights, the latter were first
embodied in international regulations. The atrocities of World War II put an end to the
traditional view that states have full liberty to decide the treatment of their own citizens.
The signing of the Charter of the United Nations (UN) on 26th June 1945 brought human
rights within the sphere of international law. In particular, all UN members agreed to take
measures to protect human rights.

The Charter contains a number of articles specifically referring to human rights. Less than
two years later, the UN Commission on Human Rights (UNCHR), established early in 1946,
submitted a draft Universal Declaration of Human Rights (UDHR) to the UN General
Assembly (UNGA). The Assembly adopted the Declaration in Paris on 10 th December 1948.
This day was later designated as Human Rights Day.

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Subsequently, human rights are commonly understood as being those rights which are
inherent in the mere fact of being human. The concept of human rights is based on the
belief that every human being is entitled to enjoy her/his rights without discrimination.
Human rights differ from other rights in two respects. Firstly, they are characterized by
being:

i. Inherent in all human beings by virtue of their humanity alone (they do not have,
e.g., to be purchased or to be granted);
ii. Inalienable (within qualified legal boundaries); and
iii. Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or
agents, not on individuals. One important implication of these characteristics is that human
rights must themselves be protected by law (‘the rule of law’).

Scope of Human rights

The term human rights are used to denote a broad spectrum of rights ranging from the right
to life to the right to a cultural identity. They involve all elementary preconditions for a
dignified human existence. These rights can be ordered and specified in different ways. At
the international level, a distinction has sometimes been made between civil and political
rights, on the one hand, and economic, social and cultural rights on the other. In their
contemporary manifestation, human rights are a set of individual and collective rights that
have been formally promoted and protected through international and domestic law since
the 1948 Universal Declaration of Human Rights.

Thus, the scope of human rights can discuss under the following headings;

1. Categories of Human Rights: The collection of human rights protected by

international law draws on a longer of tradition of rights from philosophy, history,
and normative political theory and now includes three sets, or categories of rights
that have become useful shortcuts for talking about human rights among scholars
and practitioners in the field. These three categories are:
i. Civil and political rights
ii. Economic, social, and cultural rights, and
iii. Solidarity rights.

Civil and political rights uphold the sanctity of the individual before the law and guarantee
his or her ability to participate freely in civil, economic, and political society. Some of these
rights are;

a) Right to life, liberty, and personal security;

b) Right to equality before the law; and
c) Right of protection from arbitrary arrest;

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Political rights include such rights as;

a) The right to speech and expression;

b) The rights to assembly and association; and
c) The right to vote and political participation.

Political rights thus, guarantee individual rights to involvement in public affairs and the
affairs of state. In many ways, both historically and theoretically, civil and political rights
have been considered fundamental human rights for which all nation states have a duty and
responsibility to uphold. They have also been seen as so-called ‘negative’ rights since they
merely require the absence of their violation in order to be upheld.

Social and economic rights include such rights as;

a) Right to a family;
b) Right to education; and
c) Right to health and well being;

Cultural rights, on the other hand, include such rights as;

a) Right to the benefits of culture;

b) Right to indigenous land, rituals, and shared cultural practices; and
c) Right to speak one's own language and ‘mother tongue’ education.

Cultural rights are meant to maintain and promote sub-national cultural affiliations and
collective identities, and protect minority communities against the incursions of national
assimilationist and nation-building projects.

Solidarity rights, which include rights to public goods such as development and the
environment, seek to guarantee that all individuals and groups have the right to share in the
benefits of the earth's natural resources, as well as those goods and products that are made
through processes of economic growth, expansion, and innovation. Of the three sets of
rights, this final set is the newest and most progressive and reflects a certain reaction
against the worst effects of globalization, as well as the relative effectiveness of 'green'
political ideology and social mobilization around concerns for the health of the planet.

2. Dimensions of Human Rights: It is divided into Positive dimensions and Negative

dimensions. Positive dimensions include those actions that states can take to provide
resources and policies for improving the protection of human rights while negative
dimensions are those actions that states do (or not do) that deliberately violate (or
protect) human rights. Certain cells in the matrix have been well covered in the
theory and practice of human rights. For example, the negative dimensions of civil
and political rights are the traditional focus of human rights international standards
systems and mechanisms for reporting and redress.

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 Positive and negative dimensions of human rights categories;

Dimensions

Positive Negative
(i.e. provision of resources and outcomes of (i.e. practices that deliberately violate)
policies)

I II
Civil and Investment in judiciaries, prisons, police forces, and Torture, extra-judicial killings,
political elections disappearance, arbitrary detention, unfair
trials, electoral intimidation,
disenfranchisement Economic, social, and
cultural
Economic,
Social and III IV
Cultural Progressive realization Investment in health, Ethnic, racial, gender, or linguistic
education, and welfare discrimination in health, education, and
welfare Categories of human rights
Solidarity
Solidarity
V VI
Compensation for past wrongs Debt relief Overseas Environmental degradation CO2 emissions
development and technical assistance Unfair trade

In conclusion, it can only be said that the idea of human rights is as old as the idea of human
civilization. It is like the day when human beings realize that we are different from other
social animals, that was the day we began to advocate the idea of basic rights and freedom
of human beings. These rights and freedom were considered as basic simply because,
without these rights and freedom, no individual can survive.

On the other hand, the scope of human is so vast and inclusive that in today’ world it caters
to the need of the people. Ranging from social activities to a legal practitioner, study of
human rights helps an individual to pursue administrative and legislative careers.

2. Explain the International Covenant on Civil and Political Rights. 15 (NEHU 2018)

Ans: Introduction

The post world war period was marked by conventions on Human Rights which were
popularly known as “International Bill of Human Rights”. As such, the UDHR was adopted
and proclaimed by the General Assembly of the United Nations on 10 th December 1948. The
commission on Human Rights at its 2nd session from 2nd – 17th December 1947 established
three working groups that is, first on the declaration, second on the covenant and third on
the implementation. Thus, the Universal Declaration consists of a Preamble and 30 Articles
covering both civil and political rights and economic, social and cultural rights.

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The preamble refers to the faith in fundamental human right in dignity and worth of the
human person and the equal rights of men and women because they considered it to be the
“foundation of freedom, justice and peace in the world”. The rights proclaimed in the
universal declaration of human right may be classified into four categories namely;

i. The universal declaration of human rights, 1948 (UDHR).

ii. The international covenant on civil and political rights, 1966 (ICCPR).
iii. The international covenant on economic, social and cultural rights, 1966 (ICESCR).
iv. The optional protocol to the international covenant on civil and political right, 1966.

International Covenant on Civil and Political rights (ICCPR): Human rights protection is
always a stony way, requiring a long breath and protection. The rights of citizens to liberty
and equality sometimes referred to as first generation rights. Civil rights include freedom to
worship, to think and express oneself, to vote, to take part in political life, and to have
access to information. Thus, the International Covenant on Civil and Political Rights (ICCPR)
is the core of the legally binding human rights protection at the universal level. It is an
international human rights treaty, providing a range of protections for civil and political
rights. It is open for ratification to all states as it has a universal relevance. The ICCPR and its
two Optional Protocols, is part of the International Bill of Human Rights, along with the
International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal
Declaration of Human Rights (UDHR).

Subsequently, the first Protocol establishes an individual complaints mechanism, and the
second abolishes the death penalty. This Covenant consists of a preamble, which links the
full implementation of equal rights for all members of the human family and 53 articles. The
preamble calls some equally fundamental general political requirements, necessary for the
promotion of full equality between men and women in the exercise of their human rights. It
also proclaims the ideal of free human beings enjoying civil and political freedom and
economic, social and cultural rights. As such, the catalogue of rights guaranteed contains
almost all classical liberal human rights and freedoms that are particularly in danger of
violation:-

i. Protection for the right to life as a general prohibition of the death penalty (article 6)
ii. Prohibition of torture or cruel, inhuman or degrading treatment or punishment
(article 7) and
iii. Protection from arbitrary arrest or detention (article 9)

In addition, the substantive articles of the ICCPR can be categorized in five categories
namely;

i. Protection on individual's physical integrity

ii. Procedural fairness in law
iii. Protection based on gender, religious, racial or other forms of discrimination

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 iv. Individual freedom of belief, speech, association, freedom of press, right to hold
assembly and
v. Right to political participation.

The Covenant compels governments to take administrative, judicial and legislative measures
in order to protect the rights enshrined in the treaty and provide an effective remedy.

Participation of the States: The states parties of the Covenant on Civil and Political Rights
are distinguish in several categories namely;

iv. States which have became parties by ratification: 35 states that ratified the
Covenant. For all states the relevant date is 23rd March 1976.
v. States which have became parties by accession: Ratified the Covenant after that
date and entered into force 3 months after their declaration of ratification or
accession.
vi. States which have became parties by succession by states already bound by
Covenant: The succession is the replacement of one state by another in the
responsibility for the international relations of territory. The state successor of a
state which was already bound by the Covenant is automatically obligated by the
Covenant from the date when the fact of succession took place. The lists of the
states which have become parties by succession include Croatia, Macedonia, Bosnia-
Herzegovina, Estonia, Latvia, Lithuania, etc.

Reservation to the ICCPR: Numerous countries have made reservations to the ICCPR limiting
in this way their obligations, excluding the duty to provide and guarantee particular rights in
the Covenant. The Covenant neither prohibits reservations nor mentions any type of
permitted reservation. As such, the reservation is a unilateral statement, however phrased
or named, made by a State, when signing, ratifying, accepting, approving or acceding to a
treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of
the treaty in their application to that State. The State Party to the Covenant undertakes to
respect and to ensure the rights recognized in the ICCPR, but some country, using the
general rules of international law, have made reservation upon ratification, accession or
succession.

For example, one of the reservations of Romania is; Article 10 "In relation to paragraph 2 (a)
the principle of segregation is accepted as an objective to be achieved progressively. In
relation to paragraph 2 (b) and 3 (second sentence) the obligation to segregate is accepted
only to the extent that such segregation is considered by the responsible authorities to be
beneficial to the juveniles or adults concerned".

Another state is U.S.A. upon ratifying in 1992 the United States entered 5 reservations, 5
understandings, and 3 declarations. These Reservations included;

i. Protection of free speech under the U.S. Constitution

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 ii. Right to impose capital punishment on any person (other than pregnant women),
including juveniles
iii. Limiting the prohibition against cruel, inhuman or degrading treatment or
punishment to the constitutional prohibition under 5th, 8th and 14th Amendments and
iv. Limits on the treatment of juveniles as adults in the criminal justice system.

The obligations created by the Covenant: The purpose of Covenant is the creation of
conditions whereby everyone may enjoy his civil and political rights. To establish and retain
an order where human beings can live as their inherent dignity requires, and to supplement
the existing domestic means for the observance of the rights by making them enforceable
by other states parties and by monitoring bodies which the treaty may have established.

The nature of state obligations imposed by the Convention is defined in Part II of ICCPR.
Article 2 reads:

“Each State Party … undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant
….”

From this article derives the principal obligations under ICCPR; implementation is absolute
and immediate and the basic role of the State is non-interference. But the full
implementation of Covenant cannot be achieved alone by obliging state to abstain from
encroachments upon the rights. The Human Rights Committee, while not expressly using the
language of the tripartite typology, has also remarked that states parties have more than a
mere obligation to ‘respect’ the right to life guaranteed in the ICCPR. It reads:

"the Committee considers that States have the supreme duty to prevent wars, acts of
genocide and other acts of mass violence causing arbitrary loss of life…The
expression ‘inherent right to life’ cannot properly be understood in a restrictive
manner, and the protection of this right requires that States adopt positive
measures. In this connection, the Committee considers that it would be desirable for
States parties to take all possible measures to reduce infant mortality and to increase
life expectancy, especially in adopting measures to eliminate malnutrition and
epidemics".

Under Article 2(3) States Parties undertake to ensure that a person whose rights are violated
has an effective remedy and that a person claiming such a remedy has his/her right
determined by competent authorities provided by the State’s legal system. States Parties
also undertake to develop the possibility of judicial remedies and to ensure remedies are
enforced.

Access to the Judicial System: It has often been argued that the right to legal assistance is
the cornerstone for civil and political rights. Even though there is no explicit provision in
human rights treaties discussing access to courts as a principle of international human rights

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law, the concept has been found to be implicit in the statement that "all persons shall be
equal before the courts and tribunals", found in all major human rights treaties.

The ICCPR, under Article 14 par. 3 (d) of the ICCPR establish that all persons have the right,
"to be tried in his presence, and to defend himself in person or through legal assistance of
his own choosing; to be informed, if he does not have legal assistance, of his right; and to
have legal assistance assigned to him, in any case where the interests of justice so require
and without payment by him in any such case if he does not have sufficient means to pay for
it".

The human rights Committee and the implementation of ICCPR: The “Human Rights
Committee” was established by Article 28 of the ICCPR. Its functions are outlined in Part IV
of the Covenant. It has the role of monitoring and supervising the implementation by States
Parties of their obligations under the ICCPR. The Human Rights Committee is the principal
actor at the international level mandated to enforce the rights enunciated in the ICCPR. The
List of Issues covers by human rights Committee include:-

i. the right to life

ii. the right to freedom from torture
iii. the right to liberty and security
iv. the right to a fair trial
v. the right to freedom of association and assembly
vi. the right to freedom of expression
vii. the right to an effective remedy
viii. the right to privacy and
ix. the right to freedom from discrimination.

Under the First Optional Protocol, the Committee can receive Individual Communications
from any individual under the jurisdiction of a State that is party to the First Optional
Protocol who claims that his/ her rights under the Covenant have been violated by the State
Party. Only the person who is a victim of a violation of articles 2 – 27 of the ICCPR or their
representative can submit a complaint. The representative must show that they have a close
connection with the victim, for example a close relative. If a complaint is declared
admissible, the Committee examines the communication and decides whether a violation of
Covenant rights has occurred. If there is a violation, the Committee requests the state to
provide reparation to the victim such as release from detention and so on.

Thus, the most important feature of the Covenant is that it is a universal instrument
containing binding legal obligations for States parties that protects stateless persons as well
as nationals. The high number of States parties to the Covenant and the fact that many of its
provisions are now part of customary international law point to its huge significance in
international law.

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In conclusion, it can only be pointed out that the number of communications to the
Committee has grown steadily over the years, ensuring that individuals have a forum at
which to hold States parties accountable for non-implementation of the rights guaranteed in
the ICCPR. Traditionally the guarantee of human rights had been responsibility of the states
in accordance with their national legal system. There is no generally recognized
international authority to which an individual could address claiming to be a victim of a
human rights violation, and which could decide a complaint.

The individual communication procedure established by Optional Protocol is a major

achievement in the protection of human rights at the international level. But the main
deficiency is still the lack of binding jurisdiction of the Human Rights Committee. The main
success is the recognition of individuals as holders of international claims to respect the
Covenant rights and for the reparation if they are victims of a violation of these rights.
Human rights law has changed rediscovering the international status of the individual.

3. Distinguished between collective rights and individual rights. Discuss at least two major
collective rights. 7+8= 15 (NEHU 2018)

Ans: Introduction

The very essence of human beings is the inalienable rights and freedoms of an individual
endowed by nature and recognized by the society and government of the day. These rights
and freedoms can further be distinguished into collective, individual and group rights.
Collective rights are those rights which allow a particular community/ tribes to available the
provisions as according to the laid down principles. For example, the Fundamental Rights of
the Indian Constitution, the Bills of Rights of the American Constitution and the Universal
Declaration of Human Rights. Individual rights are those rights which allow an individual to
exercise the provisions for his/ her own well-being. For example, right to privacy, right to
vote and right to work. Group rights on the other hand, refer to a set of rights which allow a
particular section of the society to practice and exercise the provisions for the well-being of
the people. For example, equal pay for equal work, elimination of all form of discrimination
and right to receive adequate relief in times of distress and difficulty.

As such, the distinction between collective rights and individual rights can be summarized as
follows;

i. Collective rights continued to fight against the considerable discrimination against

women primarily because women face a multitude of constraints imposed by
society and not by law. As such, some of the collective rights for women are; The
Convention on the Political Rights of women adopted and opened for signature
and ratifications by the General Assembly on 20th December, 1952; The Convention
on the Nationality of Married women adopted by the General Assembly in 1957;

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 and The Declaration on the Elimination of Discrimination against Women by the
General Assembly in 1967.

Individual rights on the other hand, refer to a person’s identity such as nationality.
For example, the 1992 Declaration on the Rights of persons belonging to National
or Ethnic, Religion and Linguistic Minorities adopted by the UN General Assembly
on 18th December, 1992 to ensure more effective implementation of international
human rights instruments with regard to the rights of persons belonging to
national or ethnic, religious and linguistic minorities.
ii. Collective rights are usually with respect to a particular section in the society such
as women, children and minorities. These sections of the society are regarded as
vulnerable due to the fact that, they are less in terms of population. Some of the
collective rights of women, children and minorities are; The Declaration on the
Elimination of Discrimination against Women which was adopted unanimously by
the General Assembly on 7th November, 1967as it was felt that the discrimination
against women has continued to exist even after the Charter of the UN, the UDHR,
the ICHR and the progress made in the matter of equality of rights. It consists of 11
articles which have often been described as the “International Bill of Rights for
women”. It came into force in 1981and as by 5th December, 2013, it has 187 state
parties.

The Convention on the Rights of Child was adopted by the General Assembly on
20th November, 1989 and came into force on 2nd September 1990. This convention
is most widely accepted human rights instruments as it has been ratify by 192
countries of the world. Only two countries that are America and Somalia had not
ratified so far.

And the Rights of Minorities which was prepared by the Sub-Commission on

Prevention of Discrimination and Protection of Minorities at its 4 th session in 1951
with certain amendments made by the Commission on Human Rights at its 8 th
session in 1952 which was adopted as article 27 of the International Covenant on
Civil and Political Rights.

On the other hand, individual rights are usually with respect to a particular person
such as woman, child and minority. Some of these initiatives are; the UN Report of
1980s which says that, women constitute half of the world’s total population,
perform nearly two-third of its work hours, receives one-tenth of the world’s
income and own less than one hundredth of world’s property. As such,
advancement of right of women has been the concern of world community since
the end of the 2nd World War.

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 Children are the most vulnerable section of our society as they are exploited in
various ways. And so, to protect them from exploitation and provide them
opportunities for harmonious development, the UN has focused its attention on
their problems since 1946. The temporary Social Commission of the Economic and
Social Council recommended that the provisions of the Geneva Declaration of 1924
should be treated as binding on the peoples of the post 2nd World War period.

And with regards to minority, the Council observed that it needs more thorough
study of the whole question and suggested that a suitable definition for the term
“minority” should be formulated. In pursuance of this observation the definition of
the term “Minority” states, “a group of citizens of a State, constituting a numerical
minority and in a non-dominant position in that State, endowed with ethnic,
religious or linguistic characteristic which differ from those of the majority of
population, having a sense of solidarity with one another, motivated if only
implicitly by a collective will to survive and whose aim is to achieve equality with
the majority intact and in law”.

The two major collective rights can be discussed as follows;

1. International Women’s year 1975: The General Assembly adopted a resolution on 18th
December, 1972, providing for; that all the members States and all international
organizations should take steps to ensure the full realization of the rights of women and
their advancement on the basis of the declaration on the Elimination of discrimination
against women and the observance of international women’s year.

It also lays down the following objectives;

I. To promote equality between men and women.

II. To ensure the full integration of women in the total development efforts.
III. To emphasize women’s responsibility and important role in economic, social and
cultural development at the national, regional and international levels, particularly
during the 2nd United Nations Development Decades and
IV. To recognize the importance of women’s increasing contribution to the development
of friendly relations and cooperation among States and to the strengthening of world
peace.

2. The 1959 Declaration on the Rights of Child: On the basis of the provisions of Geneva
Declaration of 1924, the Temporary Social Commission prepared in 1950, the draft
Declaration on the Rights of Child which was adopted by the General Assembly of the UN on
20th November, 1959. It contained ten principles which formed code for the well-being of
every child. Some of these principles are;

i. The child shall enjoy all the rights set forth in this declaration. All children, without
any exception whatsoever, shall be entitled to these rights, without distinction or

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 discrimination on account of race, color, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status whether of himself
or of his family.
ii. The child shall enjoy special protection and shall be given opportunities and facilities
by law and other means, to enable him to develop physically, mentally, morally,
spiritually and socially in a healthy and normal manner and in the condition of
freedom and dignity. In the enactment of laws for this purpose, the best interests of
the child shall be the paramount consideration and
iii. The child shall be protected from practice which may foster racial, religious and any
other form of discrimination. He/ She shall be brought up in a spirit of
understanding, tolerance and friendship among peoples, peace and universal
consciousness that his / her energy and talents should be directed to the service of
his fellow men.

In conclusion, it can only be said that our world leaders and government of the day can only
make legislations and give directives to all stakeholder to be abide and adhered by the
principle of human dignity, and so it becomes a duty for every right thinking citizen of the
day to decide where we stand today. Law and regulations has always been a part of our
human lives, but history bears the witness that, to bring a change largely depends upon the
people as to how we visualize the future.

Collective and individual rights will always be a part and parcel of our human society, but to
see how far it has been effective and what are the changes that have been brought about so
far depends on our perspective towards the society and our ability to conceive the change.

***

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