International Law 2021 Human Rights

HUMAN RIGHTS - INTRODUCTION

Development of Human Rights
England - One of the earliest and most important instance of an official
document talking about human rights is Magna Carta.
Magna Carta Libertatum (The Great Charter of Freedom), was a royal charter
of rights agreed to by King John of England at Runnymede, near Windsor, on 15
June 1215.
The Bill of Rights 1689 was also a landmark Act in the constitutional
law of England that sets out certain basic civil rights and clarifies who would be
next to inherit the Crown.

USA - The works of English-American writer Thomas Paine (1737–1809)

helped fuel American colonists' desire for independence. His ‘Common
Sense pamphlet (1776)’ inspired the drafting and signing of The Declaration of
Independence (1776) of USA, in the preamble of this declaration it is written
"all men are created equal, that they are endowed by their Creator with
certain inalienable rights, that among these are Life, Liberty and the pursuit of
Happiness." This is the basic idea of natural rights.

France - On 26 August 1789, the French National Constituent Assembly

issued the Déclaration des droits de l'homme et du citoyen (Declaration of the
Rights of Man and the Citizen) which defined individual and collective rights at
the time of the French Revolution.

Modern Concept of Human Rights

The concept of human rights as it is now understood emerged in the 20th century
after World War II (1938–1945).
In 1948, the member states of the United Nations drafted the United Nations
Universal Declaration of Human Rights (UDHR). Since the adoption of the
declaration, the UN, national governments, and independent organizations have
worked to advance, promote, and enforce human rights throughout the world.

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Are Human Rights Universal?

Universalism and Cultural Relativism
Universalism
Universalism holds that more “primitive”
cultures will eventually evolve to have the
same system of law and rights as Western
cultures.
Cultural Relativism
Cultural relativists hold an opposite, but
similarly rigid viewpoint, that a traditional
culture is unchangeable.

Universalism says that there are certain
rights which are same for all human beings
just because they are humans without
depending upon the race, sex, age,
religion, culture etc of the person.
Cultural Relativism advocates restricting
some of those rights which do not go in
consonance to the traditional culture

Individual is the basic social unit,
possessing inalienable rights, and driven
by the pursuit of self-interest.
Supports concept of Human Rights,
considers human rights as extra cultural
A community is the basic social unit.
Community rights are above individual rights.
Considers Human Rights as a western
concept and against the local culture,
concepts such as individualism, freedom of
choice, and equality are absent

The concept of Universalism is based on three fundamental jurisprudential theories-

The Natural Law Theory - The main point of this theory is that natural law
is standing above manmade positive law and defines the eliminable human
rights, which are necessary for all the nation-states.

Rationalism - A theory of universal laws based on a belief in the universal

human capacity to reason and think rationally. Rationalism supersedes the idea
of divine origin of natural law with the theory that each individual is endowed
with certain rights due to the universal capacity of all individuals to think
rationally.
Both natural law theory and theory of rationalism consider universal
human rights not to depend on cultural diversities and specialties.

Theory Of Positivism – This theory demonstrates the existence of universal

human rights noting the acceptance and ratification of human rights
instruments by vast majority of states regardless their cultural background.

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Criticism of Cultural Relativism

One of the major drawbacks of the theory of Cultural relativism is the
perception of “culture” as something unchanging and stable.
Opponents of this theory argue that Cultural relativism can be dangerous for
the effectiveness of international protection of human rights, since the nature
of the theory fundamentally justifies human rights abuses linking to the
customs and traditions of the society. The old Indian tradition of sati is a bright
example of human rights violation with cultural bases. Practise of Sati was
discontinued long back but one instance of it happened in 1987, which is not
that long back in my opinion.
In India, Cultural Relativists brand human rights defenders and activists as
Western imperialists who are superseding old Indian traditions with Western
ones.

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THE INTERNATIONAL BILL OF RIGHTS

After the end of WW II a series of conventions and declarations relating to Human
rights began to form

International Bill of Human Rights is a term collectively used for:

Universal Declaration Of Human Rights (Udhr) (1948)
International Covenant On Civil And Political Rights (1966) And The Optional
Protocols (ICCPR)
International Covenant On Economic, Social And Cultural Rights (1966) And The
Optional Protocol (ICESCR)

UDHR (1948)
On 10th December 1948 the United Nations General Assembly adopted the UDHR.
This was the first time that countries agreed on a comprehensive statement of
inalienable human rights. The UDHR is not a treaty, so it does not directly create legal
obligations for States. The Declaration has however, had a profound influence on the
development of international human rights law. It is argued that because States have
constantly invoked the Declaration over more than 50 years, it has become binding
as a part of customary international law.
A summary of the 30 articles of the Universal Declaration of Human Rights and their
corresponding Right we can find in Constitution of India

UDHR (Article Number) Indian Constitution

1. All people are entitled to rights without distinction Art. 14 , Art. 16 (1)
based on race, color, sex, language, religion, opinion,
origin, property, birth or residency.

2. All Human beings are free and equal in dignity and Art. 15, Art. 16(2) and Art. 17
rights
3. Right to life, liberty and security of person. Art. 21, Art. 23, Art. 24 and Art. 17
4. Freedom from slavery Art 17 and Art 23, 24.
5. Freedom from torture Art 20, 21, 22
6. Right to be treated equally by the law Art 14
7. Right to equal protection by the law Art 14, Art 39A

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8. Right for all to effective remedy by competent Art 14, 20, 21,22
tribunal
9. Freedom from arbitrary arrest. Art 22
10. Right to a fair public hearing by independent Art 20, 21, 22, 39A
tribunal
11. Right to presumption of innocence until proven Art 20, 21,22, 39A
guilty at public trial with all guarantees necessary for
defense
12. Right to privacy in home, family and Though not specific, Art 21 is invoked
correspondence
13. Freedom of movement in your own country and Though not covered specifically, Art 21
the right to leave and return to any countries is invoked.

14. Right to political asylum in other countries N/A

15. Right to nationality N/A
16. Right to marriage and family and to equal rights Not Covered in Consti, Covered in
of men and women during and after Marriage Personal Laws

17. Right to own property Originally present inArt. 19(1) (f) and
Art. 31, now present in 300A
18. Freedom of thought and conscience and religion Art 19, 25, 26, 27, 28
19. Freedom of opinion and expression and to seek, Art. 25, Art. 26 and Art. 28 . Also, The
receive and impart information Right To Information Act 2005
20. Freedom of Association and assembly Art. 19(1) (b)
21. Right to take part in and select government numerous provisions
22. Right to social security and realization of Art 29, 30, 43
economic, social and cultural rights
23. Right to work, to equal pay for equal work and to Art 19, 39,
form and join trade unions
24. Right to reasonable hours of work and paid Art 42, 43
holidays
25. Right to adequate living standard for self and Art 47, and other Provisions of Part IV
family, including food, housing, clothing, medical (DPSP) of Constitution
care and social security
26. Right to education Art 21A
27. Right to participate in cultural life and to protect Art 29, 30
intellectual property rights
28. Right to social and international order permitting Art 38
these freedoms to be realized
29. Each person has responsibilities to the Art 48A, Art 51A
community and others as essential for a democratic
society
30. Repression in the name of rights is unacceptable. Art 32, Art 226

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International Covenant on Civil and Political Rights

(1966) (ICCPR)
 Adopted by the UNGA on December 19, 1966,
 Came into force on March 23, 1976.

The ICCPR recognizes the inherent dignity of each individual and undertakes to
promote conditions within states to allow the enjoyment of civil and political rights.
Countries that have ratified the Covenant are obligated “to protect and preserve basic
human rights… and compelled to take administrative, judicial, and legislative measures
in order to protect the rights enshrined in the treaty and to provide an effective
remedy.”

Article 4 of the ICCPR identifies absolute (or non-derogable) rights which cannot be
infringed in any circumstances.

Article 4 of ICCPR allows for certain circumstances for States Parties to derogate from
their responsibilities under the Covenant, such as during times of public emergencies.
However, State Parties may not derogate from the following articles:
o Article 6 (Right to Life),
o Article 7 (Protection from Torture and cruel or degrading treatment),
o Article 8 (Protection from slavery and compulsory labour),
o Article 11 (No Imprisonment for Breach of Contract),
o Article 15 (No retrospective criminal laws),
o Article 16 (Right to be Recognized as a Person),
o Article 18 (freedom of thought, conscience and religion)

Two optional protocols to the ICCPR which gives additional human rights protections.
First Optional Protocol:The first Optional Protocol came into force with the
Covenant. This protocol allows victims of human rights violations to be heard.
The Human Rights Committee (Committee), which is established by the
Covenant, has the jurisdiction to receive, consider and hear communications
from victims. There are currently 35 signatories and 115 parties to this
protocol.

Second Optional Protocol: This protocol aims to abolish the death penalty. It
was entered into force on July 11, 1991 and it currently has 37 signatories and
81 parties.

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International Covenant on Economic, Social and

Cultural Rights 1966 (ICESCR)
 Adopted by the UNGA on 16th December 1966
 Came in force from 3rd January 1976.

The United Nations Committee on Economic Social and Cultural Rights (the CESCR)
monitors compliance with the ICESCR and provides guidance on how countries should
interpret the ICESCR.

The ICESCR includes inter alia the following human rights:

 Economic - Right to work, just and favourable conditions, right to strike,

protection of property
 Social - Right to social security, right of families, mothers (before and after
childbirth) and children to special protection and assistance, right to an
adequate standard of living, right to health
 Cultural - Right to education and right to take part in cultural life

Optional Protocol
On 10th December 2008, the UN General Assembly adopted an optional
protocol to the ICESCR regarding an individual complaints’ mechanism. This
protocol, which came into force on 5th May 2013, allows the Committee on
Economic, Social and Cultural Rights to consider complaints from individuals to
the effect that a state which has ratified the optional protocol has violated
their rights under the ICESCR.

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GROUP RIGHTS
WOMEN – CEDAW and DEVAW
Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW) - 30 Articles
o Adopted on 18th December, 1979
o Came into force on 3rd September, 1981

Article 1 -4 – What countries need to do to eliminate discrimination

 Embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation
 To adopt appropriate legislative and other measures, including sanctions
where appropriate
 modify or abolish existing laws, regulations, customs and practices which
constitute discrimination against women
 To modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and outdated customary
practices
Article 5-16 – Lists Discriminations which need to be eliminated. All women should
have equal right as men in the following.
Politics - Vote, contest elections, holding public office participate in political life of country
and also represent the government internationally and other related rights
Education - same conditions for career and vocational guidance, pre-school, general,
technical, professional and higher technical education and other related rights
Employment - right to the same employment opportunities, choice of profession, job
security and promotion and other related rights
Health – Maternity leave, special protection measures during pregnancy and other related
rights.

Article 17-30 – Specific provisions related to administration of the treaty

The implementation of the Convention is monitored by the CEDAW Committee, the
Committee is composed of 23 experts nominated by their governments and elected by the
States parties as individuals "of high moral standing and competence in the field covered by
the Convention".

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Declaration on the Elimination of Violence Against Women (DEVAW)

Adopted on 20th December 1993 – has 6 Articles

Made for recognizing the urgent need for the universal application to women
of the rights and principles with regard to equality, security, liberty, integrity
and dignity of all human beings

CHILDREN - Convention on the Rights of Child (CRC) - 53 Articles

 Adopted by General Assembly on 20th November, 1989
 Came into force on 2nd September, 1990

o Child is defined as a human being below 18 years of age (Article 1)

o Non-Discrimination (Article 2)
o Right to life, survival and development (Article 6)
o Right of views of child and right to expression of child (Article 12)
Optional Protocols of the convention are relating to Children in armed
conflict, sale of children, child prostitution and child pornography

PERSONS WITH DISABILITIES - Convention on the Rights of Persons

with Disabilities (CRPD) - 50 Articles
o Adopted on 13th December 2006
o Came into force on 3rd May 2008

The Convention guarantees persons with disabilities inter alia the right to:
 an independent and autonomous life
 his or her own family
 employment
 an adequate living standard and social protection;
 access education
 participate in public and cultural life, and
 protection against multiple discrimination, violence, exploitation and abuse

States parties are obliged to create 'focal points' that supervise the implementation
of their commitments under the Convention. They must also develop a national
programme to implement and promote the Convention.

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MINORITIES AND WEAKER SECTION - Declaration on the Rights of

Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities - 9 Articles
Adopted on 18th December 1992
Article 1 – Responsibility of State to protect Minority Rights.
Article 2 – Minorities have the following rights
 Right to practise and profess their culture,
 Right to be part of public life and Decision making process of state without discrimination,
 Right to form associations,
 Right to form contacts with other people of your minority group.
Article 3 – The above right can be exercised individually or as a group
Article 4 – State shall take measures, create favourable conditions, provide opportunities to the
Minorities.
Article 5 – National policies should not hamper legitimate interests of minorities.
Article 6 - 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.
Article 7 - States should cooperate in order to promote respect for the rights set forth in the
present Declaration.
Article 8 – Measures taken because of this declaration:
 will not prevent states from fulfilling its International Obligation
 shall not prejudice the enjoyment by all persons of universally recognized human
rights and fundamental freedoms.
 shall not prima facie be considered contrary to the principle of equality contained in
the Universal Declaration of Human Rights.
 shall not be contrary to the purposes and principles of the United Nations, including
sovereign equality, territorial integrity and political independence of States.
Article 9 - The specialized agencies and other organizations of the United Nations system shall
contribute to the full realization of the rights and principles set forth in the present Declaration,
within their respective fields of competence.

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