HUMAN RIGHTS

Q. Nature

1) HR are inalienable
2) HR are indivisible, interdependent and interrelated
3) HR are universal

• HR are freedoms established by customs & international agreements that impose standards of
conduct on all nations.
• They are distinct from civil liberties.
• HR are inalienable fundamental rights to which a person is inherently entitled because he is a human
being.
• They are conceived as universal and egalitarian.
• These rights may exist as natural rights or as legal rights, in both national and international.
• HR include the right to personal liberty & due process of law; to freedom of thought, expression ,
religion, organization & movement; to freedom from discrimination of the basis of sex, race,
religion and language; to the basis of education; to employment and to property.
• Have been defined by the covenants, treaties and by organizations, particularly by the UN
• Prohibits torture, slavery, summary execution without trial and arbitrary detention or exile.
• HR are fundamental rights; without them there is no life and dignity of man.

a) Inalienable
• One cannot lose them since they linked to the very fact of human existence.
• It is inherent to all human beings.
• Some maybe suspended or rejected
• Eg: If one commits a crime, his/her libery can be taken away.

b) Indivisible
• Can’t be viewed in isolation from each other
• All rights are important. Enjoyment of one right depends on enjoyment of many other rights

c) Universal
• Apply equally to all people in the world with no time limit.
• Every individual is entitled to enjoy his/her human rights without distinction of race or
ethnic background, color, sexual orientation, disability et cetera.

Q. Origin & Evolution

• 13th century - England – after violation of ancient laws by King John, his subjects
forced him to sign the Magna Carta, or Great Charter which came to be known as
human rights.
• Among them was the right of church to be free from government interference, rights
of all free citizens to own and inherent property & be free from excess taxes.
 • Established the rights of widows who owned property to choose not to re marry &
establish principles of due process & equality before law.
• Contained provisions forbidding bribery.
• Magna Carta – Why? – To develop a legal system that would no longer be based on a
individual ruler’s system of law. System of law even rulers would have to abide.
• Major religions established comprehensive, coherent, moral codes of conduct based on
divine theory –contained ideas of dignity of human beings.
• ‘Glorious Revolution’ of 1688 saw King on the throne, also led to the English Bill of
Rights. It made the King the subject to rule the law , like any citizen. Required the
King to respect the power of the Parliament elected by the people, with the power to
control states’ money & property. Protects basic rights to justice. Guaranteed
impartial judges and juries. Established the people’s preferred Protestant religion,
when a Catholic King was thought to endanger the sovereignty of England. Pope in
those days was relatively powerful.
• 17th & 18th Century in Europe – Philosophers proposed the concept of “ natural
rights” – Rights belonging to a person by nature & not by the virtue of it’s
citizenship in a particular country or membership in a particular country or
membership in a particular country or ethnic group. Concept has authentic origin
in the works from 17th century John Locke.
• Concept of universal rights took place – philosophers like Thomas Paine, John
Stuard Mill & Henry David Theoran expanded the concept.
• Work has been influential on individuals like Leo Tolstoy, Mahatama Gandhi &
Martin Luther King.
• 1776 – British colonies in North America proclaimed their independence from British
Empire in US Declaration of Independence written by Thomas Jefferson.
• 1789 – People of France overthrew their monarchy & established the first French
Republic. Later that year, National Assembly of France adopted Declaration of the
Rights of Man & of the Citizen. They proclaimed independence of all people before
the law & other inalienable rights & liberties.
• 19th & first half of the 20th century – HR activists largely tied to political & religious
groups & beliefs. Revolutionaries pointed at the atrocities of the government as proof
to end their abuse.
• Specific civil rights & HR movements managed to affect social changes this time. A)
Labour Union B) National Liberation Movement C) Women’s Rights Movement
• Most influential - Mahatma Gandhi to free India from the British Rule and civil rights
movement.

Q. Magna Carta

• Magna Carta, means ‘The Great Charter’, is one of the most important documents in history as it
established the principle that everyone is subject to the law, even the king, and guarantees the rights
of individuals, the right to justice and the right to a fair trial.

• The Magna Carta was first authorized in June 1215 at Runnymede, on the River Thames, near
Windsor. Paintings depicting the signing of the document often show King John with a quill in his
hand, thought he most likely authorized the document using the Great Seal rather than a signature.
 • In 1215, King John agreed to the terms of the Magna Carta following the uprising of a group of
rebel barons in England. The barons captured London in May 1215, which forced King John’s hand
and caused him to finally negotiate with the group, and the Magna Carta was created as a peace
treaty between the king and the rebel. The whole document is written in Latin, and the original
Magna Carta had 63 clauses.

• Today, only three of these remain on the statute books; one defends the liberties and rights of
the English Church, another confirms the liberties and customs of London and other towns, and the
third gives all English subjects the right to justice and a fair trial.

• John agreed to the Magna Carta at first, he disliked it when its terms were forced upon him. He
wrote to the Pope to get it annulled, who agreed with John despite the strain between the King and
the Church at the time.

• The Pope called the Magna Carta “illegal, unjust, harmful to royal rights and shameful to the
English people”. He then declared the charter null and void of all validity forever.

Q. UN Charter

• Signed in San Francisco – Oct (1945) World War I (1919) and World War II (1939) both the
world wars inspired the awakening to the value of human life. The United Nations charter
is pervaded by the deep attachment of Human Rights. The aim of the charger is to save
the humanity from the scourge of War and the complete development of human
personality, his liberties, and scope for the same

• Well established document – Contains Preamble, 111 articles and 19 chapters

• Article 7 – Six established organs 1)UNGA 2) ICJ 3) Security Council 4) Trusteeship Council
(suspended) 5) Secretariat 6) ECOSOC

• Seven important articles – Article 1, 13(1)(b) , 55 & 56 (read together), 62, 68 and 76.

• Nicaragua v. USA

• ECOSOC important resolutions – 1235 (1967) & 1503 (1980)

• 1235 (1967) – There shall be an annual public debate which focuses on human rights,
fundamental freedom & racial discrimination.
 • 1503 (1980) – Mechanism of investigation of specific instances involving violation of rights. It
was discussed internationally.

• To maintain International peace and security, and to that a and to take effective measures for
prevention and removal of the threats to the peace, and for the suppression of act and aggression
or in other breaches of the peace and to bring about peaceful means and in conformity with the
principles of justice and international law, adjustment or settlement of international disputes and
situations which might lead to a breach of the peace.

• To develop friendly relations among Nations based on respect for the principle of equal rights
and self-determination of peoples

• To achieve International Corporation in solving International problems of an economic social

cultural or humanitarian character and in promoting and encouraging without distinction as to
race, sex, language or religion.

• To be a Centre for harmonizing the actions of nations in the attainment of this common end

• The language of Charter is vague & although the membera pledge themselves to the realization of
human rights they were not required to do so within a particular frame time.

• The Charter failed to define the fundamental freedoms & human rights , nor did it prove any
machinery to secure their observance, the subsequent UN instruments fulfilled their task.

Q. UDHR

• The Universal Declaration of Human Rights (UDHR) emerged in 1948 as a reaction to

the atrocities and oppression caused by the Second World War. It was for the first time
that the rights and Freedoms of individuals were detailed and there was international
acknowledgement of the “inherent dignity and of the equal or inalienable rights of all
members of the human family as the foundation of freedom, justice and peace in the
world”. The UDHR emphasized that ‘a common understanding of these rights and
freedoms is of the greatest importance for the full realization of rights contained therein’.
The UDHR contains rights that were culturally and politically acceptable to most
countries 69 across the world, thereby imparting a universal character to the
 Declaration. The Indian Constitution in fact, exemplifies the ‘common understanding’ of
basic human rights as it incorporates the principles outlined in the UDHR in the form of
Fundamental Rights and Directive Principles of State Policy.

• The articles of the Charter have the force of positive international law as a Charter is a
treaty and therefore a legally binding document. All United Nations Member States must
fulfill in good faith, the obligations to observe, promote and respect human rights and to
cooperate with United Nations and other nations to attain this aim. After the
establishment of the United Nations, in order to discharge its commitment for the
promotion of Human rights it has established a small committee of nine members on
February 15, 1946 to take steps for the preparation of an International Bill of
Human Rights.

• Main Provisions – Civil and Political Rights; Economic, Social and Cultural Rights

• Civil and political rights are in the first generation of rights. These are negative rights,
and they restrict States interference in people's personal freedoms. The first generation
rights relate to liberty. The first 21 articles of the UDHR are basically civil and political
rights. They are rights that seek to justify the physical integrity of the human being, and
they include the right to life, liberty, personal security, freedom from slavery,
discrimination, equality of human being, the right to recognition, nationality,
effective remedy, right to own property, freedom from arbitrary arrest, freedom of
movement, marriage, religion, thought and conscience. The right to equal treatment
and protection under the law does qualify as a civil right but is essential for realizing the
economic, social and cultural rights. There are also the due process rights among the civil
rights, and these entail the right to public hearing by an independent and impartial
tribunal, the presumption of innocence and legal assistance

• Economic, social and cultural rights are the rights that protect individuals’ socio-
economic and cultural needs. The International Covenant on Economic, Social and
Cultural Rights was adopted by the General Assembly in 1966, entered into force in
1976, and gives these rights legally binding force. The Universal Declaration of Human
Rights, in articles 22 through 28, makes mention of the following rights: right to social
security, rights to desirable work and to join trade unions, right to rest and leisure, right to
adequate standard of living, right to education, right to participate in the cultural life of
the community, and the right to social order articulated by the UDHR. These are also the
second generation rights.
• Universal Declaration of Human Rights Adopted and proclaimed by general resolution
217A(III) of 10th December, 1948. The declaration contains a preamble and 30 Articles.
The preamble specifies the objectives and the Articles deal with Civil and Political Rights,
Economic, Social and Cultural Rights, while a few articles of this declaration deal with the
duties to be performed by all agents (this includes the states to render their duties towards
other states, to their 79 people and minimum guarantees to the whole mankind wherever they
reside. At the same time, impose legal and moral obligations on the society towards
individual’s vis-à-vis individuals towards society and international community). In other
words, the declaration became the cornerstone of international law to achieve its basic aim
and object of securing peace and security, the concept of one world and to make the world
free from the fear of war. This evident from the fact that through international law gave birth
to the concept of human rights only six decades ago, in the contemporary era, every branch
of international law has an influence of human rights. Moreover, in crystallizing new norms
to regulate the international relations of states, many a times they incorporate human rights as
the basis. implementation of which has been left to the discretion of the purities to the
declaration. It does not create any legal obligation on the part of the states. Even an
individual whose Human rights had been violated cannot have recourse to the international
court of Justice. Article 35 of the charter of the United Nations clearly provides that the court
shall be open only to the parties to its statute. The continuous adherence and reference to the
UDHR on parameter with the Charter of the United Nations by member states made it more
than a legally binding document.
Q. ICCPR

• The United Nations International Covenant of Civil and Political Rights (ICCPR) attempts to
ensure the protection of civil and political rights. It was adopted by the United Nations’ General
Assembly on December 19, 1966, and it came into force on March 23, 1976. The International
Covenant on Economic Social and Cultural Rights, the Universal Declaration of Human Rights,
and the ICCPR and its two Optional Protocols, are collectively known as the International Bill of
Rights.

• 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. There are currently 74 signatories and 168 parties to the
ICCPR.

• There are two optional protocols to the ICCPR which gives additional human rights protections.

1) This protocol allows victims claiming to be 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. The first Optional Protocol came into
force with the Covenant. There are currently 35 signatories and 115 parties to this protocol.

2) 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.

Q. Development of human rights regime

The history of human rights, in fact, is traced back to ancient times and has gained impetus only
in recent times. It has formally became recognized only after the formation of the United Nations
in 1945, which has, as its central concern, reaffirmed its faith in the fundamental human rights, in
the dignity and worth of human person at all levels and under all circumstances. The term human
rights virtually denote all those rights inherent in our nature and without which one seizes to be a
human being.» Human rights which are essentially individual in character, for they are meant to
be enjoyed by individuals constitute a social phenomenon by virtue of those for whom they are
meant to be enjoyed of those for whom they are intended. The origin of human is traced by some
scholars back to the times of ancient Greeks. The fact that human rights were recognized as
natural rights of man is illustrated by a Greek play Antigone. The roots for the protection of the
rights of an individual may be traced as for back as in the Babylonian laws, Assyrian laws,
Hittite laws and in the all major religions of the world. In Philosophy, the development of the
notion of the natural rights of man was contributed by the stoic philosophers. They first
developed natural law theory and by virtue of it they explained the nature of human rights, i.e.
rights which every human being posses by virtue of being human. Generally it is said that the
struggle for human rights started in the Western world sometimes in the beginning of 13th
century, when the great English Charter known as Magna Carta was issued but the fact is that
this struggle had started even 200 years prior to the issue of this charter determining the rights of
the parliament in 1037 C.E.53 Though the established fact is that concept of 'Human Rights'
existed, before the Magna Carta (Bill of Rights), came into existence. However, Magna Carta
enjoys the status of a milestone in the history of human rights. Henry I, Stephen and Henry II,
although, assured to accept this charter, they did not keep up to their promise. King John, who
was also known as John, 'The Tyrzint' because of his hard temperament, signed this charter. This
charter was also issued in 1216,1217 and 1325 after being amended and modified. The
expression 'fundamental rights of man' was stated in the declaration. Thus, the term human rights
came somewhat late in the vocabulary of mankind. It is a twentieth century name for what has
been traditionally known as 'natural rights' or the 'rights of man'. It was first used by Thomas
Paine in the English translation of the 'French Declaration of the Rights of Man and Citizen'. The
term natural law was subsequently replaced as it had become a matter of great controversy and
the phrase 'the rights of man' was found unsuitable as it was not universally understood to
include the rights of women. The idea that human rights could be protected by international law
in addition to municipal law developed slowly mainly because the doctrine of absolute state
sovereignty continued to prevail in the ninetieth and early twentieth century where in human
rights question were regarded as a matters entirely within each state's own domestic jurisdiction
and wholly inappropriate for regulation by international law. International human rights laws
were considered as an attack upon the concept of state sovereignty. No doubt, there were
exceptions to the above rule which included the adoption of the Slavery Conventions of 1926
and the establishment in 1919 of the International labour Organization and its subsequent
activities. The covenant of the League of Nations adopted at the end of First World War was
silent on the issue of human rights.^^ The turning point for the traditional approach in
international law came in 1940's in midst of the extreme human rights abuses in Europe during
the World War II. Shocking crimes were committed against the humanity and there was a total
suppression of fundamental human rights. Nazi leaders of Germany have established a regime of
complete lawlessness and tyranny and had barbarously negated human values and digruty within
the territory under their occupation. It was consequently realized that the restoration of the
freedom to the common masses is one of the essential conditions for the establishment of
international peace and security. Violation of human rights was considered as a source of
international conflict and protection of human rights was regarded as necessary for international
peace. This conviction was reflected in the proclamation issued by President Franklin D.
Roosevelt on January 6, 1941 which came to be known as 'Four Freedoms' freedom of speech,
freedom of religion, freedom from want and freedom from fear. In his message he declared;
"freedom means the supremacy of human rights everywhere. Our support goes to those who
struggle to gain these rights or Iceep them". The same efforts for the creation of an international
organization, in order to establish peace, were being made even when the World War II was in
progress. Many declaration adopted by the conference laid down the importance of human rights.
Later, at San Francisco conference it was expressed by several delegates that the United Nation's
should established an 'International Bill of Rights'. Although that could not be done it was
realized by the members that it should be the obligation of the international community to co-
operate in eradicating the scourge of war, and they were therefore determined that the promotion
and respect for human rights which at present constitute so important and so conspicuous, be an
integrated part of the United Nation's Charter. The result was that the charter contains provisions
for the promotion and protection of human rights and fundamental freedoms in its preamble.
After the United Nation's Charter came into force, the most important task before the United
Nation's was the implementation of the principles of the respect for human rights and freedom
for all without distinction as to race, sex, language or religion, as laid down under Article 55 of
the United Nation's Charter. It was therefore, decided to prepare on 'International Bill of Rights'
to achieve the end. The General Assembly on December 10, 1948 through a resolution adopted
an 'International Bill of Human Rights' known as 'Universal Declaration of Human Rights. The
resolution was adopted without dissent by forty votes with eight states abstaining the Declaration
consisted of thirty articles besides a preamble.