1.
WE ARE ALL BORN FREE & EQUAL
We are all born free. We all have our own thoughts and ideas. We should
all be treated in the same way.
2.
DON’T DISCRIMINATE
These rights belong to everybody, whatever our differences.
3.
THE RIGHT OF LIFE
We all have the right to life, and to live freedom and safety.
4.
NO TORTURE
Nobody has any right to hurt us or to torture us.
5.
NO SLAVERY
Nobody has any right to make us a slave. We cannot make anyone our
slave.
6.
YOU HAVE RIGHTS NO MATTER WHERE
YOU GO
I am a person just like you!
7.
WE’RE ALL EQUAL BEFORE THE LAW
The law is the same for everyone. It must treat us all fairly.
8.
YOUR HUMAN RIGHTS ARE PROTECTED
BY LAW
We can all ask for the law to help us when we are not treated fairly.
9.
NO UNFAIR DETAINMENT
Nobody has the right to put us in prison without good reason and keep us
there, or to send us away from our country.
10.
THE RIGHT TO TRIAL
If we are put on trial this should be in public. The people who try us
should not let anyone tell them what to do.
11.
WE’RE ALWAYS INNOCENT TILL PROVEN
GUILTY
Nobody should be blamed for doing something until it is proven. When
people say we did a bad thing we have the right to show it is not true.
12.
THE RIGHT TO PRIVACY
Nobody should try harm our good name. nobody has the right to come into
our home, open our letters, or bother us or our family without a good reason.
13.
FREEDOM TO MOVE
We all have the right to go where we want in our own country and to
travel as we wish.
14.
THE RIGHT TO SEEK A SAFE PLACE TO
LIVE
If we are frightened of being badly treated in our own country, we all
have the right to run away to another country to be safe.
15.
RIGHT TO A NATIONALITY
We all have the right to belong to a country.
16.
MARRIAGE AND FAMILY
Every grow-up has right to marry and have a family if they want to. Men
and women have the same rights when they are married, and when they are
separated.
17.
THE RIGHT TO YOUR OWN THINGS
Everyone has the right to own things or share them. Nobody should take
our things from us without a good reason.
18.
FREEDOM OF THOUGHT
We all have the right to believe in what we want to believe , to have a
religion, or to change it if we want.
19.
FREEDOM OF EXPRESSION
We all have the right to make up our own minds, to think what we like,
to say what we think, and to share our ideas with other people.
20.
THE RIGHT TO PUBLIC ASSEMBLY
We all have right to meet our friends and to work together in peace to
defend our rights. Nobody can make us join a group if we don’t want to.
21.
THE RIGHT TO DEMOCRACY
We all have the right to take part in the government of our country.
Every grow-up should be allowed to choose their own leaders.
22.
SOCIAL SECURITY
We all have the right to affordable housing, medicine, education, and
childcare, enough money to live on and medical help if we are ill or old.
23.
WORKER’S RIGHTS
Every grow-up has the right to do a job, to a fair wage for their work,
and to join a trade union.
24.
THE RIGHT TO PLAY
We all have the right to rest from work and to relax.
25.
FOOD AND SHELTER FOR ALL
We all have the right to a good life. Mothers and children, people who
are old, unemployed or disabled, and all people have the right to be cared for.
26.
THE RIGHT TO EDUCATION
Education is a right. Primary school should be free. We should learn
about the United Nations and how to get on with others. Our parents can choose
what we learn.
27.
COPYRIGHT
Copyright is a special law that protects one’s own artistic creations
and writings; others cannot make copies without permission. We all have the
right to our own we of life and to enjoy the good things that art, science and
learning bring.
28.
A FAIR AND FREE WORLD
There must be proper order so we can all enjoy rights and freedoms in
our own country and all over the world.
29.
RESPONSIBILITY
We have a duty to other people, and we should protect their rights and
freedoms.
30.
NO ONCE CAN TAKE AWAY YOUR HUMAN
RIGHTS
DEFINITION OF ‘HUMAN RIGHTS’
Louis Henkin, in
his ‘ the age of rights’ defines: “human rights are of individuals in society.
Every human being has legitimate, valid, justified claims upon his or her
society… to various ‘goods’ and ‘benefits’… they are defined, particular claims
listed in international instruments… deemed essential for individual
well-being, dignity, and fulfillment, and that reflect a common sense of
justice, fairness, and decency.”
Jack Donnelly’s
definition is limited mainly to ‘functional aspects. He defines ‘what rights
are humans’ as follows: “rights are title that ground claims of a special
force. To have a right to x is to be specially entitled to have and enjoy x.
the right thus governs the relationship between right-holder and duly-bearer
insofar as that relationship rests on the right. in addition, to have a right
is to be empowered to press rights claims, which ordinarily ‘trump’… other grounds
for action… the duties correlative to rights ‘belong to’ the right-holder, who
is largely free to dispose of those duties as he sees fit. Thus individual
rights are political trumps held by individuals….
“human rights”
are those individual rights entered the language of political discourse only
three centuries ago. This dose not mean, of course, that what we call human
rights did not exist before then or that they were never respected. They were
often respected in practice for a wide variety of religious, cultural, and
social reasons only vaguely related to the reasons we usually cite for
observing rights today. Throughout antiquity and the middle ages the language
of politics was caste in the terms of obligation (duty) rather than rights.”
Section 2 (1)
(d) of the protection of human rights act, 1993 defines ‘human rights’: “human
rights means the rights relating to life, liberty, equality of to individual
guaranteed by the constitution or embodied in international covenants and
enforceable by courts in India.”
The definition
given in section 2 (1) (d) is not exhaustive. It should be read with the rights
enunciated in various international covenants, such as the universal
declaration of human rights 1948, the Geneva ‘Red Cross’ conventions 1949, Helsinki
declaration 1975, the international Covenant on civil and political rights,
1966, etc.
Manorama year
book: “A right may be defined as something to which an individual has a just
claim. Human rights are those that individuals have by virtue of their existence
as human beings. The right to life itself and the basic necessities of food and
clothing may be considered fundamental human rights. Human rights traditionally
have been put in two categories, natural rights and civil rights. Natural
rights are those that belong to individuals by virtue of their humanity: the
rights to remain alive, to sustain life with food and shelter, and to follow
the dictates of their conscience.”
ORIGIN AND DEVELOPMAENT OF HUMAN RIGHTS
The concept of
human rights has spreaded worldwide only after 1945, when the united nations
organization was established. Up to the end of the 19th century,
even up to the half of the century, the governments throughout the world
adopted ‘police state’. Under this policy, the state used to extract huge
taxes, but did not concentrate on development activities. Majority of the
states were involved in wars with each other. Majority portion of the revenue
was expended for army and armament. There was little scope for the welfare and
development activities. Majority of the countries were ruled by the kings. The
king was treated as the “God”. Superior powers were assumed in him. He was the
sole and supreme in the country. There was no separation of power. All power
was concentrated in the hands of the king. Monarchic rule was the common from.
The number of the countries too was very less. Under such circumstances, there
was no scope of welfare and human rights. The people too were adhered to the
policy of POLICE STATE. Under this policy, the state had limited liabilities,
such as protecting the boundaries of the state from neighbors’, to curb the
internal disturbances; collection of revenue, etc at that time, the literacy
was very less. People too accepted everything done by the king and his
servants.
In the middle of
the eighteenth century, INDUSTRIAL REVOLUTION started in Great Britain. Soon it
spreader in the western countries, and
effected entire globe in economic, social, political relations between the states.
The industrial revolution led the imperialism. Great Britain, France Spain,
Portuguese, America, etc. western developed countries began to search new
places for their economic development. Several African and Asian countries,
including Indian, China, South Africa, Sri Lanka, Burma, etc. went into the
hands of imperialistic rule. The imperialistic rules exploited the colonies to
the greatest extent
Dadabhai
Naoroji, the veteran freedom fighter of India, estimated that Great Britain
exploited the Indians to the extent of 30,000, 0000 to 40,000,000 pounds per
year. This simple example showed us how the britishers exploited India and
Indians. The britishers were exploiting
the work from Indian laborers without
paying or paying only nominal. The Indian were taken away to various colonies,
dominions. Etc. by the britishers to work in the houses, plantations and
factories, etc. like this our Indian went to Mauritius, Fiji, Trinidad and
Tobago, etc. the Indian laborers, who were taken to those colonies, have become
the citizens of the countries, after such colonies have become independence
Indian’s
position under the great Britain was somewhat better. But the position of
negroes was very worst. They were taken to America and other western countries
as SLAVES. They were treated as ANIMALS. The slaves were sold in the SLAVES
MARKET. The sale transactions of slaves were regulated by SLAVE LAWS.
Under such circumstances ABRAHAM LINCOLN was
the FIRST PERSON to fight slavery. Under his leadership only, negroes were
freed from slavery, and the acts were enacted giving equal rights to them in
America. This was the first recognition of human rights in the world
history.
South Africa was
under the reign of great Britain. The white Government adopted APARTHEID POLICY
i.e. suppression of black. NELSON MANDELA, the black leader, was imprisoned for
27 years by the and national struggles, south Africa was given to the black in
1990. During the reign of white, the blacks including Indian suffered innumerable
troubles in south Africa. During this period, there was no question of human
right and their implementation. The human right humiliated by the white. The
barely exploited the blacks to maximum extent.
Since the
beginning of 20th century, there were tremendous changes occurred in
the globe. Science and technology, information technology, etc. developed
abnormally. The number of countries has been increased. The United Nations
organization was established 24-10-1945. Since the establishment of UNO, there
have been revolutionary changes in the field of human rights throughout the
world.
The charter of
the UNO itself contains several provisions relating to human rights. The
charter itself starts with the phrase WE THE PEOPLES OF THE NITED NATIONS. The phrase
itself indicates the determination of the UNO to dedicate itself for the human
right. the preamble affirms that it is TO REAFFIRM FAITH IN FUNDAMENTAL HUMAN
RIGHT, IN THE DIGNITY AND WORTH OF THE HUMAN PERSON, IN THE EQUAL RIGHTS OF MEN
AND WOMEN.. The charter aims to eradicate the wars, and to establish
international co-operation and peace. It wants to remove untold sorrows of
mankind.
CLAUSE (2)
Article 1 of the charter explains: The purpose of the united nations is to
develop friendly relations among nations based on respect for the principles of
equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen
universal peace.
ARTICLE 55 of
the charter narrates its objects about human rights as follows: with a view to
the creation of conditions of stability and well-being which are necessary for
peaceful and self-determination of peoples, the united nations shall promote:
(a)
Higher standards of living, full
employment, and conditions of economic and social progress and development,
(b)
Solutions of international
economic, social, health, and related problems; and international cultural and
educational co-operation; and
(c)
Universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction
as to race, sex, language, or religion.
The UNO
established various specialized agencies to upgrade the living standards of all
the human beings in economic, social, cultural, educational, health, and
related fields.
In this way, the
charter imposes ‘obligation’ to ‘promote’ the human rights. The economic and
social council, one of the principal organs of the NUO is responsible under the
general assembly for carrying out the functions of the united nations with
regard to international economic, social, cultural, educational, health and
related matters.
The united
organization took birth on 24-10-1945. But within three years after its birth,
it took serious steps and concern for the importation of human rights all over
the world. One of the first steps taken by the UNO was the adoption of the
universal declaration of human rights. 48 members-states were present and voted
in favor of it, and opposed by none. There were eight absentee member-states.
The absentee member-states were the soviet Russia, Yugoslavia, Ukraine,
Czechoslovakia, Byelorussian SSR, Poland, Saudi Arabia, South Africa. As a
result of serious efforts of the member-states, the general assembly declared
“the universal declaration of human rights 1948” vide its resolution no. 217A
(III)G.A.O.R., date 10-12-1948, at its 3rd session.
SCHEME OF THE
DECLARATION: the preamble of the universal declaration of human rights 1948
itself is an evidentiary document proclaiming the ‘human rights’. This
declaration contains 30 articles. Each article is a diamond piece imbedded in
gold jewellery giving every human being a right. this declaration contains a
comprehensive list of civil, political, economic, social and cultural rights.
Mrs. Eleanon
Roosevelt, the chairman of t he united nations commission on human rights
commented a common standard is not, and dose not purport to be a statement of
law or of legal obligation, it is instead a common standard achievement for all
peoples of all nations.
OBJECT: the
preamble of the universal declaration of human rights 1948 explains the object
of declaration 1948 as follows:
“where as
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,”.
Where as
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,
“where as 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,”
“where as 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,”
“where as 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 freedom,
“where as a
common understanding of these rights and freedoms is of the greatest important
features 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 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 freedom 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 this jurisdiction.”
HUMAN RIGHTS
DECLARATION BY THE UNIVERSAL
DECLARATION OF HUMAN RIGHTS 1948
Spirit of
brotherhood: 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.
No
discrimination: everyone is entitled to all the rights and freedoms set forth
in this declaration, without distinction of any kind, such as race, colour,
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 be independent,
trust, non-self-governing or under any other limitation of sovereignty.
Right to life:
everyone has the right to life, liberty and security of person.
Abolition of
slavery: no one shall be held in slavery or servitude; slave trade shall be
prohibited in all their forms.
Abolition of
torture, etc: no one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment.
Right to
recognition: everyone has the right to recognition everyone as a person before
the law.
Equality before
the law: 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 discrimination in violation of this declaration and
against any incitement to such discrimination.
Right to
recognition: 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.
No arbitrary
arrest: no one shall be subjected to arbitrary arrest, detention or exile.
Right to fair
hearing: 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.
Presumption of innocence: 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 defense.
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.
Right to
privacy: no one shall be subjected to arbitrary interference with his privacy,
family, home or correspondence, nor to attack upon his honour and reputation.
Everyone has the right to the protection of the law against such interference
or attacks.
Right to freedom
of movement: everyone has the right to freedom of movement and residence within
the borders of each state. Everyone has the right to leave any country,
including his own, and to return to his country.
Right to asylum:
everyone has the right to seek and to enjoy in other countries asylum from
persecution. 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.
Right to
nationality: everyone has the right to a nationality. No one shall be
arbitrarily deprived of his nationality nor denied the right to charge his
nationality.
Right to
marriage: men and women of full age, without any limited due to race,
nationality or religion, nave the right to marry and to found a family. They
are entitled to equal as to marriage, during marriage and at its dissolution.
Marriage shall be entered into only with
the free and full consent of the intending by society and the state.
Right to own
property: everyone has to right to own property alone as well as in association
with others. No one shall be arbitrarily deprived of his property.
Right to freedom
of thought, conscience and religion: 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.
Right to freedom
of opinion and expression: everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinion without interference
and to seek, receive and impart information and ideas through any media and regardless
of frontiers.
Right to
assembly and association: everyone has the right to freedom of peaceful
assembly and association. No one may be compelled to belong to an association.
Right to take
part in the government: everyone has the right to take part in the government
of his country, directly or through freely chosen representatives. Everyone has
the right of equal access to public service in his country. 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.
Right to social
security: 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 culture rights indispensable for his dignity
and the free development of his personality.
Right to work:
everyone has the right to work, to free choice of employment, to just and
favorable conditions of work and to protection against unemployment. Everyone,
without any discrimination, has the right to equal pay for equal work. 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. Everyone has the right to form
and to join trade unions for the protection of his interests.
Right to rest
and leisure: everyone has the right to rest and leisure, including reasonable
limitation of working hours and periodic holidays with pay.
Right to
standard of living: everyone has the right to a standard of living adequate for
the health and well-being of himself and 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 circumstance beyond his control. Motherhood and
childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy the same social protection.
Right to
education: 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. 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 to choose the kind of
education that shall be given to their children.
Right to
participate in cultural life: everyone has the right freely to participate in
the culture life of the community to enjoy the arts and to share in scientific
advancement and its benefits. 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.
Right to a
social and international order: everyone is entitled to a social and
international order in which the rights and freedoms set forth in this
declaration can be fully realized.
LIMITATIONS:
everyone has duties to the community in which alone the free and full
development of his personality. 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 other and of meeting the just requirements of morality, public
order and the general welfare in a democratic society. These rights and
freedoms may in no case be exercise contrary to the purposes and principles of
united nations.
INTERPRETATION:
nothing in the 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.
EFFECT OF THE
DECLARATION: The universal declaration undoubtedly made effects upon all the
member-states. This declaration is a historic event and a great achievement of
the united nations. After this declaration, there was a considerable number of
treaties on human rights between the member-states. The efforts made by the
united nations through its various, specially ECOSOC had effected and resulted
in fruitfulness. Majority of the member-states, including India, established
human rights commissions.
Fawcett
commented: “whatever may be the legality of universal declaration of human
rights, it has set a standard by which national behavior can be measured and to
which nations aspire.”
The status of
the declaration of human rights 1948 as a source of rules of customary
international law was considered in the Filartiga Case, which is the most
important international case-law on human rights.
FILARTIGA vs. PENA-IRALA
(1980 U.S.
circuit court of Appeals)
Brief facts: the
defendant-pena-Irala was a Paraguayan citizen. He was the former head of police
in Asuncion, Paraguay. During his presence in Paraguay as a police officer, he
did several atrocities on Paraguaya civilians. He caused the death of son of
Filartiga under the veil of his power in 1976 by torture. Filartiga and his
daughter, who were Paraguayan citizens and political sufferers, entered the
united states in 1978 and applied for political asylum in America. Within a
short period of their arrivalto America, they came to know that the
defendant-Pena-irala was also in America. The plaintiff and his daughter filed
a combined suit against Pena-irala alleging that he caused the death of is son
(brother of co-plaintiff) in Peraguay. They field this suit under the
provisions of “wrongful death statutes of America, the united nations charter;
the universal declaration of human rights; the united nations declaration
against torture; the united states Judiciary Act 1789; the American declaration
of the rights and duties of man; and other pertinent declarations, documents and
practices constituting the customary international law of human rights and the
law of nations.”
The defendant
raised the objection that the American courts had no jurisdiction to try the
offences caused in Pareguay, another sovereign states. The district court
dismissed the claim petition of Filartiga stating that it had no jurisdiction.
Filartigas appealed to the court of appeals.
JUDGMENT: the
court of appeals held that the district court did have jurisdiction under the
united states Judiciary Act 1789 and also under the provisions of the charter
of united nations, and also under the provisions of the universal declaration
of human rights.
PRINCIPLES: (i)
the court of appeal observed: “a threshold question on the jurisdictional issue
is whether the conduct alleged violates the law of nations. In light of the
universal condemnation of torture in numerous international agreements, and the
renunciation of torture as an instrument of official policy by virtually all of
the nations of the world (in principle if not in practice), we find that an act
of torture committed by a state official against one held in detention violates
established norms of the international law of human rights, and hence the law
of nations.”
(ii) the court
of appeal further held: “the united nations charter (preamble, and articles 55
and 56) makes it clear that in this modern age a state’s treatment of its own
citizens is a matter of international concern.”
(iii) the court
of appeal further observed: “…although there is universal agreement as to
precise extent of the ‘human rights and fundamental freedom’ guaranteed to all
by the charter, there is at present no dissent from the view that the
guarantees include, at a bare minimum, the right to be free from torture. This
prohibition has become part of customary international law, as evidenced and
defined by the universal declaration of human rights… which states, in plainest
to terms ‘no one shall be subjected to torture’.”
RESULT: due to
the political decision taken by the American and Paraguayan governments, the
American government allowed the defendant to return to Paraguay before the
court of Appeal’s judgment. The court of appeal directed the district court to
procced with the proceedings. The district court conducted the inquiry and awarded
$ 5 million to the each of the plaintiffs as punitive damages.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS 1966 (ICCPR)
SCOPE: the
universal declaration on human rights 1948 is a mile stone in the history of
human rights. It has given the way to followed a series of treaties adopted
within the united nations. Chief among these are the two 1966 international
covenants on civil and political rights (ICCPR) and on economic, social and
culture rights (ICESCR). ICCPR represents ‘first generation’ and ICESCR
represents ‘second generation’ of human rights.
There are 50
articles in the international covenant on civil and political rights 1966. This
covenant gives civil and political rights to every human being in the world. No
article needs interpretation. Even it does not require to look into the
dictionary. Every word of these articles gives us clear picture.
Article 1: (1)
all people have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic
picture.
(2) all people
may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic
c-operation, based upon the principle of mutual benefit, and international law.
In no case may a people be deprived of its own means of subsistence.
(3) the states
parties to the present covenant, including those having responsibility for the
administration of non-self-governing and trust territories, shall 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.
Article 2: (1)
each state party to the present covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights
recognized in the present covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national, or
social origin, property, birth or other status.
(2) where not
already provided for by existing legislative or other measures, each state
party to the present covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the
present covenant, to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized in the present covenant.
(3) each state
party to the present covenant undertakes:
(a) to ensure that any person whose rights
or freedoms as here in recognized are violated shall have an effective remedy,
not with standing that the violation has been committed by persons acting in an
official capacity;
(b) to ensure that any person claimed
such a remedy shall have his right there to determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the state, and to develop the possibilities
of judicial remedy;
(c) to ensure that the competent
authorities shall enforced such remedies when granted.
Article 3: the
state parties to the present covenant undertake to ensure the equal right of
men and women to the enjoyment of all civil and political rights set forth in
the present covenant.
Article 4: (1)
in time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the state parties to the present
covenant may take measures derogating from their obligations under the present
covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligation
under international law and do not involve discrimination solely on the ground
of race, colour, sex, language, religion or social origin.
(2) no
derogation from articles 6,7,8 (Prargraphs 1 and 2), 11, 15, 16, and 18 may be
made under this provision.
(3) any state
party to the present covenant availing itself of the right of derogation shall
immediately inform the other states parties to the present covenant, through
the international of the secretary-general of the united nations, of the
provisions from which it has derogated and of the reasons by date on which it
was actuated. A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation.
Article 5: (1)
nothing in the present covenant may be interpreted as implying for any state,
group or person any right to engage in any activity or perform any act aimed at
the destruction of any of the rights and freedoms recognized here in or at
their limitation to a greater extent then provided for in the present covenant.
(2) there shall
be nor restriction upon or derogation from any of the fundamental human rights
recognized or existing in any state party to the present covenant pursuant to
law, conventions, regulations or custom on the pretext that the present
covenant does not recognized such rights or that it recognizes them to a lesser
extent.
Article 6: (1) every
human being has the inherent right to life. This rights shall be protected by
law. No one shall be arbitrarily deprived of his life.
(2) in countries
which have not abolishes the death penalty, sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the
time of the commission of the crime and not contrary to the provisions of the
present covenant and to the covenant on the prevention and punishment of the
crime of Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court.
(3) when
deprivation of life constitute the crime of genocide, it is understood that
nothing in this article shall authorize any state party to the present covenant
to derogate in any way from any obligation assumed under the provisions of the
convention of the prevention and punishment of the crime of genocide.
(4) anyone
sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be
granted in all cases.
(5) sentence of
death shall not be imposed for crime committed by persons below 18 years of age
and shall not be carried out on pregnant women.
(6) nothing in
this article shall be invoked to delay or to prevent the abolition of capital
punishment by any state party to the present covenant.
Article 7: no
one shall be subjected to torture or to cruel, in human or degrading treatment
or punishment. In particular, no one shall be subjected without is free consent
to medical or scientific experimentation.
Article 8: (1)
no one shall be held in slavery and the slave-trade in all their forms shall be
prohibited.
(2) no one shall
be held in servitude.
(3) (a) no one
shall be required to perform forced or compulsory labor;
(b) Paragraph
3(a) shall not be held to preclude, in countries where imprisonment with hard
labour may be imposed as a punishment for a crime, the performance of hard
labour in pursuance of sentence to such punishment by a competent court;
for the purpose
of this paragraph the term “forced or compulsory labour” shall not include:
·
Any work or service, not referred
to in subparagraph (b), normally required of a person who is under detention in
consequence of a lawful order of a court, or of a person during conditional
release from such detention;
·
Any service of a military
character and, in countries where conscientious objections;
·
Any service exacted in cases of
emergency or calamity threatening the life or well-being of the community;
·
Any work or service which forms
part of normal civil obligations.
Article 9: (1)
everyone has the rights to liberty and security of person. No one shall be
subjected to arbitrary arrest to detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.
(2) anyone who
is arrested shall be informed, at the time of arrest, of the reasons for his
arrest and shall be promptly informed of any charges against him.
(3) anyone
arrested or detained on a criminal charge shall be brought promptly before a
judge or other officer authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release, it shall not be
the general rule that persons awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution of the
judgment.
(4) anyone who
is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that the court may decide without delay on
the law fullness of his detention and order his release if the detention is not
lawful.
(5) anyone who
has been the victim of unlawful arrest or detention shall have an enforceable
right to compensation.
Article 10: (1)
all persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
(2) (a) accused
person shall, save in exceptional circumstances, be segregated from convicted
persons and shall be subject to separate treatment appropriate to their status
as unconverted persons;
(b) accused
juvenile person shall be separated from adults and brought as speedily as
possible for adjudication.
(3) the
penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders
shall be segregated from adults and be accorded treatment appropriate to their
age and legal status.
Article 11: no
one shall be imprisoned merely on the ground of inability to fulfill a
contractual obligation.
Article 12: (1)
everyone lawfully within the territory of a state shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
(2) everyone
shall be free to leave any country, including his own.
(3) the
above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public
order (order public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the present
covenant.
(4) no one shall
be arbitrarily deprived of the right to enter his own country.
Article 13: an
alien lawfully in the territory of a state party to the present covenant may be
expelled therefore only of a decision reached in accordance with law and shall,
except where compelling reasons of national security otherwise require, be allowed
to submit the reasons against his expulsion and to have his case reviewed by,
and be represented for the purpose before, the competent authority or a person
especially designated by the competent authority.
Article 14: (1)
all persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations I suit of law, everyone shall be entitled to a fair and public
hearing of a competent, independent and impartial tribunals established by law.
The press and the public may be excluded from all or part of a trial for
reasons of morals, public order (order public) or national security in a
democratic society, or where the interest of the private lives of the parties
so requires, or the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interest of justice;
but any judgment rendered in a criminal case or in a suit at law shall be made
public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.
(2) everyone
charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
(3) in the
determination of any criminal charge against him, everyone shall be entitled to
the following minimum guarantees, in full equality:
(a) to be informed promptly and in
detail in a language which he understands of the nature and cause of the charge
against him;
(b) to have adequate time and
facilities for the preparation of his defense and to communicate with counsel
of his own choosing;
(c) to be tried without undue delay;
(d) 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 case where the interests of justice so
require, and without payment by him in any such If he does not have sufficient
means to pay for it;
(e) to examine, or have examined, the
witness against him and to obtain the attendance and examination of witness on
his behalf under the same conditions as witnesses against him;
(f) to have the free assistance of an
interpreter if he cannot understand or speak the language used in court;
(g) not to be compelled to testify
against himself or to confess guilt.
(4) in the case
of juvenile persons, the procedure shall be such as will take account of their
age and the desirability of promoting their rehabilitation.
(5) everyone
convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
(6) when a
person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the
ground that a new or newly discovered fact shows conclusively that there has
been a miscarriage of justice shall be compensated according to law, unless it
is proved that the non-disclosure of the unknown fact in time is wholly or
partly attributable to him.
(7) no one shall
be liable to be tried or published again for an offence for which he has
already been finally convicted or acquitted in accordance with each country.
Article 15: (1)
no one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal 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 when the
criminal offence was committed. If, subsequent to the commission of the offence,
provision is made by law for imposition of a lighter penalty, the offender
shall benefit thereby.
(2) nothing in
this article shall prejudice the trial and punishment of any person for any act
or omission which, at the time when it was committed, was criminal according to
the general principles of law recognized by the community of nations.
Article 16:
everyone shall have the right to recognition everywhere as a person before the
law.
Article 17: (1)
no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his honour
and reputation.
(2) everyone has
the right to the protection of the law against such interference or attacks.
Article 18: (1)
everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or adopt a religion or belief of his
choice, and freedom, either individually or in community with other and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
(2) no one shall
be subject to coercion which would impair his freedom to have to adopt a
religion or belief of his choice.
(3) freedom to
manifest one’s religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order,
health, or morals or the fundamental rights and freedoms of others.
(4) the state
parties to the present covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.
Article 19: (1)
everyone shall have the right to hold opinions without interference.
(2) everyone
shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of
frontiers. Either orally, in writing or in print, in the form of art, through
any other media of his choice.
(3) the exercise
of the rights provided for in paragraph 2 of this article with it special
duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) for respect of the rights or
reputations of others;
(b) for the protection of national
security or of public order (order public), or of public health or morals.
Article 20: (1)
any propaganda for war shall be prohibited by law.
(2) any advocacy
of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.
Article 21: the
right of peaceful assembly shall be recognized. No restrictions may be placed
on the exercise of this right other than those imposed in conformity with the
law and which are necessary in a democratic society in the interests of
national security or public safety, public order (order public), the protection
of public health or morals or the protection of the rights and freedoms of
others.
Article 22: (1)
everyone shall have the right to freedom of association with others including
the right to form and join trade unions for the protection of his interests.
(2) no
restriction may be placed on the exercise of this right other than those which
are prescribed by law and which are necessary in a democratic society in the
interests of national security or public safety, public order (order public),
the protection of public health or morals or the protection of the right and freedoms
of others. This article shall not prevent the imposition of lawful restrictions
on members of the armed forces and of the police in their exercise of this
right.
(3) nothing in
this article shall authorize states parties to the international labour organization
convention of 1948 concerning freedom of association and protection of the
right to organize to take legislative measures which would prejudice, or to
apply the law in such a manner as to prejudice, the guarantees provided for in
the convention.
Article 23: (1)
the family is the natural and fundamental group unit of society and is entitled
to protection by society and the state.
(2) the right of
men and women of marriageable age to marry and to found a family shall be
recognized.
(3) no marriage
shall be entered into without the free and full consent of the intending
spouses.
(4) state
parties to the present covenant shall take appropriate and at its dissolution.
In the case of responsibilities of spouses as to marriage, during marriage and
at its dissolution. In the case of dissolution, provision shall be made or the
necessary protection of any children.
Article 24:
every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right to
such measures of protection as are required by his statues as a minor, on the
part of his family, society and the state.
(2) every child
shall be registered immediately after birth and shall have a name.
(3) every child
has the right to acquire a nationality.
Article 25:
every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and with unreasonable restrictions:
(a)
To take in the conduct of public
affairs, directly or through freely chosen representatives.
(b)
To vote and to be elected at
genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of
the electors;
(c)
To have access, on general terms
equality, to public in any country.
Article 26: all
persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persona equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
Article 27: in
those states in which ethnic, religion or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language.
Article 47:
nothing in the present covenant shall be interpreted as impairing the inherent
right of all peoples to enjoy and utilize fully and freely their natural wealth
and resources.
Article 50: the
provisions of the present covenant shall extend to all parts of federal states
without any limitations or exceptions.
JOLLY GEORGE
VARGHESE AND ANOTHER (Appellants) vs. THE BANK OF COCHIN (Respondent) (AIR 1980
SC 470)
SCOPE : this is
the leading case dealing with the provisions of the civil procedure code, 1908
and article 21 of the constitution of India (municipal law) and the provisions
of the international covenant on civil and political rights 1966 (ICCPR).
Brief facts: the
appellants were the judgment-debtors for a sum of 7 lakhs in five decrees
passed in 1972 and 1974 against them. In execution of the decree in question
(O.S.57 of 1972), a warrant for arrest and detention in the civil prison was
issued to the appellants under section 51 and order 21, rule 37 of the civil procedure
code, 1908 on 22-6-1979. Earlier, there had been a similar warrant for arrest
in execution of the same decree. Besides this process, the decree-holders had
proceeded against the properties of the judgment-debtors and in consequence,
all their immovable properties had been attached for the purpose of sale in
discharge of the decree debts. A receiver was also appointed for the management
of the properties under attachment.
In short, the
enjoyment or even the power to alienate the properties by the judgment-debtors
has been forbidden by the court direction keeping them under attachment and
appointing a receiver to manage them.
Nevertheless,
the court has issued a warrant for arrest. The appellants field revision
petition before the high court Kerala contending that arrest warrant was
volatile, as their properties already attached. The high court of dismissed the
revision petition. The appellants approached the supreme court.
The appellants
invoked the provisions of the international covenant on civil and political
rights 1966 contending that whether it would be right to enforce a contractual
liberty by imprisoning a debtor in the teeth of Article 11 of the international
covenant on civil and political rights.
JUDGMENT: the
supreme court of India gave judgment in favor of the appellants. It set aside
the judgment under appeal and direct the executing court to decide de novo the
means of the judgment-debtors to discharge the decree in the light of the
interpretation of the international covenant on civil and political rights
1966.
PRINCIPLES: from
the judgment of the supreme court in this case, the following principles are
abstracted:
(1)
The words “or has since the date
of the decree, the means to pay the amount of the decree” occurring in section
51, civil procedure code, 1908 (India) may imply, if superficially read, that
if at any time after the passing of an old decree the judgment-debtor had come
by some resources and had not discharged the decree, he could be detained in
prison even though at that later point of time he was found to be penniless.
This is not a sound position apart from being inhuman going by the standards of
article 11 of international covenant on civil and political rights and article
21 of the constitution of India.
(2)
Where the judgment-debtor if once
had the means to pay the debt subsequently after the date of decree, has no
such means or he money on which there are other pressing claims; it is volatile
of article 11 of the covenant to arrest and confine him in jail so as to coerce
him into payment. Section 51 of civil procedure code embodies the same
principle as that which is embodied in article 11 of the covenant.
(3)
The covenant bans imprisonment
merely for not discharging the decree debt, unless there be some other vice or
means rea apart from failure to foot the decree, international law frowns no
holding the debtor’s person in civil prison, as hostage by the court.
(4)
The simple default to discharge
the decree, is not enough. There must be some element of bad faith beyond mere
indifference to pay, some deliberate or recusant disposition in the past or
alternatively, current means to pay the decree or a substantial part of it. The
provision emphasizes the need to establish not mere omission to pay but an
attitude of refusal as demand verging on dishonest disowning of the obligation
under the decree. Here considerations of the debtor’s other pressing needs and
straitened circumstances will play prominently.
(5)
It is too obvious to need
elaboration that to cast a person in prison because of his poverty and
consequent inability to meet his contractual liability is appalling. To be
poor, in this land of poverty is no crime and recover debts by the procedure of
putting one in prison is too flagrantly volatile of article 21 of his
constitution unless there is some proof of the minimal fairness of his willful
failure to pay in spit of his sufficient means and absence of more terribly
pressing claims on his means such as medical bills to treat cancer or other
grave illness. Unreasonable and unfairness in such a procedure is inferable
from article 11 of the covenant and lethal blow of article 21 of the
constitution of India cannot strike down the provision of section 51 of civil
procedure code.
CAMARGO vs. COLOMBIA (H.R.C.112 (1982)
BRIEF FACTS: a
report was received by the Colombia police in connection with a kidnapping and
that the kidnappers hid in a house. The police raided the house. No one was
found in the house. They hid in the same house waiting for kidnappers seven
civilian persons, in no way connected with the kidnapping were coming towards
the house. The police fired at them without giving any warning. Mrs. Maria
Fanny Suarez de Guerrero, the wife of one of the deceased in the said incident,
submitted an application to the human rights commission.
After release
from detention, he field application to the human rights commission of Uruguay.
DECISION: the
human rights commission condemned the attitude of Uruguayan government, and
ordered it to pay compensation to Estrella.
PRINCIPLES: (1)
the Estrella case is one of many that have alleged torture or other
ill-treatment contrary to article 7 of covenant 1966.
(2) the H.R.C.
observed: “…the scope of protection required goes far beyond torture as
normally understood.” It may not be
necessary to draw sharp distinctions between the various prohibited forms of
treatment or punishment. These distinctions depend on the kind, purpose and
severity of the particular treatment. In the committee the prohibition must
extend to corporal punishment including excessive chastisement as an
educational or disciplinary measure. Even such a measure as solitary
confinement may, according to the circumstances, and especially when the person
is kept incommunicado, be contrary to article 7. Moreover the article clearly
protects not only persons arrested or imprisoned, but also pupils and patients
in educational and medical institutions. Finally, it is also the duty of the
public authorities to ensure protection by the law against such treatment even
when committed by persons acting outside or without any official authority. For
all persons deprived of their liberty, the prohibition of treatment contrary to
article 7 is supplemented by the positive requirement of article 10 (1) of the
covenant that they shall be treated with humanity and with respect for the
inherent dignity of the human person.”
Aumeeruddy-Cziffra vs. Mauritius (H.R.C. 67 (1981)
BRIEF FACTS: the
Mauritius government enacted the deportation (Amendment) act 1977. According to
this act, alien men married to Mauritian women shall have to apply for a
residence permit, which could be refused or withdrawn at any time, by the
executive. If the permission is revoked, the alien men shall have to deport from
Mauritius. In the said act, exclusion clause exempts judiciary review. The same
condition is not imposed in case of alien women married to Mauritian men. The
applicant challenged it contending that the said condition incorporated in act
1977 was against the article 2, 3, 4, 17, 23, 25 and 26 of ICCPR.
Decision: the
human rights commission of Mauritius government to amend the act 1977 according
to the article of ICCPR.
Broeks vs. Netherlands (H.R.C.196 (1987)
BRIEF FACTS:
broeks was a nurse. She was dismissed from services due to her illness. She was
not paid unemployment benefit. According to the Dutch social security law, a
women employee would get unemployment benefit, if she could prove that she was “only
breadwinner” of the family. This condition would not apply to males. She
applied to human rights commission pointing out the discrimination showing
between males and females in Dutch social security laws, and such laws were
against article 26 of ICCPR.
DICISION: the
human rights committee upheld her contention, and instructed the Netherlands
government to remove the provisions relating to the discrimination between
males and females.
Lovelace vs. Canada (H.R.C. 28 (1981)
BRIEF FACTS: Lovelace was an Indian women.
She married a Canadian and left to Canada. She relinquished Indian citizenship
and took the Canadian citizenship. After some years, disputes arose between her
and her husband. They took divorce. According to the Indian law, once she has
relinquished, she may or may not get Indian citizenship, which upon the
discretion of Indian government. Her was residing in Tobique. She was not
allowed to return to India. The Canada government asked her to leave the
country as she was a divorcee. She submitted application to the H.R.C. stating
that the Canada government’s action was violative against article 27 of ICCPR.
DECISION: the
human rights commission of Canada gave decision in favour of Lovelace, and
asked the Canada government to amend its laws.
INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL
AND CULTURAL RIGHTS 1966 (ICESCR)
SCOPE: the
universal declaration on human rights 1948 is a mile stone in the history of
human rights. It has given way to several treaties, conventions, covenants,
etc. on human rights. In the year 1966, two important covenants were concluded,
viz, (i) the international covenant on civil and political rights (ICCPR) and
international covenant on economic, social and cultural rights.
ICCPR represents
“first generation”. ICESCR represents
“second generation”. This covenant contains 28 articles. Some of them are
similar to the article of ICCPR. The plain reading itself gives its objectives
and understanding.
Article 1:
identical to article 1, ICCPR.
Article 2: (1)
each state party to the present covenant undertakes to take steps,
individually, and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view
to achieving the full realization of the rights recognized in the present
covenant by all appropriate means, including particularly in adoption of
legislative measures.
(2) the state
parties to the present covenant undertake to guarantee that the rights
enunciated in the present covenant will be exercised without discrimination of
any kind as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
(3) developing
countries, with due regard to human rights and their national economy, any
determine to what extent they would guarantee the economic rights recognized in
the present covenant to non-nationals.
Article 3: the
states parties to the present covenant undertake to ensure the equal of men
women to the enjoyment of all economic, social and cultural rights set forth in
the present covenant.
Article 4: the
states parties to the present covenant recognize that, in the enjoyment of
those provided by the state in conformity with the present covenant, the state
may subject such rights only to such limitations as are determined by law only
in so far as this may be compatible with the nature of these rights and solely
for the purpose of promoting the general welfare in a democratic society.
Article 5: (1)
nothing in the resent covenant 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 of freedoms recognized herein, or at
their limitation to a greater extent than is provided for In the present
covenant.
(2) no
restriction upon or derogation from any of the fundamental human rights
recognized or existing in any country in virtue of law, convention such rights
or that it recognizes them to a lesser extent.
Article 6: (1)
the state parties to the present covenant the right to work, which includes the
right of everyone to the opportunity to again his living by work which he
freely chooses or accepts, and will take to appropriate steps to safeguard this
right.
(2) the steps to
taken by a state party to the covenant to achieve the full realization of this
right shall include technical and vocational guidance and training programmers,
policies and techniques to achieve steady economic, social and cultural
development and full and productive employment under conditions safeguarding
fundamental political and economic freedoms to the individual.
Article 7: the state parties to the present
covenant recognize the right of everyone to the enjoyment of just and
favourable conditions of work, which ensure, in particular.
(a)
Remuneration which provides all
workers, as a minimum, with:
(1) Fair wages and equal remuneration foe work of equal value without
distinction of any kind, in particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work;
(2) A decent living for themselves and their families in accordance with the
provisions of the present covenant;
(b)
Safe and healthy working
conditions;
(c)
Equal opportunity for everyone to
be promoted in his employment to an appropriate higher level, subject to no
considerations other than those of seniority and competence;
(d)
Rest, leisure and reasonable
limitation of working hours and periodic holidays with pay, as well as
remuneration for public holidays.
Article 8:
(1) the states
parties to the present covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of
his choice, subject only to the rules of the organisation concerned, for the
promotion and protection of his economic and social interest. No restrictions
may be placed on the exercise of this tight other than those prescribed by law
and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of
others;
(b) The right of trade unions to establish national federations or
confederations and the right the latter to from or jin international
trade-union organizations;
(c) The right of trade unions to functions freely subject to no limitations
other than those prescribed by law and which are necessary in a democratic
society in the interest of national security or public order or for the
protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with
the law s of the particular country.
2. this article
shall not prevent the imposition of lawful restrictions on the exercise of
these rights by members of the armed forces of of the police or of the
administration of the state.
3.nothing in
this article shall authorize states parties to the international labour
organization convention of 1948 concerning freedom of association and
protection of the right to organize to take legislative measure which would
prejudice, or apply the law in such a manner as would prejudice, the guarantees
provided for in that convention.
Article 9: the
states parties to the present covenant recognize the right of everyone to
social security, including social insurance.
Article 10: the
states parties to the present covenant recognize that:
(1)
The widest possible protection
and assistance should be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its establishment and while
it is responsible for the care and education of deponent children. Marriage
must be entered into with the free consent of the intending spouses.
(2)
Special protection should be accorded
to mothers during a reasonable period and after childbirth. During such period
working mothers should be accorded paid leave with adequate social security
benefits.
(3)
Special measures of protection
and assistance should be taken on behalf of all children and young person
without any discrimination for reasons of parentage or other conditions.
Children and young persons should be protected from economic and social
exploitation. Their employment in work harmful to their morals or health or
dangerous to like or likely to hamper their normal development should be
punishable by law. States should also set age limits below which the paid
employment of child labour should be prohibited and punishable by law.
Article 11: (1)
the state parties to the present covenant recognize the right of everyone to an
adequate standard of living of himself and his family, including adequate food,
clothing and housing, and to the continuous improvement of living conditions.
The states parties will take appropriate steps to ensure the realization of
this right, recognizing to this effect the essential importance of
international co-operation based on free consent.
2. the state
parties to the present covenant, recognizing the fundamental right of everyone
to be free from hunger, shall take, individually and through international
co-operation, the measures, including specific programmers, which are needed:
(a) to improve
methods of production, conservation and distribution of food by making full use
of technical and scientific knowledge by disseminating knowledge of the
principle 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;
(b) taking into
account the problems of both food-importing and food-exporting countries, to
ensure an equitable distribution of world food supplies in relating to need.
Article 12: (1)
the state parties to the present covenant recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.
2. the steps to
be taken by the states parties to the present covenant to achieve the full
realization of this right shall include those necessary for;
(a) the provision for the reduction
of the stillbirth-rate ad of infant mortality and for the healthy development
of the child;
(b) the improvement of all aspects of
environmental and industrial hygiene;
(c) the prevention, treatment and
control of epidemic, occupational and other diseases;
(d) the creation of conditions which
would assure to all medical service and medical attention in the event of
sickness.
Article 13: (1)
the states parties to the present covenant recognize the right of everyone to
education. they agree that education shall be directed to the full development
of the human personality and the sense of its dignity, and shall strengthen the
respect for human rights and fundamental freedoms. They further agree that
education shall enable all persons to participate effectively in a free
society, promote understanding, tolerance and friendship among all nations and
all racial, ethic or religious groups, and further the actives of the united
for the united nations for the maintenance of peace
2. the state
parties to the present covenant recognize that, with a view to achieving the
full realization of this right:
(a) primary education shall be compulsory
and available free to all;
(b) secondary education in its different
forms, including technical and vocational 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;
(c) 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;
(d) fundamental
education shall be encouraged or intensified as for as possible for those
persons who have not received or completed the whole period of their primary
education;
(e) the
development of a system of schools at all levels shall be actively pursued, and
adequate fellowship system shall be established, and the material conditions of
etching staff shall be continuously improved.
(3) the states
parties to the present covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians, to choose for their children
schools, other than those established by the public authorities, which conform
to such minimum educational standards as any be laid down or approved by the
state and ensure the religious and moral education of their children in
conformity with their own conventions.
(4) no part of
this article shall be constructed so as to interfere with the liberty of
individuals and bodies to establish and direct educational institutions,
subject always to the observance of the principles set forth in paragraph 1 of
this article and to the requirement that the education given in such
institutions shall conform to such minimum standards as may be laid down by the
state.
Article 14: each
state party to the present covenant which, at the time of becoming a party, has
not been able to ensure in its metropolitan territory or other territories
under its jurisdiction compulsory primary education, free of charge,
undertakes, within two years, to work out and adopt a detailed plan of action
for the progressive implementation, within a reasonable number of years, to be
fixed in the plan, of the principle of compulsory education free of charge for
all.
Article 15: (1)
the state parties to the present covenant recognized the right of everyone:
(a)
To take part in cultural life;
(b)
To enjoy the benefits of
scientific progress and its application;
(c)
To benefit from the protection of
the moral and material resulting from any scientific, literary or artistic
production of which he is the author.
2. the steps to
be taken by the states parties to the present covenant to achieve the full
realization of science and culture.
3. the states
parties to the present covenant undertake to respect the freedom indispensable
for scientific research and creative activity.
4. the states
parties to the present covenant recognize the benefits to be derived from the
encouragement and development of international contacts and co-operation I the
scientific and cultural fields.
Article 23: the
state parties to the present covenant agree that international action for the
achievement of the rights recognized in the present covenant includes such
methods as the conclusion of conventions, the adoption of recommendations, the
furnishing of technical assistance and the conclusion of conventions, the
adoption of recommendations, the furnishing of technical assistance and the
holding of regional meetings and technical meetings for the purpose of
consultation and study organized in conjunction with the governments concerned.
Article 25:
identical to article 47, ICCPR,
Article 28: the
provisions of the present covenant shall extend to all parts of federal states
without any limitation or exceptions.
Distinction between
ICCPR AND ICESCR ICCPR :
(1)
ICCPR represents and protects the
human rights of ‘ first generation’.
(2)
It explains human rights
pertaining to cultural and political rights (i.e. not to torture, not to show
discrimination, etc.).
(3)
The rights incorporated in ICCPR
are negative in character just like the provisions in the penal code of a
municipal law. The Indian penal code defines and narrates different offences,
which are prohibited. In the similar way ICCPR defines and narrates certain
things not supposed to be done by the states.
(4)
The judicial remedies are
provided to the aggrieved persons, in cases their civil and political rights
are violated by the state. The aggrieved person can claim before the central
human rights commission, human right court, state human right commission or
other domestic tribunals.
(5)
The provisions of ICCPR are
similar to the provisions of fundamental rights in the Indian constitution,
violation of which gives rise to judicial remedies.
ICESCR :
(1) ICESCR represents and protects the human rights of ‘second generation’.
(2) It explains human rights pertaining to economic, social and cultural
rights (e.g. to provide adequate housing, trade unions social security, medical
facilities, etc.).
(3) The rights incorporated in ICESCR are positive in character. It shows
the ways to state to implement certain programmers to uplift the living standards
of human beings and to protect the human culture. These are similar to the
directive principles state policy (part lll) of our constitution.
(4) There is no scope of judicial remedies. (there is no scope of judicial
remedies in case of directive principles of state policy of our constitution.
The court cannot force the state to implement the provisions of part-IV).
(5) The provisions of ICESCR are similar to the provisions of the directive
principles of state policy in the Indian constitution, non-implementation of
which cannot give rise to judicial remedies.
INTERNATIONAL
CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION 1966
(INCERD)
SCOPE:
129 member-states are the parties of the international convention on the
Elimination of all forms of Racial discrimination 1966. There are only seven
articles. The main objective of this
Convention is to remove ‘racial discrimination’. Plain reading of these
articles gives us a clear picture.
Article 1: (1)
in this convention, the term ‘racial discrimination’ shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment, or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.
2. this
convention shall not apply to distinctions, exclusions, restrictions or
preferences made by a state party to this convention between citizens and
non-citizens.
3. nothing
convention shall may be interpreted as affecting in any way the legal
provisions of states parties concerning nationality, citizenship or
naturalization, provided that such provisions do not discrimination against any
particular nationality.
4. special
measures taken for the purpose of securing adequate advancement of certain
racial or ethic groups or individuals requiring such protection as may be
necessary In order to ensure such groups or individuals equal enjoyment or
exercise of human rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups and the
they shall not be continued after the objectives for which they were taken have
been achieved.
Article 2: (1)
states parties condemn racial discrimination and undertakes to pursue by all
appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all races,
and, to this end:
(a)
Each state party undertakes to
engage in no act or practice of racial discrimination against persons, groups
of persons or institutions and to ensure that all public authorities and public
institutions, national and local, shall act in conformity with this obligation;
(b)
Each state party undertakes not
to sponsor, defend or support racial discrimination by any persons or
organizations;
(c)
Each state party shall take
effective measures to review governmental, national and local policies, and to
amend, rescind or nullify any laws and regulations which have the effect of
creating or perpetuating racial discrimination wherever it exists;
(d)
Each state party shall prohibits
and bring to an end, by all appropriate means, including legislation as
required by circumstances, racial discrimination by any persons, group or
organization;
(e)
Each state party undertakes to
encourage, where appropriate, integrations multi-racial organizations and
movements and other means of eliminating barriers between races, and to
discourage anything which tends to strengthen racial division.
2. states
parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, special and concrete measures to ensure
the adequate development and protection of certain racial groups or individuals
belonging to them, for the purpose of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms. These measures shall in no
case entail as a consequence the maintenance of unequal or separate rights for
different racial groups after the objectives or which they were taken have been
achieved.
Article 3: state
parties particularly condemn racial segregation and apartheid and undertake to
prevent, prohibit and eradicate all practices of this nature in territories
under their jurisdiction.
4. state parties
condemn all propaganda ad all organizations which are basedon ideas theories of
superiority of one race or group of persons of one colour or ethic origin, or
which attempt to justify or promote racial hatred and discrimination in any
form, and undertake to adopt immediate and positive measures designed to
eradicate all incitement to, or act of , such discrimination and, to this end,
with due regard to the principles embodied in the universal declaration of
human rights and the rights expressly set forth in articles 5 of this
convention, inter alia:
(a) shall declare on offence punishable by
law all dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons another colour or
ethic origin, and also the provision of any assistance to racist activities
including the financing thereof;
(b) shall
declare illegal and prohibit organizations, and also organized and all other
propaganda activities, which promote and incite discrimination, and shall
recognize participation in such organizations or activities as an offence
punishable by law;
(c) shall not
permit public authorities or public institutions, national or local, to promote
or incite racial discrimination.
Article 5: in
compliance with the fundamental obligations laid down in article 2 of this convention,
states parties undertake to prohibit and to eliminate racial discrimination in
all its forms and to guarantee the right of everyone, without distinction as to
race, colour, or national or ethic origin, to equality before the law, notably
in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs
administering justice
(b) The right to security of person and protection by the state against
violence or bodily harm, whether inflicted by government officials or by any
individual, group or institution;
(c) Political rights, in particular
the right to participate in elections – to vote and to stand for election – on
the basis of universal and equal suffrage, to take part in the government as
well as In the conduct of public affairs at any level and to have equal access
to public service;
(d) Other civil rights, in particular:
(i)
The right to freedom of movement
and residence within the border of the state;
(ii)
The right to leave any country,
including one’s own, and return to one’s country;
(iii)
The right to nationality;
(iv)
The right to marriage and choice
of spouse;
(v)
The right to own property alone
as well as in association with others;
(vi)
The right to inherit;
(vii)
The right to freedom of thought,
conscience and religion;
(viii)
The right to freedom of opinion
and expression;
(ix)
The right to freedom of peaceful
assembly and association;
(e) Economic, social and cultural rights, in particular:
(i)
The rights to work, to free
choice of employment, to just and favourable conditions of work, to protection
against unemployment, to equal pay for equal work, to just and favourable
remunerating;
(ii)
The right to form and join trade
unions;
(iii)
The right to housing;
(iv)
The right to public health,
medical care, social security and social services;
(v)
The right to education and
training;
(vi)
The right to equal participation
in cultural activities;
(f) The right of access to any place or service intended for use by the
general public, such as transport, hotels, restaurants, cafes, theatres and
parks.
Article 6: state
parties shall assure to everyone within their jurisdiction effective protection
and remedies, through the competent national tribunals and other state
institutions, against any acts of racial discrimination which violate his human
rights and fundamental freedoms contrary to his convention, as well as the
right to seek from such tribunals just and adequate reparation or satisfaction
for any damage suffered as a result of such discrimination.
Article 7:
states parties undertake to adopt immediate and effective measures, particularly
in the fields of teaching, education, culture and information, with a view to
combating prejudices which lead to racial discriminating and to promoting
understanding, tolerance and friendship among nations and racial or ethical
groups, as well as to propagating the purposes and principles of the charter of
the united nations, the universal declaration of human rights, the united
nations declaration on the elimination of all forms of racial discrimination.
And this convention.
Yilmaz-dogan vs. Netherlands (C.E.R.D. 1988)
BRIEF FACTS:
yilmaz-dogman was a Turkish national, working in a Netherlands company. She was
pregnant. She asked the employer to give her maternity benefit leave. Instead
of giving maternity benefit to the petitioner, the employer dismissed her from
the services. On questioning, the company replied that such benefits would be
given only to Netherlands pregnant women. The petitioner submitted petition
before the committee on elimination of racial discrimination contending that
the employer’s act was violative of article of NCERD. The employer took the
defense the Netherlands civil code.
DECISION: the
committee on elimination of racial discrimination gave its decision in favour
of the petitioner, and instructed the Netherlands government to amend the
municipal laws according to the provisions of NCERD.
CONVENTION AGAINST TORTURE AND OTHER CRUL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT1984
SCOPE: 49 states
were present, and concluded the convention against torture and other cruel,
inhuman or degrading treatment or punishment 1948. Plain reading of the
articles gives their meaning. The main objectives of this convention is to
remove torture, cruel, inhuman, degrading treatment on human beings by the states.
This convention contains 16 articles.
Article1: (i)
for the purposes of this convention, the term “torture” means any act by which
severe pain or suffering, where physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him
or a third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent r acquiescence of public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.
2. this article
is without prejudice to any international instrument or national legislation
which does or may contain provisions of wider application.
Article 2: (1)
each state party shall take effective legislative administrative, judicial or
other measures to contain acts of torture in any territory under its
jurisdiction.
2. no
exceptional circumstance whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as
a justification of torture.
3. an order from
a superior officer or a public authority may not be invoked as a justification
of torture.
Article3: (1) no
state party shall expel,, return (refouler) or extradite a person to another
state where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
2. for the
purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including,
where applicable, the existence in the state concerned of a consistent pattern
of gross, flagrant or mass violations of human rights.
Article 4: (1)
each state party shall ensure that all acts of torture are offences under its
criminal law the same shall apply to an attempt to commit torture and to an act
by any person which constitutes complicity or participation in torture.
2. each state
party shall make these offences punishable by appropriate penalties which take
into account their grave nature.
Article5: (1)
each state party shall such measures as may be necessary to establish its
jurisdiction over the offences referred to in article 4 in the following cases:
(a) When the offences are committed in any territory under its jurisdiction
or on board a ship or aircraft registered in that state;
(b) When the alleged offender is a national of that state;
(c) When the victim is a national of that state if that state considers it
appropriate.
2. each state
party shall likewise take such measures as may be necessary to establish its
jurisdiction over such offences in cases where the alleged offender is present
in any territory under its jurisdiction and it does not extradite him pursuant
to article 8 to any the state mentioned in paragraph 1 of their article.
3. this
convention does not exclude any criminal jurisdiction exercised in accordance
with internal law.
Article6: (1)
upon satisfied, after an examination available to it, that the circumstances so
warrant, any state party in whose territory a person alleged to have committed
any offence referred to in article 4 is present shall take him into custody to
take other legal measures to ensure his presence. The custody and other legal
measures shall be as provided in the law of that state but may be continued
only for such time as is necessary to enable any criminal or extradition
proceedings to be instituted.
2. such state
shall immediately make a preliminary inquiry into the facts.
3. any person in
custody pursuant to paragraph 1 of this article shall be assisted in
communicating immediately with the nearest appropriate representative of the
state of which he is a national, or, if he is a stateless person, with the
representative of the state where he usually resides.
4. when a state,
pursuant to this article, has taken a person into custody, it shall immediately
notify the states referred to in article 5, paragraph 1, of the fact that such
person is in custody and of the circumstances which warrant his detention. The
state which makes the preliminary inquiry contemplated whether it intends to
exercise jurisdiction.
Article7: (1)
the state party in the territory under jurisdiction a person alleged to have
committed any offence referred to in article 4 is found shall in the cases
contemplated in article 5, if it does not extradite him, submit the case to its
competent authorities for the purpose of prosecution.
2. these
authorities shall take their decision in the same manner as in the case of any
ordinary offence of a serious nature under the law of that state. In the cases
referred to in article 5, paragraph 2, the standards of evidence required for
prosecution and conviction shall in no way be less stringent than those which
apply in the cases referred to in article 5, paragraph 1.
3. any person
regarding whom proceedings are brought in connection with any of the offences
referred to in article 4 shall be guaranteed fair treatment at all stages of
the proceedings.
Article8: (1)
the offences referred to in article 4 shall deemed to be included as
extraditable offences in any extradition treaty existing between states
parties. States parties undertake to include such offence as extraditable
offence in every extradition treaty to be concluded between them.
2. if a state
party which makes extradition conditional on the existence of a treaty receives
a request for extradition from another state party with which it has no
extradition in respect of such offences. Extradition shall be subject to the
other conditions provide by the law of the requested state.
3. states
parties which do not make extradition conditional on the existence of a treaty
shall recognize such offences as extraditable offences between themselves
subject to the conditions provide by the law of the requested state.
4. such offence
shall be treated, for the purpose of extradition between states parties, as if
they had been committed not only in the place in which they occurred but also
in the territories of the states required to establish their jurisdiction in
accordance with article 5, paragraph 1.
Article 9: 1.
States parties shall afford one another the greatest measure f assistance in
connection with criminal proceedings brought in respect of any of the offence
referred to in article 4, including the supply of all evidence at their
disposal necessary for the proceedings.
2. states
parties shall carry out their obligations under paragraph 1 of this article in
conformity with any treaties on mutual judicial assistance that may exist
between them.
Article 10: each
state party shall ensure that education and information regarding the
prohibition against torture are fully including in the training of law
enforcement personnel, civil or military, medical personnel, public officials
and other persons who may be involved in the custody, interrogation or
treatment of any individual subjected to any form of arrest, detention or
imprisonment
2. each state
party shall include this prohibition in the rules or instructions issued in
regard to the duties and functions of any such person.
Article 11: each
state party shall keep under systematic review interrogation rules,
instructions, methods and practices as well as arrangements for to custody and
treatment of persons subjected to any from of arrest, detention or imprisonment
in any territory under its jurisdiction, with a view to preventing any cases of
torture.
Article 12: each
state party shall ensure that its competent authorities proceed to a prompt and
impartial investigation, wherever there is reasonable ground believe that an
act of torture has been committed in any territory under its jurisdiction.
Article 13: each
state party shall ensure that any individual who alleges he has been subjected
to torture in any territory under its jurisdiction has the right to complain
to, and to have his case promptly and impartially examined by, its competent
authorities. Steps shall be taken to ensure that the complainant and witnesses
are protected against all ill-treatment or intimidation as a consequence of his
complaint or any evidence given.
Article 14: (1)
each state party shall ensure in its legal system that the victim of an act of
torture obtains redress and has an enforceable right to fair and adequate
compensation, including the means for as full rehabilitation as possible. In
the event of the death of the victim as a result of an act torture, his
dependants shall be entitled to compensation.
2. nothing in
this article shall affect any right of the victim or other persons to
compensation which may exist under be national law.
Article 15: each
state shall ensure that any statement which is established to have been made as
a result of torture shall not be invoked as evidence in any proceedings, except
against a person accused of torture as evidence that the statement was made.
Article 16: 1.
Each state party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel inhuman or degrading treatment or punishment
which do not among to torture as defined in article 1, when such acts are
committed by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity. In particular,
to substitution for reference to torture of reference to other forms of cruel,
inhuman or degrading treatment or punishment.
2. the
provisions of this convention are with prejudice to the provisions of any other
international instrument or national law which prohibits cruel, inhuman or
degrading treatment or punishment or which relates to extradition or expulsion.
1985 DECLARATION
ON THE HUMAN RIGHTS OF INDIVIDUALS WHO ARE NOT NATIONALS OF THE COUNTRY IN
WHICH THEY LIVE
INTRODUCTION:
baroness Elle was appointed as a special rapporteur to look into the matter of
expelled Asians from Uganda and Kenya.
He prepared a draft of human rights of aliens and particular of minority in a
state, and submitted it to the UN sub-commission on prevention of
discrimination and protection of minorities in 1974. The said draft has been
approved by the general assembly of UNO as ‘1985 declaration on the human
rights of individuals who are not nationals of the country in which they live’.
1985 DECLARATION
ON THE HUMAN RIGHTS OF INDIVIDUALS WHO ARE NOT NATIONALS OF THE COUNTRY IN
WHICH THEY LIVE
VIDE GENERAL
ASSEMBLY RESOLUTION NO. 144 (XL), G.A.O.R., 40TH SESS., the general
assembly resolved,…
Considering that
the universal declaration of human rights proclaims that all human being are
born free and equal in dignity and rights and that everyone is entitled to all
the rights and freedoms set for in the declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status….
Conscious that,
with improving communications and the development of peaceful and friendly
relation instruments should also be ensured for individuals who are not
nationals of the country in which the live,
Proclaims this
declaration:
Article1: for
the purposes of this declaration the term “alien” shall apply, with due regard
to qualifications made in subsequent articles, to any individual who is not a
national of the state in which he or she is present.
Article2: 1.
Nothing in this declaration shall be interpreted as legitimizing the illegal
entry into and presence in a state of any alien, nor shall provision be
interpreted as restricting the right of any state to promulgate laws and
regulations concerning the entry of aliens and the terms and conditions of
their stay or to establish differences between nationals and aliens. However,
such laws and regulations shall not be incompatible with the international
legal obligations of that state, including those in field of human rights.
2. this
declaration shall not prejudice the enjoyment of the rights accorded by
domestic law and of the rights which under international law a state is obliged
to accord to aliens, even where this declaration dose not recognize such rights
or recognizes them to a lesser extent.
Article 3: every
state shall make public its national legislation or regulations affected
aliens.
Article4: aliens
shall observe the law of the state in which they reside or are present and
regard with respect the customs and traditions of the people of that state.
Article5: 1.
Aliens shall enjoy, in accordance with domestic law and subject to the relevant
intonations obligations of the state in which they are present, in particular
the following rights:
(a)
The rights of life and security
of person; no alien be subjected to arbitrary arrest or detention; no alien
shall be deprived of his or her liberty except on such grounds and in
accordance with such procedures as are established by law;
(b)
The right to protection against
arbitrary or unlawful inference with privacy, family, home or correspondence;
(c)
The right to be equal before the
court, tribunals and all other organs and authorities administering justice
and, when prescribed by law, other proceedings;
(d)
The right to choose a spouse, to
marry, to found a family;
(e)
The right to freedom of thought,
opinion, conscience and religion; the right to manifest their religion or
beliefs, subject only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health r morals or the fundamental
rights and freedoms of others;
(f)
The right to retain their own
language, culture and tradition;
(g)
The right it transfer abroad
earnings, savings or other personal monetary assets, subject to domestic
currency regulations.
2. subject to
such restrictions as are prescribed by law and which are necessary in a
democratic society to protect national security, public safety, public safety,
public order, public health or morals or the rights and freedoms of other, and
which are consistent with the other rights recognized In the relevant
international instruments and those set forth in this declaration, aliens shall
enjoy the following rights:
(a) the right to level the country;
(b) the right to freedom of expression;
(c) the right to peaceful assembly;
(d) the right to own property alone as
well as in association with others, subject to domestic law.
3. subject to
the provisions referred to In paragraph 2, aliens lawfully in the territory of
a state shall enjoy the right to liberty of movement and freedom to choose
their residence within the borders of the state.
4. subject to
national legislation and due authorization, the spouse and minor or dependent
children of an alien lawfully residing in the territory of a state shall be
admitted to accompany, join and stay with the alien.
Article 6: no
alien shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment and, in particular, no alien shall be subjected without his or
her free consent to medical or scientific experimentation.
Article 7: an
alien lawfully in the territory of a state may be expelled there from only in
pursuance of a decision reached in accordance with law and shall, except where
compelling reasons of national security otherwise require, be allowed to submit
the reasons why he or she should not be expelled and to have the case reviewed
by, and be represented for the purpose before, the competent authority or a
person or persons specially designated by the competent author. Individual or
collective expulsion of such aliens on grounds of race, colour, religion,
culture, descent, or national or ethic origin is prohibited.
Article 8: 1.
Aliens lawfully residing in the territory of a state shall also enjoy, in
accordance with the national laws, the follpwing rights, subject to their
obligations under article 4:
(a)
The right to safe and healthy
working conditions, to fair wages and equal remuneration for work of equal
value without distinction of any kind, in particular, women being guaranteed
conditions of work not inferior to those enjoyed by men, with equal pay for
equal work;
(b)
The right to join trade unions
and other organizations or associations of their choice and to participate in
their activities. No restrictions may be placed on the exercise of this right
other than those of prescribed by law and which are necessary, in a democratic
society, in the interests of national security or public order or for the
protection of the rights and freedoms of others;
(c)
The right to health protection,
medical care, social security, social services, education, rest and leisure,
provided that they fulfill the requirements under the relevant regulations for
participation and that undue strain is not placed on the resources of the
state.
2. with a view
to protecting the rights of aliens carrying on lawful paid activities in the
country in which they are present, such rights may be specified by the
governments concerned in multilateral conventions.
Article 9: no
alien shall be arbitrarily deprived of this or her lawfully acquired assists.
Article 10: any
alien shall be free at any time to communicate with the consulate or diplomatic
mission of the state of which he or she is a national or, in the absence there
of, with the consulate or diplomatic mission of any other state entrusted with
the protection of the interests of the state of which he or she is a national
in the state where he or she resides.
SECOND OPTIONAL
PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, AIMING AT
THE ABOLITION OF THE DEATH PENALTY, 1989
Article 1: 1. No
one within the jurisdiction of a state party to the present optical protocol
shall be executed.
2. each state
party shall take all necessary measures to abolish the death penalty within its
jurisdiction.
Article 2: 1. No
reservation is admissible to the present protocol, except for a reservation
made at the time of ratification or accession that provides for the application
of the death penalty in time of war pursuant to a conviction for a most serious
crime of a military nature committed during wartime.
2. the state
party making such a reservation shall at the time ratification or accession
communicate to the secretary-general of the united nations the relevant
provisions of its national legislation applicable during wartime.
3. the states
parties to the present protocol shall include in the reports they submit to the
human rights committee, in accordance with article 40 of the covenant,
information on the measures that they have adopted to give effect to the
present protocol.
Article 4: with
respect to the present states parties to the covenant that have made a
declaration under article 41, the competence of the human rights committee to
receive and consider communications when a state party claims that another
state party is not fulfilling its obligations shall extend to the provisions of
the present protocol, unless the state party concerned has made a statement to
the contrary at the moment of ratification or accession.
Article 5: with
respect to the states parties to the (first) optional protocol to the
international covenant on civil and political rights adopted on December 16, 1966, the competence
of the human rights committee to receive and consider communications from
individuals subject to its jurisdiction shall extent to the provisions of the
present protocol, unless the state party concerned has made a statement to the
contrary at the moment of ratification or accession.
Article 6: 1.
The provisions of the present protocol shall apply as additional provisions to
the covenant.
2.
Without prejudice to the
possibility of a reservation under article 2 of the present protocol the right
guarantee in article 1, paragraph 1, of the present protocol shall not be
subject to any derogation under article 4 of the covenant.
Article 9: the
provisions of the present protocol shall extend to all parts of federal states
without any limitations or exceptions.
DECLARATION ON
THE RIGHT TO DEVELOPMENT, 1986
ARTICLE 1: 1.
The right to development is an inalienable human rights 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 freedom can be fully realized.
2. the human
rights to development also implies the full realization of the right of peoples
to self determination, which includes, subject to relevant provisions of both
international covenants on human rights, the exercise of their inalienable
rights to full sovereignty over all their natural wealth and resources.
Article 2: 1.
The human person is the central subject of development and should be the active
participant and beneficiary of the right to development.
2. the human
beings have a responsibility for development, individually and collectively,
taking into account the need for full respect of their human rights and
fundamental freedoms as well as their duties to the community, which alone can
ensure the free and complete fulfillment of the human being, and they should
therefore promote and protect an appropriate political, social and economic
order for development.
3. states have
the right and the duty to formulate appropriate national development polices
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.
Article 3: 1.
States have the primary responsibility for the creation of national and
international conditions favourable to the realization of the right to
development.
2. the
realization of the right to development requires full respect for the
principles of international law concerning friendly relations and co-operation
among states in accordance with the charter of the united nations.
3. states have
the duty to co-operate with each other in ensuring development and eliminating
obstacles to development. States should fulfill their rights and duties in such
a manner as to promote a new international economic order based on sovereign
equality, interdependence, mutual interest and co-operation among all states,
as well as to encourage the observance and realization of human rights.
Article 4: 1.
States have the duty to take steps, individually and collectively, to formulate
international development policies with a view of facilitating the full realization
of the right to development.
2. sustained
action is required to promote more rapid development of developing countries.
As a complement to the efforts of developing countries effective international
co-operation is essential in providing these countries with appropriate means
and facilities to foster their comprehensive development.
Article 5:
states shall take resolute steps to eliminate the massive and flagrant
violations of the human rights of peoples and human beings affected by
situations such as those resulting from apartheid, all forms of racism and
racial discrimination, colonialism, foreign domination and occupation,
aggression, foreign interference and threats against national sovereignty,
national unity and territorial integrity, threats of war and refusal to
recognize the fundamental right of peoples to self-determination.
Article 6: 1.
All states should co-operative with a view to promoting, encouraging and
strengthening universal respect for and observance of all human rights and
fundamental freedoms for all without any distinction as to race, sex, language
and religion.
2. all human
rights and fundamental freedoms are indivisible and interdependent; equal
attention and urgent consideration should be given to the implementation,
promotion and protection of civil, political, economic, social and cultural
rights.
3. states should
take steps to eliminate obstacles to development resulting from failure to
observe civil and political rights as well as economic, social and cultural
rights.
Article 7: all states should promote the
establishment, maintenance and strengthening of international peace and
security and, to that end, should do their utmost to achieve general and
complete disarmament under effective international control as well as to ensure
that the resources released by effective disarmament measures and used for
comprehensive development, in particular that of the developing countries.
Article 8: 1.
States should undertake, at the national level, necessary for the realization
of the right to development and shall ensure, inter alia, equality of
opportunity for all in their access basic resources, education, health service,
food, housing, employment and the fair distribution development process.
Appropriate economic and social reforms should be made with a view eradicating
all social injustices.
2. states should
encourage popular participation in all spheres as an important factor in
development and in the full realization of all human rights.
Article 9: 1.
All the aspects of the right to development set forth in this declaration are
indivisible and interdependent and each
of them should be construed in the context of the whole.
2. nothing in
this declaration shall be construed as being contrary to the purposes and
principles of the united nations, or as implying that any state, group or
person has a right to engage in any activity or to perform any act aimed at the
violation of the rights in the universal declaration of human rights and in the
international covenants on human rights.
Article 10:
steps should be taken to ensure the full exercise and progressive enhancement
of the right to development, including the formulation, adoption and
implementation of policy, legislative and other measures at the national and
international levels.
10. AMERICAN
CONVENTION ON HUMAN RIGHTS, 1969 (ACHR)
SCPOE: charter
of the united nations organization in 1945 is the foundation of the human
rights since the declaration of human rights, 1948 the concept of human rights
has been attracted by the international jurisprudents, political leaders,
sociologist, etc. the ICCEPR 1966, ICESCR 1966, NCERD 1966, etc. are the
further development. Besides these developments, certain active steps have been
taken regional wise. These are part of ‘SECOND GENERATION’ of the development
of HUMAN RIGHTS. The American convention on human rights, 1969 and the African
convention on human rights, 1981 are the important regional conventions on
human rights.
THE AMERICAN
COVENTION ON HUMAN RIGHTS, 1969 (ACHR)
The American
convention on human rights (in short ACHR) is an organization of American
states (in short OAS). This instrument contains an extensive guarantee of civil
and political rights. At the same time, reference to economic, social and
cultural rights are also made in this instrument. This instrument also provides
the rights of compulsory education and the right to form trade unions.
Under this
convention, the American commission on human rights has been established.
Washington D.C. and san Joes, Costa, Rica Are the headquarters of this
commission. The enforcement of the ACHR is entrusted to this American
commission on human rights.
The ACHR
provides a compulsory system of individual petitions an individual belonging to
any states party has right to file any petition against any person before
American human commission.
A clear reading
of the articles of ACHR gives lucid and clear understanding the objects and
human rights to be achieved. We shall read them hereunder:
Article 1: 1.
The states parties to this convention undertake to respect the rights and
freedoms recognized here in and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination for reasons of race, colour, sex, language, religion,
political or other opinion, national or social origin, economic status, birth,
or any other social.
2. for the
purposes of this convention, ‘Person’ means every human being.
Article 2: where
the exercise of any of the rights or freedoms referred to in article 1 is not
already ensured by legislative or other provisions, the states parties
undertake to adopt, in accordance with their constitutional processes and the
provisions of this convention, such legislative or other measures as may be
necessary to give effect to those rights or freedoms.
Article 3: every
person has the right to recognition as a person before the law.
Article 4: 1.
Every person has the right to have his life respected. This right shall be
protected by law, and, in general, from the moment of conception. No one shall
be arbitrarily deprived of his life.
2. in countries
that have not abolished the death penalty, it may be imposed only for the most
serious crimes and pursuant to a final judgment rendered by a competent court
and in accordance with a law establishing such punishment, enacted prior to the
commission of the crime. The application of such punishment shall not be
extended to crimes to which it does not presently apply.
3. the death
penalty shall not be re-established in states that have abolished it.
4. in no case
shall capital punishment be inflicted for political offences or related common
crimes.
5. capital
punishment shall not be imposed upon persons who, at the time the crime was
committed, were under 18 years of age or over 70 years of age; nor shall it be
applied to pregnant women.
6. every person
condemned to death shall have the right to apply for amnesty, pardon, or
commutation of sentence, which may be granted in all cases. Capital punishment
shall not be imposed while such a petition is pending decision by the competent
authority.
Article 5: 1.
Every person has the right to have his physical, mental, and moral integrity
respected.
2. no one shall
be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.
All persons deprived of their liberty shall be treated with respect for the
inherent dignity of the human person.
3. punishment
shall not be extended to any person other than the criminal.
4. accused
persons shall, save in exceptional circumstances, be segregated from convicted
persons, and shall be subject to separated treatment appropriate to their
status as unconvinced persons.
5. minors while
subject to criminal proceedings shall be separated from adults and brought
before specialized tribunals, as speedily as possible, so that they may be
treated in accordance with their status as minors.
6. punishments
consisting of deprivation of liberty shall have as an essential aim the reform
and social re-adaptation of the prisoners.
Article 6: 1. No
one shall be subject to slavery or to involuntary servitude, which are
prohibited in all their forms, as are the slave trade and traffic in women.
2. no one shall
be required to perform forced or compulsory labour. This prevision shall not be
interpreted to mean that in the those countries in which the penalty
established for certain crimes as deprivation of liberty at forced labor, the
carrying out of such a sentence imposed by a competent court is prohibited.
Forced labour shall not adversely affect the dignity or the physical or
intellectual capacity of the prisoner.
3. for the
purposes of this article the following do not constitute forced or compulsory
labour,-
(a) work or service normally required of a
person imprisoned in execution of a sentence or formal decision passed by the
competent judicial authority. Such work or service shall be carried out under
the supervision and control of public authorities, and any persons performing
juridical person;
(b) military
service and, in countries in which conscientious objectors are recognized,
national service that the law may provide for in lieu of military service;
(c) service
exacted in time f danger or calamity that threatens the existence or the
well-being of the community; or
(d) work of
service that forms part of normal civic obligations.
Article 7: 1.
Every person has the right to personal liberty and security.
2. no one shall
be deprived of his physical liberty except for the reasons and under the
conditions established before hand by the constitution of the state
party concerned or by a law established pursuant there to.
3. no one shall be subject
to arbitrary arrest or imprisonment.
4. anyone who is detained
shall be informed of the reasons for his detention and shall be promptly
notified of the charge or charges against him.
5. any person detained shall
be brought promptly before a judge or other officer authorised by law exercise
judicial power and shall be entitled to trial within a reasonable time or to be
released with prejudice to the continuation of the proceedings. His release may
subject to guarantees to assure his appearance for trail.
6. anyone who is deprived of
his liberty shall be entitled to recourse to a competent court, in order that
the court may decide without delay on the lawfulness of his arrest or detention
and order his release the arrest or detention is unlawful. In states parties
whose laws provide that anyone who believed. Himself to be threatened with
deprivation of his liberty is entitled to recourse to a competent court order
that it may decide on the lawfulness of threat, his remedy may not be
restricted or abolished the interested party or another person in his behalf is
entitled to seek these remedies.
7. no one shall be detained
for debt. This principle shall not limit the orders of a competent judicial
authority issued for non-fulfilment of duties of support.
Article 8: 1. Every person
has the right to a hearing, with the guarantees and within a reasonable time,
by a competent, independent, and impartial, previously established by law
in the substantiation of any accusation
of a criminal nature made against him or for the determination of his rights
and obligations of a civil, labour, fiscal, or any other nature.
2. every person accused of a
criminal offence has the right to be presumed innocent so long as his guilt has
been proven according to law. During the proceeding, every person is entitled,
with full equality, to the following minimum guarantees,...
(a) the right of the accused
to be assisted without charge by a translator or interpreter, if he does not
understand or does not speak the language of the tribunal or court;
(b) prior notification time
and means for the accused of the charge against him;
(c) adequate time and means
for the preparation of his defence;
(d) the right of the accused
to defend himself personally or to be assisted by legal counsel of his own
choosing, and to communicate freely and privately with his counsel;
(e) the inalienable right be
assisted by counsel provided by the state, paid or not as the domestic law
provides, if the accused does not defend himself personally or engage his own
counsel within the time period established by law;
(f) the right of the defence
to examine witnesses present in the court and to obtain the appearance, as
witnesses, of experts or other persons who may throw light on the facts;
(g) the right not be
compelled to be a witness against himself or to plead guilt; and
(h) the right to appeal the
judgment to a higher court.
3. a confession of guilt by
the accused shall be valid only if it is made without coercion of any kind.
4. an accused person
acquitted by a non-appealable judgment shall not be subjected to a new trail
for the same cause.
5. criminal proceedings
shall be public, except insofar as may be necessary to protect the interests of
justice.
Article 9: no one shall be
convicted of any act omission that did constitute a criminal offence, under the
applicable law, at the time it was committed. A heavier penalty shall be
imposed than the one that was applicable at the criminal offence was committed.
If subsequent to the commission of the offence the law provides for the
imposition of a lighter punishment, the guilt persons shall benefit there from.
Article 10: every person has
the right to be compensated in accordance with the law in the event he has been
sentenced by a final judgment through a miscarriage of justice.
Article 11: 1. Everyone has
the right to have his honour respected and his dignity recognised.
2. no one may be the object
of arbitrary or abusive interference with his private life, his family, his
home, or his correspondence, or of unlawful attacks on his honour or
reputation.
3. everyone has the right to
the protection of law against such interference or attacks.
Article 12: 1. Everyone has
the right to freedom of conscience and of religion. This includes freedoms to
maintain or to change one’s religion or beliefs, and freedoms to profess or
disseminate one’s religion or beliefs either individually or together
with others, in public or in private.
2. no one shall be subject
to restrictions that might impair his freedom to maintain or to change his
religion or beliefs.
3. freedom to manifest one’s
religion and beliefs may be subject only to the limitations prescribed by law
that are necessary to protect public safety, order, health, or morals, or the
rights or freedoms of others.
4. parents or guardians, as
the case may be, have the right to provide for the religious and moral
education of their children or wards that is in accord with their own
conventions.
Article 13: 1. Everyone
shall have the right to freedom of though and expression. This right shall
include freedom to seek, receive, and impart information and ideas of all
kinds, regardless of frontiers, either orally, in print, in the form of art, or
through any other medium of one’s choice.
2. the exercise of the right
provided for in the foregoing paragraph shall not be subject to prior censorship
by law to the extent necessary in order to ensure,...
(a) respect for the or
reputations of other; or
(b) the protection of
national security, public order, or public health or morals.
3. the right of expression
may not be restricted by in indirect methods or means, such as the abuse of
government or private controls over newsprint, radio broadcasting frequencies,
or equipment used in the dissemination of information, or by any other means
tending to impede the communication and circulation of ideas and opinions.
4. any propaganda for war
and any advocacy of national, racial, or religious hatred that constitute
incitements to lawless violence or to any other similar illegal action against
any person or group of persons on any grounds including those of race, colour,
religion, language, or national origin shall be considered as offences
punishable by law.
Article 14: 1. Anyone
injured by inaccurate or offensive statements of ideas disseminated to the
public in general by a legally regulated medium of communication has the right
to reply or make a correction using the same communications outlet, under such
conditions as the law establish.
2. the correction or rely
shall not in any case remit other legal liabilities that may have been
incurred.
3. for the effective
protection of honour and reputation, every publisher, and every newspaper,
motion picture, radio, and television company shall have a person responsible,
who is not protected by immunities or special privileges.
Article 15: the right of
peaceful assembly, without arms, is recognised. No restrictions may be placed
on the exercise of this right other than those imposed in conformity with the
law and necessary in a democratic society in the interest of national security,
public safety or public order, or to protect public health or morals or the
rights or freedoms of others.
Article 16: 1. Everyone has
the right to associate freely for ideological, religious, political, economic,
labour, social, cultural, sports, or other purposes.
2. the exercise of this
right shall be subject only to such restrictions established by law as may be
necessary in a democratic society, in the interest of national security, public
safety or public order, or to protect public health or morals or the rights and
freedoms of others.
3. the provisions of this
article do not bar the imposition of legal restrictions, including even
deprivation of the exercise of the right of association, on members of the
armed forces and the police.
Article 17: (1) the family is the natural and fundamental
group unit of society and is entitled to
protection by society and the state.
2. the right of men and
women of marriageable age to marry and to raise a family shall be recognised,
if they meet the condition required by domestic laws, insofar as such
conditions do not affect the principle of non-discrimination established in
this convention.
3. no marriage shall be
entered into without the free and full consent of the intending spouses.
4. the states parties shall
take appropriate steps to ensure the equality of rights and the adequate
balancing of responsibilities of the spouses as to marriage, during marriage,
and n the event of its dissolution. In case of dissolution, provision shall be
made for the necessary protection of any children solely on the basis of their
own best interests.
5. the law shall recognise
equal rights for children born out of wedlock and those born in wedlock.
Article 18: every person has
the right to a given name and to the surnames of his parents or that a minor on
the part of his family, society, and the state.
Article 19: every minor
child has the right to the measures of protection required by his condition as
a minor on the part of his family, society, and the state.
Article 20: 1. Every person
has the right to a nationality.
2. every person has the
right to the nationality of the state in whose territory he was born if he dose
not have the right to any other nationality.
(3) no one shall be
arbitrarily deprived of his nationality or f the change it.
Article 21: (1) everyone has
the right to the use and enjoyment of his property. The law may subordinate
such use and enjoyment to the interest of society.
2. no one shall be deprived
of his property except upon payment of just compensation, for reasons public
utility or social interest, and in the case and according to the forms
established by law.
(3) usury and any other form
of exploitation of man shall be prohibited by law.
Article 22: 1. Every person
lawfully in the territory of a state party has the right to move about in it
and to reside in it subject to the provisions of the law.
2. every person has the
right to leave country freely, including his own.
3. the exercise of the
foregoing rights may be restricted only pursuant to a law to the extent
necessary in a democratic society to prevent crime or to protect national
security, public safety, public order, public morals, public health, or the
rights or freedoms of others.
4. the exercise of the
rights recognised in paragraph 1 may also be restricted by law in designated
zones for reasons of public interest.
5. no one can be expelled
from the territory of the state of which he is a national or be deprived of the
right to enter it.
6. an alien lawfully in the
territory of a state party to this convention may be expelled from it only
pursuant to a decision reached in accordance with law.
7. every person has the
right to seek and be granted asylum in a foreign territory, in accordance with
the legislation of the state and international conventions, in the event he is
being pursued for political offences or related common crimes.
8. in no case may an alien
be deported or returned to a country, regardless of whether or not it is his
country of region, if in that country his race, nationality, religion, social
stats, or political opinions.
9. the collective expulsion
of aliens is prohibited.
Article 23: 1. Every citizen
shall enjoy the following rights and opportunities,...
(a)
To take part i the conduct of public affairs,
directly or through freely chosen representatives .
(b)
To vote and to be elected in genuine periodic
elections, which shall be by universal and equal suffrage and by secret ballot
that guarantees the free expression of the will of to voters; and
(c)
To have access, under general conditions of
equality, to the public service of his country.
2. the law may regulate the
exercise of the rights and opportunities referred to in preceding paragraph
only on the basis of age, nationality, residence, language, education, civil
and mental capacity, or sentencing by a competent court in criminal
proceedings.
Article 24: all persons are
equal before the law. Consequently, they are entitled, without discrimination
to equal protection of the law.
Article 25: 1. Everyone has the right to simple and
prompt recourse, or any other effective recourse to a competent court or
tribunal for protection against act that violated his fundamental rights
recognised by the constitution or laws of to state concerned or by this
convention, even though such violation may have been committed by persons
acting in the course of their official duties.
2. the state parties
undertake,...
(a) to ensure that any
person claiming such remedy shall have his rights determined by the competent
authority provided for by the legal system of the state;
(b) to develop the
possibilities of judicial remedy; and
(c) to ensure that the
competent authorities shall enforce such remedies when granted.
Article 26: the state parties undertake to adopt
measures, both internally and through international co-operation, especially
those of an economic and technical nature, with a view to achieving
progressively, by legislation r other appropriate means, the full realisation
of the rights implicit in the economic, social, educational, scientific, and
cultural standards set forth in the charter of the organisation of American
states as amended by the protocol of Buenos Aires.
Article 27: 1. In time of
war, public danger, or other emergency that threatens the independence or
security of a state party, it may take measured derogating from its obligations
under the present convention to the extent and for the period of time strictly
required by the exigencies of the situation, provided that such measures are
not inconsistent with its other obligations under international law and do not
involve discrimination on the grounds of race, colour, sex, language, religion,
or social origin.
2. the foregoing provision
does not authorise any suspension of the following articles:
Article 3(rights Juridical
personality), article 4 (right to life), article 5 (right to human treatment),
article 6 (freedom from slavery), article 9 (freedom from Ex post Facto Laws),
article 12 (freedom of conscience and religion), article 17 (right of the
family), article 18 (right to a name), and article 19 (right of the child),
article 20 (right of the family), and article 23 (right to participate in
government), or of the judicial guarantees essential for the protection of such
rights.
3.
Any state party availing itself of the right
of suspension shall immediately inform the other states parties, through the
secretary-general of the organization of American states, of the provisions the
application of which it has suspended, the reasons that gave rise to the
suspension, and the date set for the termination of such suspension.
Article 28: 1. Where a state
party is constituted as a Federal state, the national government of such state
party shall implement all the provisions of the convention over whose subject
matter it exercises legislative and jurisdiction.
2. with respect to the
provisions over whose subject matter the constituent units of the federal state
have jurisdiction, the national government shall immediately take suitable
measures, in accordance with its constitution and its laws, to the end that the
competent authorities of the constituent units any adopt appropriate provision
for the fulfilment of this convention.
3. whenever two or more
states parties agree to form a federation or other types of association they
shall take care that the resulting federal or other compact contains the
provisions necessary for continuing and rendering effective the standards of
this convention in the new state is organised.
Article 29: no provision of
this convention shall be interpreted as,...
(a)
Permitting any state party, group, or person
to suppress the enjoyment or exercise of their rights and freedoms recognised
in this convention or to restrict them to a greater extent than is provided for
here in;
(b)
Restriction the enjoyment or exercise of any
right or freedom recognised by virtue of the laws of any state party or by
virtue of another convention to which one of the said states is a party;
(c)
Precluding other rights or guarantees that
are inherent in the human personality or derived from representative democracy
as a from of government; or
(d)
Excluding or limiting the effect that the
American declaration of the rights and duties of man and other international
acts of the same nature may have.
Article 30: the restrictions
that, pursuant to this convention, any be placed on the enjoyment or exercise
of the rights or freedoms recognised in accordance with the laws enacted for
reasons of general interest and in accordance with the purpose for which such
restrictions have been established.
Article 31: other rights and
freedoms recognised in accordance with the procedures established in article 76
and 77 may be included in the system of protection of this convention.
Article 32: 1. Every person
has responsibilities to his family, his community, and mankind.
2. the rights of each person
are limited by the rights of others, by the security of all, and by the just
demands of the general welfare, in a democratic society.
11. AFRICAN CHARTER ON HUAMN RIGHTS AND
PEOPLES RIGHTS, 1981 (ACHR & PR, 1981)
The African charter on human
rights and peoples rights, 1981 (in short ACHR & PR, 1981) was drafted by
the organization of American unity (in short OAU). Under this charter, an
African commission on human and people’s rights has been established in Banjul
city. This commission is composed of eleven members. The independent experts
are appointed as the members.
Any individual of any of the
states parties may submit his grievance to the commission by a petition the
commission enquires into the matter. However, such application shall be field
only after the exhaustion of local remedies.
The Article of the charter
are crystal clear. By a glance through the articles, one can understand the
objects and concept of them. We shall study them, which are as follows.
Article 1: the member states
of the organization of African unity parties to the present charter shall
recognise the right, duties and freedom enshrined in this charter and shall
undertake to adopt legislative or other measures to give effect to them.
Article 2: every individual
shall be entitled to the enjoyment of the rights and freedoms recognised and
guaranteed in the present character without distinction of any kind such as
race, ethnic group, colour, sex, language, religion, political or any other
opinion, national origin, fortune, birth or other status.
article 3: 1. Every
individual shall be equal before the law.
2. every individual shall be
entitled to equal protection of the law.
Article 4: human beings are
inviolable. Every human being shall be entitled to respect for his life and the
integrity of his person. No one may be arbitrarily deprived of this right.
Article 5: every individual
shall have the right the respect of the dignity inherent in a human being and
to the recognition of his legal status. All forms of exploitation and degradation
of man particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited.
Article 6: every individual
shall the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid down
by law. In particular, no one may be arbitrarily arrested or detained.
Article 7: 1. Every
individual shall have the right to have his cause heard. This comprises,...
(a)
The right to an appeal to competent national
organs against acts violating his fundamental rights as recognised and
guaranteed by conventions, laws, regulations and customs in force;
(b)
The right to be presumed innocent until by a
competent court or tribunal;
(c)
The right to defence, including the right to
be defended by counsel of his choice;
(d)
The right to be tried within a reasonable
time by an impartial court or tribunal.
2. no one may be condemned
for an act or commission which did not constitute a legally punishable offence
at the time it was committed. Punishment is personal and can be imposed only on
the offender.
Article 8: freedom of
conscience, the profession and free partice of religion shall be guaranteed one
may, subject to law and order, be submitted to measures restricting the
exercise of these freedoms.
Article 9: 1. Every
individual shall have the right receive information.
2. every individual shall
have the right express and disseminate his opinions within the law.
Article 10: 1. Every
individual shall have the right to free association provided that he abides by
the law.
2. subject to the obligation
of solidarity provide for in article 29 no one may be compelled to join an
association.
Article 11: every individual
shall have the right to assembly freely with others. The exercise of this right
shall be subject only to necessary restrictions provided for by law in
particular those enacted in the interest of national security, the safety,
health, ethics and rights and freedoms of others.
Article 12: every individual
shall have the right to freedom of movement and residence within the borders of
a state provided he abides by the law.
2. every individual shall
have the right to leave any country including his own, and to return to his
country. This right any only be subject to restrictions, provided for by law
for the protection of national security, law and order, public health or
morality.
3. every individual shall
have the right, when persecuted, to seek and obtain asylum in other countries
in accordance with the laws of those countries and international conventions.
4. a non-national legally
admitted in a territory of a state party to the present charter, may only be
expelled from it by virtue of a decision taken in accordance with law.
5. the mass expulsion of non
nationals shall be prohibited. Mass expulsion shall be that which is aimed at
national, racial, ethnic or religious groups.
Article 13: every citizens
shall have the right to freely participate in the government of his country,
either directly or through freely chosen representative in accordance with the
provisions of the law.
2. every citizen shall have
the right of equal access to the public service of his country.
3. every individual shall
have the right of access to public property and services in strict equality of
all persons before the law.
Article 14: the right to
property shall be guaranteed. It may only be encroached upon in the interest of
public need or in the general interest of the community and in accordance with
the provisions of appropriate laws.
Article 15: every individual
shall have the right to work under equitable and satisfactory conditions and
shall receive equal pay for equal work.
Article 16: 1. Every
individual shall have the right to enjoy the best attainable state of physical
and mental health.
2. state parties to the
present charter shall take the necessary measures to protect the health of
their people and to ensure that they receive medical attention when they are
sick.
Article 7: 1. Every
individual shall have the right to education.
2. every individual may freely, take part in the
cultural life of his community
3. the promotion and
protection of morals and traditional values recognised by the community shall
be the duty of the state.
Article 18: 1. The family shall be the natural unit and
basis of society. It shall be protected by the state.
2. the state shall have the
duty to assist the family which is the custodian of morals and traditional
values recognised by the community.
3. the state shall ensure
the elimination of every discrimination against women and also ensure the
protection of the rights of the women and the child as stipulated in
international declarations and conventions.
4. the aged and the disabled
shall also have the right to special measures of protection in keeping with
their physical or moral needs.
Article 19: all peoples
shall be equal; they shall enjoy the same respect and shall have the same
rights. Nothing shall justify the domination of a people by another.
Article 20: 1. All peoples
shall have the right to existence. They shall have the unquestionable and
inalienable right to self-determination. They shall freely determine their
political status and shall pursue their economic and social development according
to the policy they have freely chosen.
2. colonised or oppressed
peoples shall have the right to free themselves from the bonds of domination by
resorting to any means recognised by the international community.
3. all people shall have the
right to the assistance of the states parties to the present charter in their
liberation struggle against foreign domination, be it political, economic or
cultural.
Article 21: 1. All peoples
shall freely dispose of their wealth and natural resources. This right shall be
exercised in the exclusive interest of the people. In no case shall a people be
deprived of it.
2. in the case of spoliation
the dispossessed people shall have the right to the lawful recovery of its
property as well as to an adequate compensation.
3. the free disposal of
wealth and natural resources shall be exercised without prejudice to the
obligation of promoting international economic co-operation based on mutual
respect, equitable exchange and the principles of international law.
4. state parties to the
present charter shall individually and collectively exercise the right to free
disposal of their wealth and natural resources with a view to strengthening
African unity and solidarity.
5. states parties to the
present charter shall undertake to eliminate all forms of foreign economic
exploitation particularly that practiced by international monopolies so as to
enable their peoples to fully benefit from the advantages derived from their
natural resources.
Article 22: 1. All peoples
shall have the right to their economic, social and cultural development with
due regard to their freedom and identity and in the equal enjoyment of the
common heritage of mankind.
2. states shall have the
duty, individually or collectively, to ensure the exercise of the right to
development.
Article 23: 1. All people
shall have the right to national and international peace and security. The
principles of solidarity and friendly relations implicitly affirmed by the
charter of the united nations and reaffirmed by the organization of African
unity shall govern relations between states.
2. for the purpose of
strengthening peace, solidarity and friendly relations, states parties to the
present charter shall ensure that,..
(a) any individual enjoying
the right of asylum under article 12 of the present charter shall not engage in
subversive activities against his country of origin or any other state party to
the present charter;
(b) their territories shall
not be used as bases for subversive or terrorist activities against the people
of any other state party to the present charter.
Article 24: all people have
the right to a general satisfactory environmental favourable to their
development.
Article 25: state parties to
the present charter shall have the duty to promote and ensure through teaching,
education and publication, the respect of the rights as well as corresponding
obligations and duties are understood.
Article 26: states parties
to the present charter shall have the duty to guarantee the independence of the
courts and shall allow the establishment and improvement of appropriate
national institutions entrusted with the promotion and protection of the rights
and freedoms guaranteed by the present charter.
Article 27: 1. Every
individual shall have duties towards his family and society, the state and
other legally recognised communities and the international community.
2. the rights and freedoms
of each individual shall be exercised with due regard to the rights to other
collective security, morality and common interest.
Article 28: every individual
shall have the duty to respect and consider his fellow being without
discrimination, and to maintain relations aimed to promoting, safeguarding and
reinforcing mutual respect and tolerance.
Article 29: the individual
shall also have the duty:
(1)
To preserve the harmonious development of the
family and to work for the cohesion and respect of the family, to respect his
parents at all times, to maintain them in case of need;
(2)
To serve his national community by physical
and intellectual abilities at its service;
(3)
Not to compromise the security of the state
whose national or resident he is;
(4)
To preserve and strengthen social and
national solidarity, particularly when the latter is threatened;
(5)
To preserve and strengthen the national
independence and the territorial integrity of his country an to contribute to
its defence in accordance with the law;
(6)
To work to the best of his abilities and
competence, and to pay taxes imposed by law in the interest of the society;
(7)
To preserve and strengthen positive African
cultural values in his relations with other members of the society, in the
spirit of tolerance, dialogue and consultation and, in general, to contribute
to the spirit of tolerance, dialogue and consultation and, in general, to
continue to the promotion of the moral well being of society;
(8)
To contribute to the best of his abilities,
at all times and all levels, to the promotion and achievement of African
unity...
Article 60: the commission
shall draw inspiration from international law on human and peoples’ rights,
particularly from the provisions of various African instruments on human and
people’s rights, the charter of the united nations, the charter of the
organizations of African unity, the universal declaration of human rights,
other instruments adopted by the united nations and by African countries in the
field of human and peoples’ rights as well as from the provisions of various
instruments adopted within the specialised agencies of the united nations of
which the parties to the present charter are members.
Article 61: the commission
shall also take into consideration, as subsidiary measures to determine the
principles of law, other general or special international conventions, laying
down rubies expressly recognised by member states of the organisation of
African unity, African practices consistent with international norms on human
and people’s rights, customs generally accepted as law, general principles of
law recognised by African states as well as legal precedents and doctrine.
INTERNATIONAL
HUMANTARIAN LAW
MEANING: the term
‘international humanitarian law’ has been coined very recently. It is the
subject involving humanitarian valves and human rights. In fact, it has become
an independent law, but remains as an associate with public international law.
The only difference between them is that the public international law. The only
difference between them is that the public international law deals the matters
between the member-states, where as the international humanitarian law deals
with the matters human rights of all the human beings from all the corners of
the world and all humanitarian values and freedoms.
IMPORTANT POINTS:
a.
International humanitarian law is a branch of
public international law. It is a recent subject evolved for the welfare of
human beings insisting for the protection of human beings’ natural rights.
b.
Prohibition of slavery: prohibition of
slavery in the USA and other developed countries is the first stage of
international humanitarian law. Condemnation of slavery and associated practise
is found in the various general human rights Concluded in the modern period.
More than fifty bilateral treaties on the abolition of slavery were concluded
between 1815 and 1880, and the conference of Berlin on central Africa of 1885
was able to state in its general act that ‘trading in slaves is for bidden in
conformity with the principles of international law as recognised by the
signatory powers’.
c.
Establishment of red cross: the establishment
of red cross by Henry Duant awakened the humanitarian values. The red cross
played a role in recognising the value of human beings.
d.
Protection of minorities: in every state,
minority people constitute a lesser number. The people consisting majority
harass the minority. The police, government, legislature, etc. Are naturally in
the control of majority people. The international law notice it and certain
initiative steps were taken to protect the minorities throughout the world. The
Indian constitution contains the necessary provisions for the protection of
minorities and their culture, etc.
e.
Establishment of UNO: the establishment of
UNO filled the aspirations in the philanthropists and humanitarians. The
preamble of UN charter starts, “we, the people of the united nations,...” it
means it ends the rule autocratic, feudal rulings throughout the world, and
peoples rule would start in the world.
f.
Democratic countries: the 20th
century witnessed the emergence of domestic countries in place of king’s and
feudal governance. Democracy is defined as the government by the people, for
the people and to the people. This is the recognition of humanitarian values
and natural rights of men.
g.
Human rights: the universal declaration of
human rights, 1948 and later development human rights are the part and parcel
of international humanitarian law.
h.
ICCPR, 1966; ICESCR, 1966; NCERD 1966, ETC.:
several conventions took place. Only a few of them are mentioned here. All
these conventions are the part and parcel of international humanitarian law.
REFUGEES/STATELESSNESS/EXPULSION/UNHCR
MEANING:
Refugee = one who flees for
refuge to another country --- especially from religious prosecution of
political commotion.
Due to various reasons,
people of one state flee to another state for their protection and livelihood.
The internal combatant and wars occur, the people of a state run away from that
state to other state this creates “statelessness” for such refugees.
Examples: in 1971, when the
international war took place in east Pakistan (now Bangladesh),millions of east Pakistan refugees came into India. When
china occupied Tibet in 1959, dalai lama, the spiritual leader of Tibetans, fled
away from Tibet and took asylum in India.
The people, who flee from
their native country due to political, economic or social circumstances,
another country, are called refugees. Until the host state accords nationality
or refuge status, such persons are called ‘stateless persons’. A host state has
a right to refuse entry into its territory to any alien. If any alien enters
into host state, that state has right to expel such alien. If the host state
exercise its powers and deports the refugee-aliens, serious problems may arise.
For example, if the central government declares the policy to expel the
Bangladeshis, who migrated from Bangladesh in 1971, the CIP (M), and other
opposition parties criticise it.
The flow of refugees creates
burdens and complications in the host state. Social, political and economical
problems arise.
Granting refugees by one
state may also create hostilities between that state and the parent state of
those refugees. Granting asylum to dalai lama and Karmapa lama by Indian
government caused annoyance to Chinese government. Still these are not cooled
down.
The host country may accept
refugees on humanitarian grounds for temporarily. Such refugees are called
‘temporary refugees’ or ‘first asylum’.
Racial discrimination leads
expulsion of a particular race from their native state. The people belonging to
that race become refugees. Examples: during the British reign, Britishers took
the Indian labourers to Uganda, Tanzania, Kenya, Fiji, etc. The Indian
labourers worked hard and became part of those countries, and acquired
properties. As soon as these countries got independence, the eyes of the
leaders of those countries fall upon the Indians. Idi Amin expelled all the
Indians from Uganda. Like this the Indians were expelled from some other ex-colonial
and now independent states. All of such Indians have become refugees. Now we
have been seeing the problems of Indians in Fiji.
There is a close
relationship between grating refuge and human rights.
Definition:
Article 1A(2) of the Geneva
convention on refugees, 1951 defines the term ‘refugee’. “a refuges is a person
who owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to return to it ”.
EXAMPLES:
(a)
Millions of Hindus migrate from Pakistan to
India in 1947 at the time of partition. They were refugees. It is the world’s
highest record to migrate the refugees from one country to another.
(b)
Millions of the citizens of east Pakistan
(now Bangladesh) came into India as refugees in 1971. It is the second highest
world’s record to migrate the refugees from one country to another.
(c)
Tamilian refugees from Sri Lanka into India
(d)
Dalai lama and his followers came Tibet as
refugees and settled in India.
(e)
Uganda, Kenya and Tanzania expelled a large
number of Indians from their countries, who have become refugees.
(f)
Palestinians fled away from Israel and took
shelter in surrounding Islamic countries from the last five decades. Etc,.
THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)
ESTABISHMENT OF UNHCR: the UNO recognised the
problem of refugees and their statelessness in the year 1950. To help the
refugees and the persons of statelessness, the UNO established united nations
high commissioner for refugees (for short UNCHR)in 1954 vide general assembly
resolution no. 319 (iv), 1949, but came into existence with effect from 1st
January, 1951. The headquarters of UNHCR is situated in Geneva of Switzerland.
In 1954 and 1981, the Noble Prizes for Peace was given to UNHCR for its efforts
of peace making in the world. In 1954, the noble prize was awarded to based UN
agency won the noble prize. The UNCHR is a subsidiary body of the UNO created
by the general assembly.
OBJECTS OF UNHCR: the office
of high commissioner for refugees aims at providing international protection
for refugees and seeks permanent solution to their problems through voluntary
repatriation, migration to other countries or local integration, besides
undertaking special humanitarian tasks.
FUNCTIONS:
(a)
Supervisory functions: many supervisory
functions over the application of the convention and protocol, including making
representations to states on behalf of individuals asserting their refugee
status, are performed by the office of the UNHCR. The high commissioner for
refugees submits annual reports to the general assembly through economic and
social council. An executive committee to determine the general policies
governing the operation of the office was established in 1959 vide general
assembly resolution no. 1166 (xii) 1957.
(b)
Human rights: the UNHCR’s has the primary
function of investigating alleged violations of human rights in the native stat
and also in the Host state.
(c)
Repatriation: the UNHCR’s mandate also includes monitoring the fate of
refugees voluntarily repatriated to their country of origin.
(d)
Humanitarian assistance: unlike many other
economic and technical assistance organizations such as the world bank, UNHCR
has concentrated its resources and duties first on enabling the most disparate
and vulnerable refugees of Third world countries to survive and to safeguard
their human rights. In a number of cases, the UNHCR has also provided
assistance to internally displaced persons, helps the host state in procuring
financial from the other states or the agencies of the UNO, and also in many
ways. All this is done by UNHCR for the refugees is only on humanitarian
grounds.
(e)
Conflicting duties: the UNHCR performs its
duties very cautiously. First of all its primary duty is to protect the
refugees who flee from their native lands for fear of persecuting, political
and economical reasons, etc. Generally such spots attract the international
politics, such as partition of India in 1947, tamilians issue in Sri Lanka,
Tibetans issue, etc. The refugee problem is not a solo problem. It accompanies
many problems, such as political, economic and social problems. At the same time,
the host state suffers a lot due to arrival of refugees. For example, dalai
lama, karmapa lapa came India as refugees from china. This created hostility
between china and India. Therefore, some of the refugees create political
hostilities between the host state and the native state.
In
certain occasions, the number of refugees may exceed thousands or lakhs . in
1971, nearly one corer Bangladeshis entered into India as refugees. To provide
food, shelter, etc. Is a highly risk and money involving process, which burdens
the host country. India experienced it in 1947 and 1971.
Besides
political and economical problems, some other problems, more particularly
social problems also create head-ache to the host country. Some of the refugees
so arrived involve in anti-social activities for their roti, kapada and makan.
They work on less wages. It creates unemployment problem in the host state into
more rigidity. Prostitution is also a common evil which creeps into the host
country by the refugees.
Due
to these reasons, generally the host country is not in a position to welcome
the refugees. Adding to it, the very act of extending protection to individuals
is often a harsh commentary on the behaviour of the public authorities in the
country from which they have fled.
The
office of the high commissioner may also find itself treated as a nuisance if
not an outright adversary by the host government, as the refugees may
complicate its relations with their home country.
Although
the high commissioner’s original mandate contemplated a short-term protective
mission for rather limited numbers of people pending negotiation of conditions
for their safe return to the country of rigin, the vast numbers actually
displaced by civil war and persecution and the often indefinite prolongation of
exile have required the high commissioner and his colleagues to Marshall
resources for maintaining and in some cases integrating their clients into new
lands.
(f)
assistance to one of the races in one
country: to-day science and technology has been developed. The television,
telephone, internet, computer technologies make the world into a ‘global
village’. The sufferings of Kashmir Pandits in India, Kurds in Iraq,
Mujahadeens in Pakistan, etc. Are televised throughout the world. The UNHCR
also concentrates on such problems, along with the other organs of the UNO.
IMPORTANT POINTS:
A.
IMPORTANT CONVENTIONS ON REFUGEES: the
convention on international status of refugees held on 28th October,
1933; convention on the status of refugees, 1951; convention of refugees
seamen, 1857; the OAU convention covering the specific aspects of refugee
problems in Africa, 1969; the European agreement on the abolition of Visas for
refugees 1959; the European agreement on the transfer of responsibility for refugees,
1980; etc.
B.
Afghanistan refugees in Pakistan: due to
invasion of the then USSR on Afghanistan, lakhs of Afghanistan fled away to
Pakistan. In February, 1980, the international human rights commission
condemned the soviet invasion. The commission appointed professor F. Ermacora
of Austria as a special reporters for Afghanistan in august, 1984. He did not
receive any co-operation from the authorities of Afghanistan. He visited
Pakistan, and submitted a report to the commission in February, 1985. The report
contained details of political and historical background to the situation, the
impact of the events on civil and political right, economic and social rights
and self-determination and also considered the state of human rights in the
armed conflict which was then in progress. The report also instructed the
Afghanistan to respect the international obligations and stop torturing
political opponents the report also instructed that all the parties to the
conflict should oblige the international and humanitarian laws, and accept the
supervision of the red cross. Finally, the report recognised the right of
40,00,000 afghan refugees to return from Pakistan to their homes.
C.
Vietnamese refugees: due to US-Vietnamese
war, several lakhs of Vietnamese refugees fled away to the neighbouring
countries. In july, 1989, Kurt Waldheim, the then general secretary of UNO took initiative steps and convention a
sixty-five country meeting on Vietnamese refugees and displaced persons. Waldheim
also secured a doubling of the number of resettlement places (to 2,60,00) and
elicited $ US 190 million in new funds for resettlement centres. He also
negotiated an agreement with Hanoi
government which resulted in the introduction of orderly departure process.
D.
Palestinian refugees: in Arab-Israel wars,
several thousands of Palestinians became refugees and took shelter in the
neighbouring Islamic countries. The general assembly passed a resolution no.
242 in 1967 recognising the rights of the Palestinian refugees.
E.
Cambodian refugees: due to Sino-Soviet
differences, wars conflicts took place in Cambodian talks took place under the
supervision of security council. The Un transitional authority in Cambodian (in
short UNTAC) and UN advance mission in Cambodian (in short UNAMIC) were
constituted by the security council for amicable settlement in Cambodia in
1991. UNTAC’s objects were human rights electoral, military, civil
administration, police, repatriation and rehabilitations. Both the UNTAC and
UNAMIC performing their functions well. In October, 1992, the security council
passed a unanimous resolution welcoming the achievements of UNTAC in term of
extensive military deployment, promulgation of the refugees, progress in
rehabilitation, and campaigns for respect for human rights.
The UNTAC and UNAMIC were to function in
November, 1991 by discussing with the UN high commissioner for refugees repatriation routes, reception
centres and resettlement areas. It subsequently established mine-awareness and
clearance programmes. Later UNTAC
and UNAMIC were merged.
F. running, a famous international
jurisprudent states: “the only generalization which seems at all acceptable is
that the practice of states in this regard is not based upon any generally
recognized right of asylum so far as general international law accords to the
various accredited diplomatic officers certain well-recognised immunities from
local jurisdiction, such as immunity of their official residences and offices
from invasion by local authorities. Humanitarian, political or other motives
may lead to the original grant of asylum but once the refugee is inside the
legation the territorial state is faced with an insoluble dilemma. Assuming the
state of refuge will not surrender to refugee, the territorial state can
apprehend him only by violating the immunity of the diplomatic premises or,
possibly, by breaking diplomatic relations. The fact is that such extreme
measures are considered too high a price to pay for apprehension of the
refugee.”
G. “right to asylum”: is
every refugee entitled to right to asylum? Is the right to asylum a mandatory
or directory according to the international humanity law? These are questions
often placed before the jurisprudents of the international law. If the answer is
positive, i.e., “yes”, it means the interference in the rights of the sovereign
state. If the answer is negative, i.e., “no”, it leads to the destruction of
individual’s rights and freedoms. There arises a dilemma.
H. status of refugee: it
depends upon the policy adopted by the host state. In 1971, about one corer
Bangladesh came into as refugees. This is the world record. The Indian
government did not expel those refugees. Moreover it treated them with love and
affection. Entire world astonished and appreciated that how India managed this
over burdened issue.
If the hoist state permits
the refugees on temporary basis, it may allow such refugees, until the
conflicts (whether internal or external)
are cooled down, and the situation in the host state has become
smoother. While the matter dose stand unsettled, some of the refugees spread in
the other parts of the host state and search the ways to settle their
livelihood. Some of the refugees may succeed in getting employment in the host
country. Later after same years, the so-called settled refugees do not want to
return to their native state in spite of the demands of the host state and the
native state. For the same reason, Lakhs of Bangladeshis remained in India, who
have spread throughout the country. Thus gradually the refugees may acquire
citizenship of the host state.
Until 1998, the Britain had
followed the policy that in certain occasions, she would grant citizenship. It
granted the citizenship to several thousands of Indians, who were expelled from
Uganda, Kenya, Tanzania, etc. By the autocratic leaders of those countries.
Since 1998, the British government righted its policy.
RIGHTS OF REFUGEES
1.
Right to humanitarian treatment: the refugees
are entitled to be treated with humanitarian treatment.
2.
Constitutional rights: the constitutional
rights and civil rights are also available to such refugees. Article 9 of the
1933 Monte-video convention on rights and duties of states: “nationals and
foreigners are under the same protection of the law and the national
authorities and the foreigners may not claim rights other or more extensive
than those of the nationals”.
3.
Lord Palmerstone, foreign secretary of the
Britain, obverted in 1850 as follow: “we shall be told, perhaps, as we have
already been told, that if the people of the country are liable to have heavy
stones placed upon their breasts, and police officers to dance upon them; if
they are liable to have their heads tied to their knees, and to left for hours
in that state; or to be swung like a pendulum and to be bastinadoed as they
swing, foreigners have no right to be better treated than the natives, and have
no business to complain if the same things are practise upon them. We may be
told this, but this is not my opinion, nor do i believe it is the opinion of
any reasonable man”.
4.
The international law commission (ILC): in
1957, ILC debated the second report o state responsibility of its special
Rapporteur. The Rapporteur. The Rapporteur proposed in his report the following
draft article:
“article
5.1. the state is under a duty to ensure to aliens the enjoyment of the same
civil rights, and to available to them the same individual guarantees as are
enjoyed by its nationals.”
These
rights and guarantees shall not, however, in any case be less than the
‘fundamental human rights’ recognised and defined in contemporary international
instruments.
5.
Rights of the state to refuse or an alien: in
attorney-general for Canada vs. Cain (1906 A.C. 542), the privy council
observed: “one of the rights possessed by the supreme power in every state is
the right to refuse to permit an alien to enter that state, to annex what
conditions it pleases to the permission to enter it, and to expel or deport
from the state, to annex what conditions it pleases to the permission to enter
it, and to expel or deport from the state, at pleasure, even a friendly alien,
especially if it considers his presence in the state opposed to its peace,
order and good government, or to its social or material interests.”
6.
British practice: with regard to the
deportation of stateless persons, British practice has been expressed as
follows: “her Majesty government observe the principle that an alien should not
be deported except to the country of which he is national. Accordingly, it is
not the practice to deport stateless aliens resident in the united kingdom.”
7.
Human rights Trestles: human rights treaties
contain guarantees concerning the expulsion of aliens or refugees.
8.
Expulsion of Asians from Uganda: while
Britishers reigned Uganda, Kenya, Tanzania, etc, they brought the Asian
labourers (particularly Indian labourers) to those countries. In 1972, Uganda
expelled the Asians from Uganda. The Britain acknowledged and acted upon an
international law obligation to admit them. In R vs. Immigration officer, ex P.
Thakrar (1974 Q.B. 684 C.A.), the lord chancellor (lord Hailsham) stated: “if i
ay now turn to the position in international law more generally, the attorney general, acting
in his capacity as the professional legal advisor to the government, and not,
as quite improperly suggested, instigated by his political colleges, advised us
that in international law a state is under a duty as between other states to
accept in its territories those of its nationals who have now where else to go.
If a citizen of the united kingdom is expelled, as i think illegally from
Uganda, and is not accepted for settlement else where, we could be required by
any stat where he then was to accept him.”
9.
Discussing about the expelled Asians from
Kenya and Uganda, in Van vs. Home office (1974 E.C.R. 1337), the European court
of Justice observed: “it is a principle of international law.... that a state
is precluded from refusing to its own nationals the right of entry or
residence. To whom is the resulting duty owed? All states or none?”
10.
In his book nationality and statelessness in
international law, Weiss writes: “as between national and state of nationality
the question of the right of sojourn is not a question of international law. It
may, however bearing on the relations between states. The expulsion of
nationals forces other states to admit aliens, but, according to the accepted
principles of international law, the admission of aliens is the discretion of
each state.... it follows that the expulsion of a national may only be carried
out with the consent of the state to whose territory he is to be expelled, and
that the state of nationality is under a duty towards other states to receive
its nationals back on its territory.”
13.
right to freedom of movement: every one has the right to freedom of movement
and residence within the borders of each state. Every one has the right to
leave any country, including his own, and to return to his country. (article 13
of universal declaration of human rights, 1948)
14.
rights to asylum: every one has the right to seek and to enjoy in other
countries asylum from persecution. 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 14 of UDHR,
1948) this right is also asserted by article 12 of the ICCPR, 1966.
15.
right to receive damages: if the property of any alien or refugee is destructed
or destroyed by the host state, such host state is liable to pay compensation
for such property to such alien or refugee. This right is asserted by the
Harvard Draft convention on the international responsibilities of states for
injuries to aliens, 1961.
H.
post-conflict peace-building –peacemaking and peace-keeping operations: the
problem of refugees starts when an internal disturbance or external aggression
is posed against a state or if the natural disasters rupture. Even political or
social or religious conflicts lead to refugee problem. If the problem, by which
the refugees fled away to neighbouring or a third country, wish to come back,
if the circumstances in their home state are settled. Peace-making and
peace-keeping operations, to be truly successful, must come to include
comprehensive efforts to identify and support structures which will tend to
consolidate peace and advance a sense of confidence and well-being among
people. Through agreements ending civil strife, these may include disarming the
previously warring parties and the restoration of order, the custody and
possible destruction of weapons, repatriating refugees, advisory and training
support for security personal, monitoring elections, advancing efforts to
protect human rights, reforming or strengthening governmental institutions and
promoting formula and in formula processes of political participation.
H.
REPORT OF GENERAL ASSEMBLY: in his report dated 31st January, 1992,
the secretary- general stated as follows: “this new dimension of insecurity
must not be allowed to obscure the continuing and devastating problems of
unchecked population growth, crushing debt burdens, barriers to trade, drugs
and the growing disparity between rich and por. Poverty, disease, famine,
oppression and despairs abound, joining to produce 17 million refugees, 20
million displaced persons and massive migrations of peoples within and beyond
national borders. These are both sources and consequences of conflict that
require the ceaseless attention and the highest priority in the efforts of the
united nations.”
CONCLUSION:
the progressive development of international law is a continuing process. There
remain a number of areas in which agreement on more detailed legal regimes is
still needed. One of such lacunae is the ‘status of refugees’. The indigenous
peoples rights have to be protected by the international law. The UN working
group on indigenous populations is busy in formulating appropriate of mass
exodus of persons, whether spurred by war, natural disaster, tyranny, or
economic deprivation, is growing constantly in all corners of the world. The
existing international law on refugee status is not devised to deal with mass
exodus, but it has not yet proved possible to adopt a comprehensive new legal
regime in this difficult but vital area.
14. NON-GOVERNMENTAL AND OTHER AGENCIES
OF UNO CONCERNING HUMAN RIGHTS AND PHILANTHROPIC ACTIVITIES
14. A. NON-GOVERNMENTAL AND
OTHER AGENCIES OF UNO
14. B. INTERNATIONAL RED
CROSS AND HUMAN RIGHTS
INTRODUCTION: the international
Red Cross is a non-political non-official international humanitarian
organization. It is dedicated to serve the mankind in peace and war. The
prohibition of war is good for all. At the same time, nobody is in a position
to stop the wars between the nations. Several thousands and lakhs of soldiers
and civilians are put to trouble due to war and also due to natural disasters.
The answer is given to the world by the Red Cross and red to war crescent. It
is fortunate that this magnificent organization was created in time to
alleviate so much of the sufferings of war that this century experienced.
ESTABLISHMENT: initially,
the international red cross, was founded by Henry Dunant, a young Swiss
businessman. In 1859, Henry Dunant travelled through north Italy. At that time,
the historic battle Solferino was occurred in north Italy. Dunant saw the
miserable scenes which resulted due to savage battle, and wounded persons,
dying soldiers. He also observed that the wounded persons and dying soldiers
were barely neglected by both sides of the warriors. He advocated to help those
wounded and dying soldiers. He felt the necessity to help such victims. He
advocated and accumulated certain volunteers fro the surrounding villages, and
began to serve them, by providing medicines and medical attendance.
His attempt were attracted
by both the parties of the war. The captains of the war also shared the views
of Dunant, and they did not object and obstruct the works of Dunant and his
volunteers.
Dunant wrote ‘Un Souvernir
de Solferine’, and advocated the people all over the world about the necessity
of the helping the wounded persons and dying persons on humanitarian basis. He
argued that very human being has right to live and right to have medical
facilities. Dunant’s plea met with success. Very soon, this incident took into
the shape of a philanthropic organization.
The first Geneva convention
on red cross took place in 1864 and concluded a treaty signed by the
participating states agreeing to provide relief to the wounded and the sick of
the armies in the field. By the same treaty, ‘the international committee of
the red cross’ (ICRC), an independent neutral institution, the founder
organization of the red cross. It has since grow into a mighty mission with
branches all over the world symbolising the spirit of compassion and universal
brotherhood.
The League of nations, which
was founded in 1919, after the first world war, had created red cross society
with headquarters in Geneva of Switzerland.
The humanitarian work of the
red cross during the first world war was of such value for all the belligerents
that the authors of the covenant of the league of nations included article 25,
which ran thus: “the members of the league agree to encourage and promote the
establishment and co-operation of duly authorized voluntary national red cross
organizations having as purposes the improvement of health, the prevention of
disease and the mitigation of suffering throughout the world.”
Since then it began to
coordinate the work of international societies, which now number more than 200.
ICRC exercise a unique
position among the governmental and non-governmental organizations of the UNO.
ICRC’s place is uniquely valuable in the global order of humanitarian things.
ICRC, through various of its dignitaries and officials, has been generously
supportive and encouraging ever since its establishment.
Geoffrey best writes: “the
international committee of the red cross has acquired a status and position in
the higher strata of international affairs among the international
non-governmental organisations. The acts of ICRC are incomparable and
unthinkable with other organizations. In fact without ICRC, the UNO is
incomplete. The ICRC, not surprisingly in view of its unique legal status and
its special relationship with governments, considers itself to be an NGO-plus,
and surely deserves to be so considered.”
THE RED CROSS (GENEVA)
CONVENTIONS, 1949
In the year 1949, four
conventions were concluded in Geneva. So far 183 states participated and signed
it. These four Geneva conventions on the protection of victims of war,
concluded by states under the auspices of the international committee of the
red cross (ICRC). ‘Geneva convention for the Amelioration of the conditions of
the wounded and sick in Armed forces in the field’ is one of the important
conventions.
The conventions recognised
the emblem and dress of the personnel of Red Cross society. The Red Cross on
white ground and the words “red cross” or “Geneva cross” is recognised emblem.
The red cross, Red Crescent or red lion and sun or of other emblem used by Red
Cross society for its various wings, should not be misutilised. Article 38 of
the 1949 convention imposes several restrictions on the use of the emblems of
the RCS.
Article 21 of the convention
gives protection to the persons of Red Cross society and its vehicles involved
or engaged in the service of wounded and sick in armed forces in the field. The
participating states in the war or belligerency should not harm any such
personnel or vehicles of Red Cross. The personnel and vehicles of Red Cross are
entitled this protection so long they are in serving the wounded or sick
people.
However, according to
article 22, this protection is not available to any person of Red Cross, if he
himself is engaged in espionage, concealing arms and ammunition or sheltering
one parties of the military/belligerent persons.
Article 24 says that all the
participating states in the war or belligerency should respect and protect the
personnel and vehicles of the Red Cross.
Article 28 empowers the
belligerents to retain personnel, i.e. doctors, nurses, compounders,
stretcher-bearers etc, of the national red cross societies, if they require
them for the health of the prisoners. It does not mean that the persons of
national Red Cross societies so detained are not prisoners. They may be
detained only for medical services with request. The belligerent military
authorities should issue identify cards preferably brassard and water-resistant
duly signed and stamped by the competent military authority.
At the same time, those
persons detained to obtain advantages or benefits from these conventions and
also from the provisions of Geneva Convention of 1949 on Prisoners of war. The
personnel of Red Cross so detained are entitled to treat the persons shown by
the belligerents and also war prisoners, and go camps outside and treat the
wounded and sick persons whether they belong to the belligerents or their
opposite party. After performing their services, they have to return to the
belligerents by whom they are retained.
The conventions of 1949
provide protection to the personnel of Red Cross. Whatever the type of the
government in any country, the state must honour the Red Cross and give
necessary protection to its personnel.
Oppenheim explains the
following rules:
(a)
The personnel of Red Cross society or the
national societies or the volunteers should wear the red cross society dress
and emblem. Each of them should possess identity card with him. They should
hoist the flag of Red Cross society on their vehicles to recognise their
identity very easily.
(b)
The personnel should possess only medical
equipment and medicines, but not weapons.
(c)
In case of detained personnel of Red Cross by
the belligerent group, they must wear on their left arm, a water-resistant
armlet (brassard) with the distinctive sign, stamped by the competent military
authority.
(d)
According to articles 44 and 53 except to
indicate the protected medical units, establishments, personnel and material,
the Red Cross emblem should not be used, either in peace or war.
Resolution no. 770, dt.
13-8-1991, passed by the security council, directs that ‘unimpeded and
continuous access to all camps, prisons and detention centres’ be granted to
the international committee of red cross and other relevant humanitarian
organisations, and that ‘all parties and others concerned take the necessary
measures to ensure the safety of the united nationals and other personnel
engaged in the delivery of humanitarian assistance’.
Resolution no. 771
unanimously resolved commands that all concerned desist from all breaches of
international humanitarian law and threatened further action in the event of
non-compliance.
ROLE OF RED CROSS
Basically, Red Cross is
established for safety guarding humanitarian values. When it started by Henry
Dunant, it was confined only to serve the victims of war. Soon, thereafter, it
realised that natural disasters too bring in their wake great human suffering
and that there would be great necessity to serve the human beings suffered by
natural disasters. The Red Cross preaches the principles of ‘good neighbours’,
i.e. philanthropic principles to serve the human brotherhood throughout the
world irrespective of language, sex, race, religion, country, region, etc.
Gradually, the net work of
the red cross extended to several fields, i.e. service to armed forces, service
to war veterans, disaster service, first aid and nursing, health and education,
maternity, child welfare services, etc.,
1.
FUNDAENTAL PRINCIPLES OF RED CROSS: the
fundamental principles of the red cross and red crescent are humanity,
impartiality, neutrality, independence, voluntary service, unity and
universality.
Humanity
is the ark of the movement’s covenant. The Red Cross’s calling and duty (even,
so far as the letter of the law regarding the ICRC goes, its right to succour,
assist, and so far as law allows it, protect war’s victims and suffers.
Impartiality
guarantees that it makes no discrimination as to nationality, race, religious
beliefs, class or political opinion and gives priority in treatment only ‘to
the most urgent cases of distress’.
Neutrality
drops anchor in the equal-application doctrine. In order to continue to enjoy
the confidence of all, the Red Cross may not take sides in hostilities or
engaged at any time in controversies of a political, racial, religious or
ideological nature. Whether, therefore, warring parties are great or small,
good or bad, state-supporting or revolutionary, the Swiss-Iy neutral ICRC
expects to be able to inter prose its humanitarian operations without affecting
any party’s legal or political position.
Independence
simply means that national societies ought to be free enough from the power and
influence of the states they inhabit to pursue their humanitarian vocation
without regard to its political interests.
Voluntary
service is main concept of Red Cross. The job in Red Cross is voluntary basis.
It is not a regular or government job. The personal, who wants to be recruited
in Red Cross, must devote him self for the service and must have humanitarian
values. Dedication to voluntary service is the primary concept and essential to
the Red Cross personnel.
Unity
is the strength of the organization.
2.
Prisoners of war: at the first, the ICRC
concentrated on the pitiable circumstances of
the prisoners of war: ICRC argued that even the most awful of war
criminals, fallen as a prisoner into the hands of an enemy state, brought t trial,
found guilty, and sentenced to long imprisonment, has right to be treated to
the standards of food, accommodation, visits by representatives of the
protecting power and the ICRC, etc. These are called “international minimum
standard human rights”.
The
effect is that the ambition of ICRC was included as article 85 in the prisoners
of war convention, which thus reads: “prisoners of war prosecuted under the
laws of the detaining power for acts committed prior to capture shall retain,
even if convicted, the benefits of the present convention.”
Regarding
prisoners of war, the red cross undertakes the following four important
functions,---
(a) Red
cross concerns in the first place the identification of the prisoners of war
and communicates their information, their where about and physical condition to
their home countries.
(b) It
involves arranging facilities for correspondence with their families and the
despatch of parcels.
(c) It
covers visits to prisoner-of-war camps and renders medical services.
(d) It
extends to the repatriation, usually on an exchange basis of the seriously
wounded.
3.
Right to health is a human right: according
to the objectives of the red cross society, right to live is not sufficient, it
must include the right to health, whether such person is a participant in the
war or suffered in any natural disaster. Every person is entitled to recoup his
health. Hence it is the duty of every human being to serve the wounded or sick
persons. This right extends to the war times and also as well as to peace times
and also in cases of natural disasters.
4.
Quality of life: the right to health includes
‘quality of life’. Quality of life means the condition of life resulting from
the combination of the effects of the complete range of factors such as those
determining health, happiness (including comfort in the physical environment
and a satisfying occupation), education, social ad intellectual attainments,
freedom of action, justice and freedom of oppression.
5.
Health services: the Red Cross society
renders health services to the needy people in peace and war. The purpose of
health services is to improve the health status of population. The range of
health services rendered by the Red Cross society is very wide and effective.
These health services can also be seen as essential for social and economic
development.
6.
Socio-economic conditions: socio-economic
conditions highly influence human health. For the majority of the world’s
people, health status is determined primarily by their level socio-economic
development. The poor socio-economic conditions cause the development of
epidemic diseases. The Red Cross society takes appropriate steps to remove ill
socio-economic elements and to educate the poor and needy people.
7.
Right to health: article 25 of the universal
declaration of human rights, 1948 states: “everyone has the right to a standard
of living adequate for the health and well-being of himself and his family....”
The
preamble of the world health organisation constitution affirms that health is
one of the fundamental rights of every human being to enjoy the highest
attainable standard of health.
The
right to health includes the right to medical care. Actually, the Red Cross
society is involved to achieve this target to the highest peak in the human
being’s civilization.
8.
Right to medical care: the aims and objects
of the red cross society are crystal clear and state that very human being,
whether in peace or war, or in natural disasters is entitled, irrespective of
his religion, nationality, race, colour, sex, to obtain medical care, and
services. Due to the efforts of red cross society, now health is no longer
accepted as a charity or the privilege of the few, but demanded
9.
Health development: health development is
defined as the process of continuous progressive improvement of the health
status of a population. The concept of health development is distinct from the
medical care. The health development is based on the fundamental principle that
governments have a responsibility for the health of their people and at the
same time people should have the right as well as the duty, individually and
collectively to participate in the development of their own health.
The
Red Cross society undertakes several programmes and activities for the health
development in all the countries.
10.
Morality: to save a person from any health
problems, whether they are caused by the war or in peace time, morality and
humanity are required. The Red Cross society supplies them along with the
inspiration of volunteering service.
11.
Health team concept: the Red Cross society
gives the training in medical services to the various people, including young
boys and girls. These people from as a batch/health team. Whenever a problem
such as earth quakes, floods, spread of epidemic diseases, etc., the health
teams of RCS run to the spot, and render their services on war foot basis to
the aggrieved persons. The members of Red Cross society stand in the first row,
to provide medical facilities with health team concept, if the people suffer
with natural calamities or with war.
12.
Preventive steps: if any contagious diseases
are spread in a country or state, Red Cross society stands first and serves the
wounded or aggrieved persons. Disease prevention and control is one of the
activities of the Red Cross society to protect entire human beings. For this
purpose it undertakes ‘Epidemiologic investigations’, i.e. identification of to
source of infection one of the factors influencing its spread in the community,
and then it takes the preventive steps.
COMMENDATION: the efforts of
red cross are more effective. They are commended by all the people of the
world. The humanitarian work of the red cross during the first world war was of
such value for all the belligerents that the authors of the covenant of the
League of nations included the following provision in article 25.
The ICRC, which inevitably
is the neutral intermediary most likely to serve, has long experience of
arranging for the satisfaction of humanitarian urges wherever and whenever they
occur. The modest ‘right of initiative’ which entitles it to offer its services
in any painful circumstances seems neither more nor less likely to facilitate
its usefulness on the slopes and in the valleys than when the Geneva
conventions grandly empower it to intervene on the heights. The ICRC’s remarkable
record shows it to be capable of fulfilling its mission at all levels of
conflict, from the formal/straightforward to the irregular/anarchic, but at no
level, not even the highest, can it be sure of a reliable welcome.
In UN Document no. A/7720, a
report by the secretary-general to the general assembly in 1969 concluded that:
“while the international committee of the red cross and organisations play a
most useful role, there would be pressing need for measures to improve and
strengthen the present system of international supervision and assistance to
parties to armed conflicts in their observance of humanitarian norms of
international law. These measures, based on what already exists, should be
regarded as complementary rather than competitive.”
CONCLUSION: same of the international jurisprudents
expressed that ICRC should be brought within the purview of UNO, and as an
organ of it, incorporating in the charter of UNO. The French delegation at the
Geneva conference of 1949 proposed to create a ‘high international committee’
above the ICRC consisting of thirty members, who would be eminent personalities
known for their independence and services to humanity, such as religious
leaders, eminent scientists, and noble Prize winners. This proposal was not
meant to be a criticism of the ICRC, but was put forward in the belief that an
inter-governmental organisation, financed by governments, might have
possibilities of action and financial resources greater than those of the ICRC.
However, these ideas and proposals were not accepted and not adopted in 1949.
The diplomatic agents of the conference did not approve the above proposals,
and they strongly supported to retain the impartial, independent and
non-governmental entity of the ICRC.
RED
CROSS SOCIETY IN INDIA
The Red Cross society of
India was established by the Indian red cross society act, 1920 enacted by the
then Indian legislature. The long title of the 1920 act says triple objectives,
i.e. improvement of health, prevention of disease and mitigation of suffering.
The preamble of the act
explains that the Red Cross society serves the needy people in peace and war
times. In peacetimes, the society provides military hospitals with such
amenities as newspapers, periodicals, musical instruments and other comfort
goods. It renders services consisting distribution of milk, medicines, vitamin
tablets, cod liver oil and hundred other items to the famine stricken people,
and to those sufferers hit by floods, earth-quakes, etc.
The red cross home in
Bangalore of Karnataka state for disabled ex-servicemen is one of the pioneer
institutions of its kind in entire Asia.
The JUNIOR RED CROSS is one
of the active sections of the Red Cross society. It recruits the volunteers and
gives opportunity to lakhs of boys and girls all over Indian to associate with
its activities. It undertakes activities, such as village uplift, first aid,
anti-epidemic works, constructing the idea of international fraternity of
youth, promotion of international friends hipness, co-operation.
Now-a-days, having received
any certificate, such as participating certificate in any activity of Red Cross
society, or first aid certificate, is a prestigious and philanthropic dignity
in the society.
14.C. UNITED NATIONS INTERNATIONAL CHILDREN’S EMERGENCY FUND (UNICEF)
INTRODUCTION: the United
Nations international children’s emergency fund (UNICEF) is one of specialized
agencies of the United Nations. It was established in 1946 by the United
Nations general assembly. All the member-states of the UNO are the members of
UNICEF. An elected body of thirty-states executive board administers the
affairs of the UNICEF. In 1953, the mane UNICEF was changed into ‘U.N.
children’s fund’. However, it was also resolved by the general assembly of the
UNO to retain UNICEF. Its headquarters is situated in new York. In addition,
since the adoption in 1989 of the convention on the rights of the child (CRC)
--- which covers, on the one hand, a wide range of economic and social rights
and, on the other, civil and political rights – UNICEF has played a leading
role in promoting adherence to the convention and providing expert guidance to
the new supervisory committee on the rights of the child.
UNICEF is a specialized
agency of UNO. It is not a non-governmental agency. As the objects of UNICEF
are related with philanthropic and human rights, we must study in academic
interests.
OBJECT: it deals with
rehabilitation of children in war ravaged countries. UNICEF’s objectives are
closely resemble with world health organisation (WHO), and other specialized
agencies of the UNO like UNDP, FAO, UNESCO. in certain occasions, UNICEF and
WHO worked together to solve the problems, i.e. malaria, tuberculosis venereal
diseases, etc. Now, the UNIECF concentrates in the fields such as maternal,
child health, nutrition, environmental sanitation, water supply to rural areas,
health centres, health education, etc., which will be beneficial to children.
Speaking concisely, UNICEF
activities cover programmes assisting in child survival, protection and
development, inventions like immunization, improved infant feeding practise,
child growth monitoring, home based diarrhoeas
management, drinking water, environmental sanitation, birth spacing, education
of girls and income-generating activities for women.
Unlike many other economic
and technical assistance organisation such as the world bank (international
bank for reconstruction and development), UNICEF has concentrated its resources
first on enabling the most desperate and vulnerable sectors of third world
populations to survive, and then on helping them to acquire the skills
necessary for self-maintenance.
ROLE
OF UNICEF
1.
Child health: UNICEF pays greater attention
on the child health. It gives financial support in the production and
distribution of vaccination materials to several diseases, specially those
occur to children. UNICEF assisted India to establish a Penicillin plant in
Pune. Supplying DDT, iodized salt, vitamin tablets, etc. To the children, is
one of its functions.
2.
Child nutrition: The children are also human
being. They are entitled to have right to food. Hence UNICEF pays much
attention on the child nutrition. It gives financial assistance for the
distribution of low-cost protein-rich food mixtures. For this purpose, it has
collaboration with FAO, and began to helping ‘applied nutrition’ programmes
through such channels as community development. For this purpose, UNICEF
contributed huge funds to India, and established child nutrition centres
throughout the country.
3.
Education: UNICEF preaches that the children
have to right to education. Right to education is vested in every child and it
is a part and parcel of human right. For this purpose, UNICEF, with the
collaboration of UNESCO, provides the study materials, teaching techniques,
library books, audio-visual aids for the children especially belonging to the
third world.
4.
Family and child welfare: to develop the
personality and health of children, first it is necessary to educate the
parents. UNICEF concentrates on this issue, and provides parent education,
day-care centres, child welfare and youth agencies, women’s clubs, etc.
5.
Country health programming: the UNICEF aims
to eradicate specific diseases and to protect the young children of entire
world, especially the children of the third world. It has been paying high
volumes attention on the concept of ‘whole child’. The concept of ‘whole child’
means, the assistance should not be to health and nutrition, but it should
extend to develop the personality of the children, which may in turn evidence
in developing the countries. Because to-day’s child is to marrow’s citizen and
would become integral part of the fully developed society.
6.
GOBI: UNICEF has undertaken a campaign known
as ‘child health revolution’ and encourages four strategies, which is known in short
from GOBI, which is as follows:
G =
growth charts to better monitor child development;
O =
oral rehydration to treat all mild and moderate dehydration;
B =
breast feeding; and
I =
immunization against measles, diphtheria, polio, pertussis, tetanus and
tuberculosis.
14.D. THE FOOD AND AGRICULTURE
ORGANIZATION (FAO)
INTRODUCTION: the food and
agriculture organization (FAO) was established in 1945. Its headquarters is
situated in Rome. It was the first united nations organisation specialized
agency created to look after several areas of world co-operation. FAO is not a
non-governmental agency of UNO. But we have to study it as its objects are
connected with philanthropic and human rights.
OBJECTIVES: FAO has the
following objectives,---
(1)
To help nations raise living standards;
(2)
To improve nutrition of the people of all
countries;
(3)
To increase the efficiency of farming,
forestry and fisheries;
(4)
To better the condition of rural people and ,
through all these means, to widen the opportunity of all people for productive
work.
ROLE OF FAO
Besides the objectives
mentioned above, the FAO has the primary concern to improve and increase the
production of food sufficient to meet the requirements of the growing
population. It aspires that the people throughout the world should consume
sufficient food and intake calories. It also aspires that there should not be
any starvation and feminine conditions any where in the world. It organised a
world freedom from Hunger campaign (FFHC) in 1960. FAO jointly works and
co-operates with WHO in certain committees.
CO-OPERATION FOR AMERICAN
RELIEF EVERYWHERE (CARE)
INTRODUCTION: the co-operative for American relief every
where (CARE) is a non-sectarian and donors to people in war-divested Europe
affected by the second world war. After 1946, the programme of CARE were
extended to other countries and to other kinds of aid besides food. It helps
mid-day meals to children studying in primary schools. It has become the
largest school feeding programme in the world. Now its aid extends to medicine,
literacy, vocational training, agriculture, etc. It provides mobile medical
vans, x-ray machines, diagnostic, eye glasses, books, medicines, vitamin
tablets, etc. To poor people.
14.F THE COLOMBO PALN
INTRODUCTION: actually it is
not an organisation. In January, 1950, when the common wealth foreign ministers
met in Colombo, a programme was prepared for co-operative and economic
development south and south east Asia.
As the plan was drafted in Colombo, it was named as ‘the Colombo plan’.
There are 20 developing countries within the region, i.e. south and south east
Asia, and six non-regional developed countries , i.e. Australia, Canada, Japan,
new Zealand, UK and USA.
Objects: the primary object
of the Colombo plan is to assist the industrial and agricultural development.
However, later its objectives have been extended including the health
promotion, training to local personnel, etc. The Colombo plan also aims to
improve the living standards of the people in the area.
14.G. ROCKEFELLER
FOUNDATION
INTRODUCTION: Mr. John D.
Rockefeller, a rich person of America, founded this philanthropic organization
in 1913.
OBJECTS: its object is to
promote the well-being of mankind throughout the world. In the beginning, it
concentrated mainly in public health and medical education. Later on, its
sphere of work has been extended to advancement of life sciences, the social
sciences, the humanities, agricultural sciences, etc.
FUNCTIONS: it extended monetary assistance to developing
countries. In 1920, it began to function in India. The first scheme of the
foundation in India was undertaken in the madras state to control hookworm
disease in madras area. It established the all India institute of Hygiene and
public health in Calcutta.
The foundation’s programme
includes the training of competent teachers and research works, training abroad
of candidates from India through fellowships and travel grants, the sponsoring
of visits of a large number of medical specialists from USA, providing
grants-in-aid to selected institutions, etc.
14.H. FORD FOUNATION
ESTABLISHMENT: an American
rich man, the industrialist ford established ford foundation in America. The
objectives of ford foundation are similar to those of Rockefeller foundation.
Particularly it concentrates on rural development and health services in the
developing countries. It has established several centres in India, viz.
Orientation training centres at Singur, Poonamalle and Najafgarh;
research-cum-action projects, Pilot project in rural health services,
Gandhigram (Tamilandu), national institute of health administration and
education at Delhi; Calcutta water supply and drainage scheme, family planning
programme, etc.
14.I. SCOUTS AND GUIDES
ESTABLISHMENT: it is a world
wide organisation, founded by Baden-Powell in the year 1907. Its headquarters
is situated in Geneva of Switzerland.
OBJECTS: the slogan of
scouts and Guides is ‘Be Prepared’. The youth is trained in outdoor skills
character, loyalty to god and country, service to the needy people and physical
and mental fitness.
15. NATIONAL PERSPECTIVES/THE PROTECTION OF
HUMAN RIGHTS ACT, 1993
15. A SALIENT FEATURES OF
THE HUMAN RIGHTS ACT, 1933
SCOPE: India is a party to
‘the international covenant on civil and political rights and the international
covenant on economic, social and cultural rights’. It was also a party of the
universal declaration of human rights, 1948. It inspired with the aims and
objectives of all those conventions, declarations of human rights. As a result,
the Indian Parliament enacted ‘the protection of human rights act, 1993’ (act
no. 10of 1994). Though the president of India signed on it on 8th
January, 1994, the act came into force with effect from 28th day of
September, 1993.
OBJECT: the Preamble of the
act says the object of the act as follows: “an act to provide for the
constitution of a national human rights commission, state human rights
commission in states and human rights court for better protection of human
rights and for matters connected there with or incidental there to”.
STATMENT OF OBJECTS AND
REASONS:
1.
the bill introduced in the Parliament stated
as follows: “India is a party to the international covenant on civil and
political rights and the international covenant on economic, social and
cultural rights, adopted by the aforesaid covenants stand substantially
protected by the constitution.”
2.
However, there has been growing concern in
the country and abroad issues relating to human rights. Having regard to this,
changing social realities and the emerging trends in the nature of crime and
violence, government has been reviewing the existing laws, procedures and
system of administration of justice; with a view bringing about greater
accountability and transparency in them, and devising efficient and effective
methods of dealing with the situation.
3.
Wide-ranging discussions were held at various
for a such as the chief ministers conference on human rights, seminars
organised in various parts of the country and meetings with leaders of various
political parties. Taking into account the views expressed in these
discussions, the present bill is brought before Parliament.”
SCHEME
OF THE ACT:
Chapter-lll of the protection f human rights
act, 1993 explains about ‘functions and powers of the commission’. Chapter-lll
contains sections 12 to 16.
Chapter-iv explains about
‘Procedure’. This chapter contains sections 17 to 20.
CONSTITUTION, APPOINTMENT,
REMOVAL, TERM, etc.
OF THE NATIONAL HUMAN RIGHTS COMMISSION
Constitution of national
human rights commission: section 3 of the protection of human rights act, 1993
explains about constitution of national human rights commission.
The central government shall
constitute a body to be known as the national human rights commission to
exercise the powers conferred upon, and to perform the functions assigned to it
under this act.
The commission shall
consist,---
(a)
A chairperson who has been a chief justice of
the supreme court;
(b)
One member who is, or has been, a Judge of
the supreme court;
(c)
One member who is, or has been the justice of
a high court;
(d)
Two members to be appointed from amongst
persons having knowledge of, or practical experience in, matters relating to
human rights.
The chairpersons of the
national commission for minorities, the national commission for the scheduled
castes and scheduled tribes and the national commission for women shall be
deemed to be members of the commission for the discharge of functions specified
in clauses (b) to (i) of section 12.
There shall be a
secretary-general who shall be the chief executive officer of the commission and
shall exercise such powers and discharge such functions of the commission as it
may delegate to him.
The headquarters of the
commission shall be at Delhi and the commission may, with the previous approval
of the central government, establish offices at other places in India.
Appointment of chairperson
and other members: section 4 says that the chairperson and other members shall
be appointed by the president by warrant under his hand and seal after
receiving recommendation from the committee under the chairperson of the prime
minister. There shall be a committee, consisting the prime minister, the
speaker of the house of people, the minister-in-charge of the ministry of home
affairs in the government of India, the leader of the opposition in the house of
the people, the leader of the opposition in the council of states, the deputy
chairman of the council of states. This committee makes recommendations for the
appointment of the chairperson.
If sitting judge of the
supreme court or sitting chief justice of a high court is appointed, such
appointment shall be made only after consultation with the chief justice of
India.
Removal of a member of the
commission: section 5 explains the details of procedure for the removal of a
member of the commission. Subject to the provisions of sub-section (2), the
chairperson or any other member of the commission shall only be removed from
his office by order of the president on the ground of proved misbehaviour or
incapacity after the supreme court, on reference being made to it by the
president, has, on inquiry held in accordance with the procedure prescribed in
the behalf by the supreme curt, reported that the chairperson or such other
member, as the case may be, ought on any such ground to be removed.
Not with standing anything
in sub-section (1), the president may by order remove from office the
chairperson or any other ember if the chairperson or such other member, as the
case may be,---
(a)
Is adjudged an insolvent; or
(b)
Engages during his term of office in any paid
employment outside the duties of his office; or
(c)
Is unfit to continue 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 oral turpitude.
Term of office of members: a
person appointed as chairperson shall hold office for a term of five years from
the date on which he enters upon his office or until e attains the age of
seventy years, which ever is earlier. A person appointed as a member shall hold
office for a term of five years from the date on which he enters upon his
office and shall be eligible for re-appointment for another term of five years. No member shall hold office
after he has attained age of seventy years. On ceasing to hold office, a
chairperson or a member shall be ineligible for further employment under the
government of India or under the government of any state.
Member to act as chairperson
or to discharge his functions in certain circumstances: in the event of the
occurrence of any vacancy in the office of the chairperson by reason of his
death, resignation or otherwise, the president may, by notification, authorise
one of the members to act as the chairperson until the appointment of a new
chairperson to fill such vacancy. When the chairperson is unable to discharge
his functions owing to absence on leave or otherwise, such one of the members
as the president may, by notification, authorise in this behalf, shall
discharge the function of the chairperson resumes his duties.
Terms and conditions of
service of members: the salaries and allowances payable to, and other terms and
conditions of service of , the members shall be such as may be prescribed.
Provided that neither the salary and allowances nor the other terms and
conditions of service of a member shall be varied to his disadvantage after his
appointment.
Vacancies, etc., not to
invalidate the proceedings of the commission: no act or proceedings of the
commission shall be questioned or shall be invalidate merely on the ground of
existence of any vacancy or defect in the constitution of the commission.
Procedure to be regulated by
the commission: the commission shall meet at such time and place as the
chairperson may think fit. The commission shall regulate its own procedure. All
orders and decisions of the commission shall be authenticated by the
secretary-general or any other officers of the commission duly authorised by
the chairperson in this behalf.
Officers and other staff of
the commission: the central government shall make available to the
commission,---
(a)
An officer of the rank of secretary to the
government of Indian who shall be the secretary-general of the commission; and
(b)
Such police and investigative staff under an
officer not below the rank of a director general of police and such other
officers and staff as may be necessary for the efficient performance of the
functions of the commission.
Subject
to such rules as may be made by the central government in this behalf, the
commission may appoint such other administrative, technical and scientific
staff as it may consider necessary.
FUNCTIONS AND POWERS OF THE COMMISSION
FUNCTIONS:
section 12 of the act, 1993 explains the functions of the commission. The
commission shall perform all or any of the following functions, namely, ---
(a)
Inquire, suo motu or on a petition presented
to it by a victim or any person on his behalf, into complaint of, ---
(1) Violation
of human rights or abetment there of; or
(2) Negligence
in the prevention of such violation, by a public servant;
(b)
Intervene in any proceeding involving any
allegation of violation of human rights pending before a court with the
approval of such court:
(c)
Visit, under intimation to 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;
(d)
Review the safeguards provided by or under
the constitution or any law for the time being in force for the protection of
human rights and recommend measures for their effective implementation;
(e)
Review the factors, including acts to
terrorism, that inhibit the enjoyment of human rights and recommend appropriate
remedial measures;
(f)
Study treaties and other international
instruments on human rights and make recommendations for their effective
implementation;
(g)
Undertake and promote research in the field
of human rights;
(h)
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;
(i)
Encourage
the efforts of non-governmental organisations and institutions working in the
field of human rights;
(j)
Such other functions as it may consider
necessary for the promotion of human rights.
POWERS
RELATING TO INQUIRIES: section 13 narrates the powers which can be exercised by
the commission. The commission shall, while inquiring into complaints under
this act, have all the powers of a civil court trying a suit under the code of
civil procedure, 1908, and in particular in respect of the following matters, namely:---
(a)
Summoning and enforcing the attendance of
witnesses and examining them on oath;
(b)
Discovery and production of any document;
(c)
Receiving evidence on affidavits;
(d)
Requisitioning any public record or copy
thereof from any court or office;
(e)
Issuing commissions for the examination of
witnesses or documents;
(f)
Any other matter which may be prescribed.
The
commission shall have power to require any person, subject to any privilege
which may be claimed by that person under any law for the time being in force,
to furnish information on such points or matters as, in the opinion of the
commission, may be useful for, or relevant to, the subject matter of the
inquiry and any person so required shall be deemed to be legally bound to
furnish such information within the mean in of section 176 and section 177 of
the Indian penal code.
The
commission or any other officer, not below the rank of a Gazetted officer,
specially authorised in this behalf by the commission may enter any building or
place where the commission has reason to believe that any document relating to
the subject matter of the inquiry may be found, and may seize any such document
or take extracts r copies there from subject to the provisions of section 100
of the code of criminal procedure, 1973, in so far as it may be applicable.
The
commission shall be deemed to be a civil court and when any offence as it
described in section 175, section 178, section 179, section 228 of the Indian
penal code is committed in the view or presence of the commission, the commission
may, after recoding the facts constituting the offence and the statement of the
accused as provided for in the code of criminal procedure, 1973, forward the
case to a magistrate having jurisdiction to try same and the magistrate to whom
any been forward to him under section 346 of code of criminal procedure, 1973.
Very
proceeding before the commission is deemed as a judicial proceeding within the
meaning of sections 193 and 228, and for the purposes of section 196 of the
Indian penal code, and the commission shall be deemed to be a civil court for
all the purposes of section 195 and the chapter-xxvi of the code of criminal
procedure, 1973.
Matters
not subject to jurisdiction of the commission: section 36 lays down that the
commission duly constituted under any for the being in force.
The
commission or the state commission shall not inquire into any matter after the
expiry of one year from the date on which the act constituting violation of
human rights is alleged to have been committed.
INVESTIGATION:
section 14 of act, 1993 explains the provisions about ‘investigation’
undertaken by the commission. The commission may, for the purpose of conducting
any investigation pertaining to the inquiry, utilise the service of any officer
or investigation agency of the central government or the case may be.
For
the purpose of investigating into any matter pertaining to the inquiry, any
officer or agency whose services are utilised under sub-section (1) may,
subject to the direction and control of the commission,---
(a)
Summon and enforce the attendance of any
person and examine;
(b)
Require the discovery and production of any
document; and
(c)
Requisition any public record or copy thereof
from any office.
The
officer or agency whose services are utilised shall investigate into any matter
pertaining to the inquiry and submit a report there on to the commission within
such period as may be specified by the commission i this behalf.
Statement
made by persons to the commission: section 15 says that no statement made by a
person in the course of giving evidence before the commission shall subject him
to, or be used against him in, any civil or criminal proceeding except a
persecution for giving false evidence by such statement. Provided that the
statement,
(a)
Is made in reply to the question which he is
required by the commission to answer; or
(b)
Is relevant to the subject matter of the
inquiry.
Persons
likely to be prejudicially affected to be heard; section 16 says that if, at
stage of the inquiry, the commission,---
(a)
Considers it necessary to inquire into the
conduct of any person; or
(b)
Is of the opinion that the reputation of any
person is likely to be prejudicially affected by the inquiry it shall give to
the person a reasonable opportunity of being heard in the inquiry, and to
produce evidence in his defence.
Provided
that nothing in this section shall apply where the credit of a witness is being
impeached.
INQUIRY
INTO COMPLAINTS: section 17 lays down that the commission while inquiring into
the complaints of violations of human rights may,---
(1)
Call for information or report from the
central government or any state government or any other authority or
organisation subordinate there to within such time as may be specified by
it: provided that,---
(a) If
the information or report is not receive within stipulated by the commission,
it may proceed to inquire into the complaint on its own;
(b) If,
on receipt of information or report, the commission is satisfied either that no
further inquiry is required or that the required action has been initiated or taken
by the concerned government or authority, it may not proceed with the complaint
and inform the complainant accordingly;
(2)
Without prejudice to anything contained in
clause (i), if it considers necessary, having regard to the nature of the
complaint, initiate an inquiry.
Steps
after inquiry: section 18 provides that the commission may take any of the
following steps upon the completion of an inquiry held under this etc, namely:-
(1) Where
the inquiry discloses, the commission of violation of human rights or negligence
in the prevention of violation of human rights by a public servant, it may
recommend to the concerned government or authority the initiation of
proceedings for prosecution or such other action as the commission any deem fit
against the concerned person or persons;
(2) Approach
the supreme court or the high court concerned for such directions orders or
writs as that court may deem necessary;
(3) Recommend
to 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) Subject
to the provisions of clause (5) provide a copy of the inquiry report to the
petitioner or his representative;
(5) 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 moth, or further time as
the commission may allow, forward its comments on the report, including the
action taken or proposed to be taken there on, to the commission;
(6) The
commission shall publish its inquiry report together with the comments of the
concerned government or authority, if any, and the action taken or proposed to
be taken by the concerned government or authority on the recommendation.
PROCEDURE
WITH RESPECT TO ARMED FORCES: section 19 says the procedure with respect to
armed force. It says not with standing anything contained in this act, while
dealing with complaints of violation of human rights by members of the armed
forces, the commission shall adopt the following procedure, namely;-
(a) It
may, either on its own motion or on receipt of a petition, seek a report from
the central government;
(b) After
the receipt of the report, it may, either not proceed with the complaint or, as
the case may be, make its recommendations to that government.
The
central government shall inform the commission of the action taken on the
recommendations within three months or such further time as the commission may
allow.
The
commission shall public its report together with its recommendations made to
the central government and the action taken by the government on such
recommendations.
The
commission shall provide a copy of the report published to the petitioner or
his representative.
ANNUAL
AND SPECIAL REPORTS OF THE COMMISSION: section 20 says that the commission
shall submit an annual report to the central government and to the state
government concerned and may at time submit special reports on any matter
which, in its opinion, is of such urgency or importance that it should not be
deferred till submission of the annual report.
The
central government and the state government, as the case may be, shall cause
the annual and special reports of the commission to be laid before each house of
parliament or the state legislature respectively, as the case may be, along
with a memorandum of action taken or proposed to be taken on the
recommendations of the commission and the reasons for non-acceptance of the
recommendations, if any.
NATIONAL
HUMAN COMMISSION VS. STATE OF ARUNACHAL PRADESH AND ANOTHER (1996 (1) SCC 742
Brief
facts: the national human rights commissioner (NHRC) field a writ petition
under article 32 before the supreme court bringing the miser abilities of
65,000 chakma/Hajong tribals.
The
Chakmas migrated from east Pakistan (now Bangladesh) in 1964. They first
settled in the state of Assam, and then shifted to areas in the state of
Arunachal Pradesh. Two generations have been passed. The all Arunachal Pradesh
students union (AAPSU) gave out threats to forcibly drive them out to the
neighbouring states which in turn were unwilling to accept them. This state
government of Arunachal Pradesh also has been giving support to AAPSU in
torturing, threatening and forcing the chakmas to vacate that state. The NHRC
brought all the miser abilities of chakmas to the notice of the supreme court.
JUDGMENT:
the supreme court responded the argument of NHRC, and gave judgment favour
NHRC, and directing the union and the state governments to provides security
and other amenities to the chakmas.
PRINCIPLES:
some of the observations of the supreme court made in this case are as follows:
(1) Our
country is government b rule of law. The state is bound to protect the life and
liberty of every human being, be he a citizen or otherwise, and it cannot
permit any body or group of persons, e.g., the AAPSU, to threaten the chakmas
to leave the state, failing which they would be forced to do so. No state
government worth the name can tolerate such threats by one group of persons to
another group of persons; it is duty-bound to protect the threatened group from
such assaults and if it fails to do so, it will fail to perform its
constitutional as well as statutory obligations. Those giving such threats
would be liable to be dealt with in accordance with law. The state government
must act impartially and carry out its legal obligations to safeguard the life,
health and well-being of chakmas residing in the state without being inhibited
by local politics.
(2) Therefore,
first respondent, the state of Arunachal Pradesh, shall ensure that the life
and personal liberty of each and every chakmas residing within the state shall
be protected and any attempt to forcibly evict or drive them out of the state
by organised groups, such as the AAPSU, shall be repelled, if necessary by
requisitioning the service of paramilitary or police force, and if additional
forces are considered necessary to carry out this direction, the first
respondent will request the second respondent, the union of India, to provide
such additional force, and the second respondent shall provide such additional
force as is necessary to protect the lives and liberty of the chakmas. Except
in accordance with law, the chakmas shall not be evicted from their homes and
shall not be denied domestic life and comfort there in. The quit notices and
ultimatums issued by the AAPSU and any other group which tantamount to threats
to the life and liberty of each and every chakmas should be dealt with by the
first respondent in accordance with law.
(3) Besides,
by refusing to forward their applications, the chakmas are denied rights,
constitutional and statutory, to be considered for being registered as citizens
of India. If a person satisfies the requirements of section 5 of the
citizenship act, he/she can be registered as a citizen of India. Section 5 can
be invoked by persons who are not citizens of India but are seeking citizenship
by registration.
15.C. CONSTITUTION, FUNCTIONS AND POWERS OF THE STATE
HUMAN RIGHTS COMISSIONS UNDER THE HUMAN RIGHTS ACT, 1993
SCOPE: chapter-v of the protection of human rights
act, 1993 explains the provisions about “state human rights commissions”. This
chapter contains sections 21 to 29.
CONSTITUTION OF STATE HUMAN
RIGHTS COMMISSION: a state government may constitute a body to be known as the
................. (name of the state) human rights commission to exercise the
powers conferred upon, and to perform the functions assigned to a state
commission under this chapter.
The state commission shall
consist of,----
(a)
A chairperson who has been a chief justice of
a high court;
(b)
One chairperson who is, or has been, a judge
of a high court;
(c)
One
member who is, or has been, a district judge in that state;
(d)
Two members to be appointed from amongst
persons having knowledge of, or practical experience in, matters relating to
human rights.
There
shall be a secretary who shall be the chief executive officer of the state
commission and shall exercise such powers and discharge such functions of the
state commission as it may delegate to him.
The
headquarters of the state commission shall be at such place as the state
government may, by notification, specify.
A
state commission may inquire into violation of human rights only in respect of
matters relatable to any of the entries enumerated in list lll in the seventh
schedule to the constitution.
Provided
that if any such matter is already being inquired into by the commission or any
other commission duly constituted under any law for the time being in force,
the state commission shall not inquire into the said matter.
AAPOINTMENT
OF CHAIRPERSON AND OTHER MEMBERS OF STATE COMMISSION: section 22 says that the
chairperson and other members shall be appointed by the governor by warrant
under his hand and seal, on the recommendations of a committee under the
chairmanship of the chief minister. Such committee consists the chief minister,
the speaker of the legislative assembly, the minister in-charge of the
department of home in that state, the leader of the opposition in the
legislative assembly.
No
sitting judge of a high court or a sitting district judge shall be appointed
except after consultation with the chief justice of the high court of the
concerned state.
No
appointment of a chairperson or a member of the state commission shall be
invalid merely by reason of any vacancy in the committee.
REMOVAL
OF A MEMBER OF THE STATE COMMISSION: section 23 explains the provisions about
removal of a member of the state commission.
The
chairperson or any other member of the state commission shall only be removed
from his office by order of the president. The grounds and procedure for
removal are similar to the removal of a member of the national commission, as
laid down in section5.
TERM OF OFFICE OF MEMBERS OF THE
STATE COMMISSION: section 24 says that a person appointed as chairperson shall
hold office foe a term of five years from the date on which he enters upon his
office or until he attains the age of seventy years whichever is earlier. A
person appointed as a member shall hold office for a term of five years from
the date on which he enters upon his office and shall be eligible for
re-appointment for another term of five years. No member shall hold office
after he has attained the age of seventy years. On ceasing to hold office, a
chairperson or a member shall be ineligible for further employment under the
government of a state or under the government of India.
Member to act as chairperson
or to discharge his functions in certain circumstances: in the event of the
occurrence of any vacancy in the office chairperson by reason of his death,
resignation or otherwise, the government, by notification, authorise one of the
members to act as the chairpersons until the appointment of a new chairperson
to fill such vacancy. when the chairperson is unable to discharge his functions
owing to absence on leave or otherwise, such one of the members as the governor
may by notification, authorise in this behalf, shall discharge the functions of
the chairperson until the date on which the chairperson resumes his duties.
Terms and conditions of
service of members of the state commission: the salaries and allowances payable
to, and other terms and conditions of service of, the members shall be such as
may be prescribed by the state government. Neither the salaries and allowances
nor the other terms and conditions of service of a member shall be varied to
his disadvantage after his appointment.
Officers and other staff of
the state commission: the state government shall make available to the
commission,---
(a)
An officer not below the rank of a secretary
to the state government who shall be the secretary of the state commission; and
(b)
Such police and investigative staff under an
officer not below rank of an inspector general of police and such other
officers and staff as may be necessary for the efficient performance of the
functions of the state commission.
Subject
to such rules as may be made by the state government in this behalf, the state
commission may appoint such other administrative, technical and scientific
staff as it may consider necessary.
Annual
and special reports of state commission: the state commission shall submit an
annual report to the state government, and may at any time submit special
reports on any matter which, in its opinion, is of such urgency or importance
that it should not be deferred till submission of the annual report.
The
state government shall cause the annual and special reports of the state
commission to be laid before each house of state legislature where it consists
of two houses, or where such legislature consists of one house, before that
house along with a memorandum of action taken or proposed to be taken on the
recommendations of the state commission and the reasons for non acceptance of
the recommendations, if any.
Application
of certain provisions relating to national human rights commission to state
commission: section 29 lays down that the provision of sections 9, 10, 12 to 18
shall apply to a state commission and shall have effect.
15.D. HUMAN RIGHTS COURTS UNDER THE HUMAN
RIGHTS ACT, 1993
SCOPE:
chapter-vi of the protection of human rights act, 1993 explains the provisions
about “human rights courts”. This chapter contains only two sections, viz. 30
and 31.
HUMAN
RIGHTS COURTS: section 30 lays down that for the purpose of providing speedy
trial of offences arising out of violation of human rights, the state government
may, with the concurrence of the chief justice of the high court, by
notification, specify for each district a court of sessions to be human rights
court to try the said offences:
Provided
that nothing in this section shall apply, if,---
(a)
A court of session is already specified as a
special court, or
(b)
A special court is already constituted, for
such offences under any other law for the time being in force.
SPECIAL
PUBLIC PROSECUTOR: for every human
rights court, the state government shall, by notification, specify a public
prosecutor or appoint an advocate who has been in practice as an advocate for
not less than seven years, as a special public prosecutor for the purpose of
conducting cases in that court.
16. INDIAN CONSTITUTION vs. HUMAN RIGHTS
SCOPE: as provided in the cabinet mission plan, “the
constituent assembly” came into existence in November, 1946. Its members were
elected by the provincial assembly in direct election for entire undivided
India. Out of 296 seats congress won 211 seats, and Muslim league won 73 seats.
The important members of the assembly were Jawaharlal Nehru, Rajendra Prasad,
Sardar patel, Manulana Azad, Dr. Ambedkar, etc. The first meeting was held on
9-12-1946. It was boycotted by Muslim league. The independence of India act
1947 was enacted by the British government, which caused the separation of
Indian and Pakistan. The constituent assembly was also divided. On 29-8-1947, a
“drafting committee” consisting of seven members, was set up under the
chairmanship of DR. Ambedkar to draft the constitution of India. The
constituent assembly held 11 sessions, and took 2 years 11 months and 18 days
for framing the constitution. The new constitution of India was adopted on 26th
November 1949, and signed by the then president Dr. Rajendra Prasad, and it
came into force with effect from 26th January, 1950.
Bhimrao
Ramjee Ambedkar was one of the great jurists, lawyers and political leaders of
modern India. He was one of the prime architects of the Indian constitution. He
experienced several difficulties, agonies, anguishes, frustrations and
humiliations in the Indian society, being he himself hailed from the poor and
untouchable family. He was an outspoken militant champion of the aspirations
and claims to equality of the so-called untouchables. He was a social prophet
of the untouchables. He denounced the monstrous iniquities and outrageous
calumnies prevailed in Hinduism. The constitution of India reflects his
ideology. He was the first Indian to recognise human rights.
The
universal declaration on human rights was declared in 1948. Prior to its
declaration, Dr. Ambedkar imp leaded all necessary human rights in the
constitution.
PREAMBLE:
the objectives specified in the preamble contain the basic structure of our
constitution the phrase “we, the people of India....” denotes that the
constitution is dedicated to the people.
1.
The preamble represents the aspirations of
the people of India.
2.
We, the people: the phrase “we, the people”
has been taken from the constitution of U.S.A. this means, the constitution had
been achieved by the people of India with great efforts. It was not derived by
any external force. Here the people of India means they were represented by
their elected members of “constituent assembly”.
3.
Part of the basic structure: the objectives
mentioned in the preamble are a part of the basic structure of the
constitution.
4.
The principle “democracy of the people, by
the people and for the people” can be seen in the preamble.
5.
Sovereign: until 14-8-1847, the crown of
Britain was the real ruler of this country. We got independence on 15-8-1947.
The constitution of India came into force with effect from 26-1-1950. Until
that the crown remained as symbolic head of India. Since that day, the crown
ceased to have legal and constitutional authority. India declared by the
preamble itself as “sovereign”. Of course, India is a member of “commonwealth”.
But it does not mean that India loosed its sovereignty and crown of Britain is
our king. Ammo wealth is not ruling body on the nations of it. It is simply a
friendly association of the nations. They are not subordinates to the British
crown, and particularly India adheres to that association without acknowledging
allegiance to the crown.
6.
Socialist: this is a new term inserted in the
preamble by the 42nd Amendment act, 1976. In the case D.S. Nakara
vs. Union of India (1983), the supreme court opined that the word “socialist”
and “social” are the result of Marxism and Ganthism, and particularly leaning
heavily towards Gandhian socialism. The Jurisprudents opine that it is not a
communist socialism. It is particularly formulated according to our nation’s
needs to fulfil the aspiration of all Indians.
7.
Democratic: ours is the democratic country. Every
citizen of India, who is aged 18 years and above, is entitled to vote,
irrespective of his caste, religion, race, sex, economic position. Fro village
level to parliament level, there will be elections meant for 5 years. While
democracy failed in our surrounding countries, it is very much successful in
our country.
8.
Secular: secularism is the basic structure of
our constitution. Our government respects all religions. It does not uplift or
degrade any particular religion. The state has no religion itself. While our
surrounding countries have adopted particular religions, India has not adopted
any religion for it. For example: Pakistan (Islam); Bangladesh (Islam); Nepal
(Hinduism); Sri Lanka (Buddism); Borma (Buddism), etc. The seculatarism has not
been defined in the constitution. Article 25 to 28 give the freedom of religion
to every citizen. The word “secular” has been inserted in preamble by the 42nd
Amendment act, 1976.
9.
Justice: the preamble intends that the
justice must be given to every citizen irrespective of poverty, richness,
caste, religion, sex, power, political power. There are several examples that
our country adheres this principle very strongly. The supreme court’s decision
in the case Indira Gandhi vs. Raj Narain 1975 shows that before the law prime
minister and ordinary citizen are equal. Similarly, P.V. Narasimha Rao is being
prosecuted for the allegations of bribery, forgery, etc. It shows the
independent judiciary in India.
10.
Liberty of thought, expression: article 19
(1) gives the fundamental right to every citizen of freedom of speech and
thought, expression. Freedom of the press is the pillar to democratic country.
Freedom of speech and thought are fundamental rights granted by the
constitution to every citizen.
11.
Liberty of status and of opportunity: article
25 to 28 give the freedom of religion to every citizen. The government does not
oppress liberty of belief, faith and worship of the citizen.
12.
Equality of status and of opportunity: there
are fundamental rights from articles 12 to 35. More particularly, articles 14,
15, 16, 17 and 18 provide “right to equality” to every citizen.
13.
Fraternity – assuring the dignity of the
individual: democracy is based upon the principle of brotherhood, irrespective
of the race, religion, language, culture, sex. This noble idea is inserted in
the article 1 of “declaration of human rights” of united nations organisation.
The same spirit and the words have been incorporated in preamble by the above
phrase. Directive principles stated in part-iv from article 36 to 51 also say
the same thing. Particularly articles from 14 to 18 teach us live, with equality,
brotherhood. India was transferred from the state of “police state” to “welfare
state”. The preamble directs the constitution to provide all the provisions to
safeguard the dignity of the individual, so that the nation prosper and stands
highest level in the world.
14.
Unity and integrity of the nation: the phrase
has been inserted by the constitution 42nd amendment act, 1976.
Every citizen of India has been given fundamental rights. But at the same time,
he should respect the nation. He should do efforts for the unity and integrity
of the nation. Article 51-A has been inserted by 42nd amendment act.
Article 51-A confers certain fundamental duties to every citizen to uphold the
sovereignty, unity and integrity of the nation, to maintain secularism, common
brotherhood amongst all the people of India.
FUNDAMENTAL RIGHTS
The
framers and founders of the constitution of India forethought about ‘human
rights’. They were very cautious in incorporating the human rights in the
constitution, for this purpose, they named “fundamental rights” in place of
human rights. The fundamental rights in our constitution are ‘magna carats’ for
us. These are the basic features of the constitution. These are the foundation
stones for democracy. The same rights are also declared as ‘human rights’ in
the declaration of human rights 1948 and other covenants, conventions and
conferences, which have perused in the previous topic.
Article
12 to 35 of the part-iii of the Indian constitution confers various fundamental
rights. These fundamental rights are nothing but the human rights. We have
already studied these fundamental rights in “constitutional law” in LL.B. first
year.
IMPORTANT
POINTS:
A.
Definition of state: for the purpose of
protecting the fundamental rights, ‘the state’ is defined in article 12. The
terms “other authorities” in article 12 includes a large variety of scope of
inclusion of the state liberty. The definition of state is not confined to a government
department, and the legislature, but extend to any action, administrative
(where statutory or non-statutory), judicial or quasi-judicial, which can be
brought within the fold of ‘state action’ being action which violets a
fundamental right.
B.
Laws inconsistent with or in derogation of
the fundamental rights: article 13 directs that the state shall not make any
law which takes away or abridges the rights conferred by part-iii, and any law
made in contravention of this clause shall, to the extent of the contravention,
be void.
C.
Rights to equality: article 14 to 18 confer
the rights to equality. These rights include “right to equality before law”
(article 14), prohibition of discrimination (article 15), equality of
opportunity (reservations) (article 16), removal of un touch ability (article
17), abolition of titles (article 18).
D.
Rights to freedom: article 19 to 22 confer
the rights to freedom. These rights include “rights to freedom of speech, to
assemble peaceably and without arms; to from associations or unions; to move
freely throughout the territory of India; to reside and settle in any part of
the territory of India; and to practise any profession, or to carry on any
occupation, trade or business, etc. (article 19); protection against ex post
facto laws, double jeopardy, protection against self incrimination (article
20); protection of life and personal liberty (article 21); protection against
arrest and detention (article 22).”
E.
Rights against exploitation: articles 23 and
24 confer the rights against exploitation. Article 23 prohibits bonded labour
system and article 24 prohibits child labour.
F.
Right to freedom of religion: articles 25 to
28 confer the rights to freedom of religion.
G.
Cultural and educational rights: articles 29
and 30 confer the rights to cultural and educational rights to minorities.
H.
Right to constitutional remedies: articles 32
to 35 provide the constitutional remedies available to the Indian citizen, if
any of their fundamental rights are violated.
DIRECTIVE
PRINCIPLES OF STATE POLICY
SCOPE:
part-iii of the constitution deals with the fundamental rights. Part-iii
contains articles from 12 to 35. Part-iv deals with directive principles of
state policy. Part-iv contains articles from 36 to 51. The framers of the
constitution borrowed these principles from the Irish constitution.
Up
to 19th century ending, almost all the countries in the globe
adopted laissez faire i.e. the states concentrated on the law and order and defence
of the countries. They did not pay any attention on the welfare of the people.
Since the beginning of 20th century, the outlook of the political
leaders, jurists and jurisprudents has changed from “police state” to “welfare
state”. The result is the strengthening of democracy.
The
directive principles are part and parcel of the democracy. Particularly they
are devoted to promote the prosperity and well-being of the people.
The
directive principles cannot be compared with fundamental rights. Both have different
concepts. The latter have political concept and protect the citizens from
excess political interference and restraints. The former give oxygen to the
ruling parties to implement the welfare programmes which are beneficial to the
people. The latter can be enforced in the courts of law. The former cannot be
enforced in the courts of law. However, they influence the voting pattern. To
gain the popularity and votes, the political parties must implement the schemes
enunciated in the directive principles. Else, the people aggrieved by the bad
policies, would turn the ruling party into opposition groups. While the
fundamental rights are enforced by the courts, the directive principles are
enforced by the peoples sovereignty. The political parties are responsible and
accountable to the people for implanting the directive principles.
There
is a near relationship between preamble and directive principles. The preamble
says that India is to be a sovereign socialist secular and democratic republic.
This aspiration is fulfilled by the directive principles, not by the
fundamental rights.
OBJECT:
fundamental rights are primarily aimed at assuring political freedom to the
citizens by protecting them against excessive state action. Where as the
directive principles are aimed at securing social and economic freedoms by
appropriate state action. Both of them constitute the ‘conscience’ of our
constitution. The purpose of the fundamental rights is to create an egalitarian
society, to free all citizens from coercions or restrictions by state and to
make liberty available for all. The purpose of the directive principles is to
fix certain social and economic goals for immediate attainment by bringing
about a non-violent social revolution. Through such a social revolution the constitution
seeks to fulfil he basic needs of the common man and to change the structure of
our society. It aims at making the Indian masses free in the positive sense.
Without faithfully implementing the directive principles. It is not possible to
achieve the welfare state contemplated by the constitution.
The
directive principles guide the exercise of legislative power but do not control
the same. They give certain directions to the legislatures.
SUMMARY OF DIRECTIVE PRINCIPLES OF STATE POLICY
Article 36 defines “state” which is equal of
in the part-iii (article 12).
Article
37 provides that directive principles of state policy are not enforceable by
any court, but they are nevertheless fundamental in the governance of the
country and it shall be the duty of the state to apply these principles in
making laws.
Article
38 imposes the duty on the state that the state shall provide livelihood to all
citizens equally, equal pay for equal work for both, men and women, health and
strength to the workers, and to afford opportunities and facilities to children
and youth for the development mentally, morally, health etc.
Article
39-A provides that the state shall provides equal justice and free legal aid.
Free legal aid shall be given to the poor people.
Article
40 provides village panchayats shall be established, organised to get
self-sufficient. It is Gandhiji’s dream.
Article
41 provides that the state shall provide equal opportunities of work, education
to all citizens.
Article
42 imposes the duty on the state to make the appropriate laws for the welfare
of women workers who are pregnant, and also to provide just and humane
conditions to all workers.
Article
43 provides that the state shall see and arrange and make the appropriate laws
so that the workers shall get ‘living wage’.
Article
43-A provides that the state shall make the laws so that the workers shall
participate in the management of industries.
Article
44 imposes the duty on the state that the state shall endeavour to secure for
the citizens a uniform civil code throughout the territory of India.
Article
45 imposes the duty on the state to provide free and compulsory education for
children throughout India.
Article
46 provider that state shall promote with special care the educational and
economic interests of the weaker sections of the people, and in particular of
the scheduled castes and the scheduled tribes, and shall protect them from
social injustice and all forms of exploitation.
Article
47 casts duty on the state that it should raise the level of nutrition and the
standard of living and to improve public health, and the state shall endeavour
to bring about prohibition of the consumption except for medical purposes of
intoxicating drinks and of drugs which are injurious to health.
Article
48 provides that the state shall endeavour to organise agriculture and animal
husbandry on modern and scientific lines and shall, in particular, take steps
for preserving and improving the breeds, and prohibiting the slaughter of cows
and calves and other milch and drought cattle.
Article
48-A provides that the state shall preserve forests and wild animal and to
improve environment.
Article
49: imposes the duty on the state to protect of monuments and places and
objects of national importance.
Article
50 directs the state to take steps to separate the judiciary from the executive
in the public services of the state.
Article
51 directs that the state shall endeavour to (a) promote international peace
and security; (b) maintain just and honourable relations between nations; (c)
foster respect for international law and treaty obligations in the dealings of
organised peoples with one another; and (d) encourage settlement of
international disputes by arbitration.
DISTINCTION
BETWEEN FUNDAMENTAL RIGHT S AND DIRECTIVE PRINCIPLES OF STATE POLICY
The
constitutional balance and human between fundamental rights and directive
principles of state policy is itself an aspect of the basic structure of the
constitution. There is inter-relationship between them.
The
provisions contained in part-iv (directive principles of state policy) shall
not be enforceable by any court. But the principles laid down are nevertheless
fundamental.
Chand
rachud J. Observed : “our constitution aims at bringing about a synthesis
between fundamental rights and the directive principles of state policy, by
giving to the former a pride of place and to the latter a place permanence.
Together, not individually, they form the core of the constitution. Together
not individually, the constitute its true conscience.
FUNDAMENTAL
RIGHTS:
1.
Part-iii, containing article from 12 to 35
deals with fundamental rights.
2.
The fundamental rights can be enforceable by
any court against the state.
3.
These are primarily aimed at assuring
political freedom to the citizens by protecting them against excessive state
action.
4.
The fundamental rights are given a pride of
place by the constitution makers.
5.
The chapter of fundamental rights is
sacrosanct and not liable to be abridge by legislative or executive act or
orders, except in part-iii.
6.
Grover justice supreme court said: “where as
the fundamental rights lay down the means by which that goal was to be
achieved.”
7.
Fundamental rights occupy a unique place in
the lives of civilized society and have been variously described in judgment of
the supreme court as ‘transcend-dental’, ‘inalienable’ and ‘personal’.
8.
These are negative in character. The state is
asked not to do certain things for the people.
DIRECTIVE
PRINCIPLES OF STATE POLICY
1. Part-iv,
containing articles from 36 to 50, deal with directive principles of state
policy.
2. The
directive principles of state policy cannot be enforceable by any court.
3. These
are aimed at securing welfare, social and economic freedoms by appropriate
state action.
4. The
directive principles are given a place of permanence by the constitution
markers.
5. The
directive principles of state policy have to conform and to run as subsidiary
to the chapter of fundamental rights.
6. Grover
justice supreme court said: “directive principles prescribe the goal to be
attained.”
7. The
supreme court described the directive principles of state policy as “conscience
of our constitution”.
8. These
are positive in character. The state is directed to take certain positive steps
for the welfare and advancement of the people.
In Minerva Mills vs. Union
of India (AIR 1980), the supreme court held that the constitution is founded on
the bed-rock of the balance between part-iii and part-iv. To give absolute
primary to one over the other is to disturb the harmony of the constitution
which is the essential feature of the basic structure.
The supreme court held in
several cases that basically fundamental rights and directive principles are
co-equal. One is not to be subordinated to the other. Between fundamental
rights and directive principles, there is no repugnancy. Generally the
repugnancy arises between the legislation and fundamental rights, and the
statutes which are against the fundamental rights are struck down. But there is
no such incidence so far arisen in case between the fundamental rights and the
directive principles of state policy. They are complementary to each other. It
is not necessary to sacrifice one for another.
Hedge and Mukerjea JJ.
Observed: “the fundamental rights and the directive principles constitute the
conscience of our constitution. The purpose of the fundamental rights is to
create an egalitarian society, to free all citizens from coercion or
restriction by society and to make liberty available for all. The purpose of
the directive principles is to fix certain social and economic goals for
immediate attainment by bringing about a non-violent social revolution. Through such a social
revolution the constitution seeks to fulfil the basic needs of the common man
and to change the structure of our society. It aims at making the Indian masses
free in the positive sense. Without faithfully implementing the directive
principles, it is not possible to achieve the welfare state contemplated by the
constitution.”
Ray J. Observed: “the
directive principles are also fundamental. They can be effective if they are to
prevail over fundamental rights of a few in order to sub serve the common good
and not to allow economic system to result to the common detriment.”
While disposing Akhil
Bharatiya Soshit Karmachari Sangh vs. Union of India (1981) 1 SCC 246,
Chinnappa Reddy J. Observed: “the difference between the fundamental rights and
directive principles lies in this that the fundamental rights are primarily
aimed at assuring political freedom to the citizens by protecting them against
excessive state action while the directive principles are aimed at securing
social and economic freedoms by appropriate state action. The fundamental
rights are intended to foster the ideal of a political democracy and to prevent
the establishment of authoritarian rule but they are of no value unless they
can be enforced by resort to courts. So they are made justifiable. However, it
is also evident that not with standing their great importance, the directive
principles cannot in the very nature of things be enforced in a court of law.
But, it does not mean that directive principles are less important than
fundamental rights or that they are not binding on the various organs of the state.”
Dr. B.R. Ambedkar said: “in
my judgment, the directive principles have a great value, for the lay down that
our ideal is economic democracy. Because we did not want merely a parliamentary
from of government to be instituted through the various mechanism provided in
the constitution, without any direction as to what our economic ideal, as to
what our social order ought to be, we deliberately included the directive
principles in our constitution.”
17. THE SCHEDULED CASTES AND THE SCHEDULED
TRIBES (PREVENTION OF ATROCITIES) ACT, 1989
SCOPE: “un touch ability” is
a curse to the Indian society, especially to ‘Hinduism’. It has spoiled the
very structure and concept of Hinduism. As soon as India got independence, the
Indian parliament took strenuous efforts to abolish it. Article 17 of the
constitution abolishes un touch ability.
Under article 17, the Indian
parliament enacted the un touch ability (offences) act, 1955. Later the title
of the said act was converted into “the protection of civil rights act, 1955”.
In place of this act, a new act “the scheduled castes and the scheduled tribes
(prevention of atrocities) act, 1989 (act no. 33 of 1989) has been enacted.
This act came into force with effect from 30th January, 1990.
OBJECT: the preamble of act,
19889 says its object: “an act to prevent the commission of offences of
atrocities against the members of the scheduled castes and the scheduled
tribes, to provide for special courts for the trial of such offences and for
the relief and rehabilitation of the victims of such offences and for matters
connected there with or incidental thereto.”
SCHEME OF THE ACT: this act
contains 25 sections housed in five chapters. Chapter-1, containing sections 1
and 2, explains the provisions about “preliminary”. Section 2 defines certain
important terms necessary for this act. Chapter-ii, containing sections 3 to 9,
defines “offences of atrocities and punishments”. Chapter-iii containing
sections 10 to 13, explains “Externment”. Chapter-iv, (Ss. 14 & 15)
empowers the state to establish “special courts” to try the offences under this
act. Chapter-v, (Ss. 16 to 25) explains the miscellaneous provisions.
OFFENCES OF ATROCITIES
PUNISHMENT FOR OFFENCES OF
ATROCITIES: section 3 defines various offences of atrocities against a member
of a scheduled caste or a scheduled tribe and also punishment for the said
offences as follows:-
Whoever, not being a member
of a scheduled caste or a scheduled tribes to drink or eat any inedible or
obnoxious substance;
1.
Forces a member of a scheduled caste or a
scheduled tribes to drink or eat any inedible obnoxious substance;
2.
Acts with intent to cause injury, insult or
annoyance to any member of a scheduled caste, or a scheduled tribe by dumping
excreta, waste matter, carcasses or any other obnoxious substance in his
premises or neighbourhood;
3.
Forcibly removes clothes from the person of a
member of a scheduled caste or a scheduled tribe or parades him naked or with
painted face or body or commits any similar act which is derogatory to human
dignity;
4.
Wrongfully occupies or cultivates any land
owned by, or allotted by any competent authority to be allotted to, a member of
a scheduled caste or scheduled tribes or gets the land allotted to him
transferred;
5.
Wrongfully dispossesses a member of a
scheduled caste or a scheduled tribe from his land or premises or interferes
with the enjoyment of his rights any land, premises or water;
6.
Compels or entices a member of a scheduled caste
or scheduled caste or scheduled tribe to do ‘begging’ or other similar forms or
bonded labour other than any, compulsory service for public purpose imposed by
government;
7.
Forces or intimidates a member of a scheduled
caste or a scheduled tribe not to vote or to vote to a particular candidate or
to vote in a manner other than that provided by law;
8.
Institutes false, malicious or vexatious suit
or criminal or other legal proceedings against a member of a scheduled caste or
a scheduled tribe.
9.
Gives any false or information to any public
servant and there by causes such public servant to use his lawful power to the
injury or annoyance of a member of a scheduled caste or a scheduled tribe;
10.
Internationally insults or intimidates with
intent to humiliate a member of a scheduled caste or a scheduled tribe in any
place within public view;
11.
Assaults or uses force to any women belonging
to a scheduled caste or a scheduled tribe with intent to dishonour or outrage
her modesty;
12.
Being in a position to dominate the will of a
woman belonging to a scheduled caste or a scheduled tribe and uses that
position to exploit her sexually to which the would not have otherwise agreed;
13.
Corrupts or fouls the water of any spring,
reservoir or any other source ordinarily used by member of the scheduled caste
or the scheduled tribes so as to render it less fit for the purpose for which
it is ordinarily used;
14.
Denies a member of a scheduled caste or a
scheduled tribe any customary right of passage to place of public resort or
obstructs such member so as to prevent him from using or having access to a
place of public resort to which other members of public or any section there of
have a right to use or access to;
15.
Force or causes a member of a scheduled caste
of scheduled tribe to leave his house, village, or other place or residence;
Shall be punishable with
imprisonment for a term which shall not be less than six months but which may
extent to five years and with fine.
2. whoever, not being a
member of a scheduled caste or a scheduled tribe:-
(1) gives or fabricates
false evidence intending there by to cause, or knowing it to be likely that he
will there by cause, any member of a scheduled caste or a scheduled tribe to be
convicted of a offence which is capital by the law for the time being in force
shall be punished with imprisonment for life and with fine; and in an innocent
member of a scheduled caste or a scheduled tribe be convicted and executed in
consequence of such false of fabricated evidence, the person who gives a
fabricates such false evidence, shall be punished with death;
(2) gives fabricates false
evidence intending thereby to cause, or knowing it to be likely that he will
thereby cause, any member of a scheduled caste or a scheduled tribe to be
convicted of an offence which is not capital but punishable with imprisonment
for a term of seven years or upwards, shall be punishable with imprisonment for
a term which shall nit be less than six months but which may extend to seven
years or upwards and with fine;
(3)Commits mischief by fire
or any explosive substance intending to cause or knowing it to be likely that
he will thereby cause damage to any property belonging to a scheduled caste or
a scheduled tribe, shall be punishable with imprisonment for a term which shall
not be less than months but which may extend to seven years and with fine;
(4) commits mischief by fire or any
explosive substance intending to cause of knowing it to be likely that he will
there by cause damage to any property belonging to a member of a scheduled
caste of a scheduled tribe, shall be punishable with imprisonment for a term
which shall not be less than six months but which may extend to seven years and
with fine;-
(5) Commits mischief by fire or any
explosive substance intending to cause or knowing it to be likely that the will
there by cause destruction of any building which is ordinarily used as a place
of worship or as a place for human dwelling or as a place for custody for the
property by a member of a scheduled caste or a scheduled tribe, shall be
punishable with imprisonment for life and with fine;
(6) commits any offence under the Indian
penal code (45 of 1860) punishable with imprisonment foe a term of ten years or
more against a person or property on the ground that such person is a member of
a scheduled caste or a scheduled tribe or such property belongs to such member,
shall be punishable with imprisonment for life and with fine;
(7) knowingly or having reason to believe
that an offence has been committed under this chapter, cause any evidence of
the commission of that offence to disappear with intention of careening the
offender from legal punishment, or with the intention gives any information
respecting the offence which he knows or believes to be false, shall be
punishable with the punishment provided for that offence; or
(8) being a public servant, commits any
offence under this section, shall be punishable with imprisonment for a term
which shall not be less than one year but which may extend to the punishable
provided for their offence.
PUNISHMENT FOR NEGLECT OF
DUTIES:- section 4 says that whoever, being a public servant but not being a
member of a scheduled caste or a scheduled tribe, wilfully neglects his duties
required to be performed by him under this act, shall be punishable with
imprisonment for a term which shall not be less than six months but which may
extend to one year.
ENHANCED PUNISHMENT FOR
SUBSEQUENT CONVICTION:- section 5 says that whoever, having already been
convicted of an offence under his chapter is convicted for the second offence
or any offence subsequent to the second offence, shall be punishable with
imprisonment for a term which shall not be less than one year but which may
extend to the punishment provided for that offence.
APPLICATION OF CERTAIN
PROVISIONS OF THE INDIAN PENAL CODE:- section 6 says that subject to the other
provisions of this act, the provisions of sec. 34, chapter –iii, chapter-iv,
chapter-v, chapter-v-a, sections 149 and chapter xxiii of the Indian penal code
(45 of 1860), shall, so far as may be, apply for the purposes of this act as
they apply for the purposes of the Indian penal code.
FORFEITURE OF PROPERTY OF
CERTAIN PERSONS:- section 7 says that (1) where a person has been convicted of
any offence punishable under this chapter, the special court may, in addition
to awarding any punishment, by order in writing, declare that any property,
movable or immovable or both belonging to the person, which has been used for
the commission of that offence, shall stand forfeited to government.
2. where any person is
accused of any offence under this chapter, it shall be open to the special
court trying him to pass an order that all or any of the properties, movable or
immovable or both, belonging to him shall during the period of such trial, be attached,
and where such trial ends in conviction, the property so attached shall be
liable forfeiture to the extent it is required for the purpose of realisation
of any fine imposed under this chapter.
PRESUMPTION AS TO
OFFENCES:- section 8 says that in a prosecution
for an offence under this chapter, if it is proved that,---
(a)
The accused rendered any financial assistance
to a person accused of, or reasonably suspected of committing, an offence under
this chapter, the special court shall presume, unless the contrary proved, that
such person had abetted the offence;
(b) A
group of persons committed an offence under this chapter and if it is proved
that the offence committed was a sequel to any existing dispute regarding land
or any other matter, it shall be presumed that the offence was committed in
furtherance of the common intention or in prosecution of the common object.
What are human rights?
Human rights
are rights inherent to all human beings, whatever our nationality, place of
residence, sex, national or ethic origin, colour, religion, language, or any
other status. We are all equally entitled to our human rights without
discrimination. These rights and protect human rights and fundamental 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 right law lays down obligations of
governments 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.
Universal and
inalienable
The
principles 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.
Interdependent
and indivisible
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. The
improvement of one right facilitates advancement of the others. Likewise, the
deprivation of one right adversely affects the others.
Equal and
non-discriminatory
Non-discriminatory
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 t
prohibits discrimination on the basis of a list of non-exhaustive categories
such as sex, race, colour and so on. 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.”
Both rights
and obligations
Human rights
entail both rights and obligations. States assume obligations and duties under
international law to respect, to protect and to fulfil human rights. The
obligation to respect means that states must refrain 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 fulfil 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.
List of human
rights issues
Adequate
housing special Rapporteur on adequate housing as a to non-discrimination in
this context
Toolkit on
the right to adequate housing
Business and
human rights
Children
committee on the rights of the child (CRC)
OHCHR
thematic reports on children special Rapporteur on the united nations study on
violence against children
Civil and
political rights human rights committee (HRC)
Climate
change human rights and climate change
Rio+20 –
united nations conference on sustainable development
Coercive
measures unilateral coercive measures and human right
Cultural
rights special Rapporteur in the field of cultural rights
Democracy
rule of law – democracy and human rights
Detention
working group on Arbitrary detention
Development
(good governance and debt) development – good human rights and the financial
crisis
Independent
expert on the effects of foreign debt and other related human rights,
particularly economic, social and cultural rights operation disability disappearances
committee on enforced disappearances (CED) working group on enforced or
involuntary disappearances discrimination A special focus on discrimination
Human rights
bodies
The office of
the high commissioner for human rights (OHCHR) works to offer the best
expertise and support to the different human rights monitoring mechanisms in
the united nations system : UN chapter-based bodies, including the human rights
council, and bodies created under the international human rights treaties and
made up of independent experts mandated to monitor state parties, compliance
with their treaty obligations. Most of these bodies receive secretariat support
from the human rights council and treaties division of the office of the high
commissioner for human rights (OHCHR).
Charter-based
bodies
·
Human rights council
·
Universal periodic review
·
Commission on human rights
(replaced by the human rights council)
·
Special procedures of the human
rights council
·
Human rights council complaint
procedure
Treaty-based
bodies
There are ten
human rights treaty bodies that monitor implementation of the core
international human rights treaties;
·
Human rights committee (CCPR)
·
Committee on economic, social and
cultural rights (CESCR)
·
Committee on the elimination of
racial discrimination (CERD)
·
Committee on the elimination of
discrimination against women (CEDAW)
·
Committee against torture (CAT)
·
Subcommittee on prevention of
torture (SPT)
·
Committee on the rights of child
(CRC)
·
Committee on migrant workers
(CMW)
·
Committee on the rights of
persons with disabilities (CRPD)
·
Committee on enforced
disappearances (CED)
Charter-based
bodies
Charter bodies
include the former commission on human rights, the human rights council, and
special procedures. The human rights council, which replaced the commission on
human rights, held its first meeting on 19 June 2006. This intergovernmental
body, which meets in Geneva 10 weeks a year, is composed of 47 elected united
nations member states who serve for an initial period of 3 years, and cannot be
elected for more than two consecutive terms. The human rights council is a
forum empowered to prevent abuses, inequity and discrimination, protect the
most vulnerable, and expose perpetrators.
The human rights
council is a separate entity from OHCHR. This distinction originates from the
separate mandates they were given by the general assembly. Nevertheless, OHCHR
provides substantive support for the meetings of the human rights council, and follow-up
to the council’s deliberations.
Special
procedures is the general name given to the mechanisms established by the
commission on human rights and assumed by the human rights council to address
either specific country situations or thematic issues in all parts of the
world. Special procedures are either an individual – a special Rapporteur or
representative, or independent expert – or a working group. They are prominent,
independent experts working on a voluntary basis, appointment by the human rights
council.
Special
procedure mandates usually call on mandate-holders to examine, monitor, advise
and publicly report on human rights situations in specific countries or
territories, known as country mandates, or on major phenomena of human rights
violations worldwide, known as thematic mandates. There are 37 thematic
mandates and 14 country mandates. All report to the human rights council on
their findings and recommendations. They are sometimes the only mechanism that
will alter the international community on certain human rights issues.
OHCHR supports
the work of Rapporteurs, representatives and working groups through its special
procedures division (SPD) which services 27 thematic mandates; and the research
and right to development division ()of human
rights standards and principles, including the rights to development; while the
field operations and technical co-operation division (FOTCD) support the work
of country-mandates.
Treaty-based
bodies
There are nine
core international human rights treaties, the most recent one – on enforced
disappearance – entered into force on 23 December 2010. Since the adoption of
the universal declaration of human rights in 1948, all UN member states have
ratified at least one core international human rights treaty, and 80 percent
have ratified four or more.
There are
currently ten human rights treaty bodies, which are committees of independent
experts nine of these treaty bodies monitor implementation of the core
international human rights treaties while the treaty body, the subcommittee on
prevention of torture, established under the optional protocol to the
convention against torture, monitors places of detention in states parties to
the optional protocol.
The treaty
bodies are created in accordance with the provisions of the treaty that they
monitor. OHCHR supports the work of treaty bodies and assists them in
harmonizing their working methods and reporting requirements through their
secretariats.
There are other
united nations bodies and entities involved in the promotion and protection of
human rights
16th
– 18th century
The earliest
conceptualization of human rights is credited to ideas about natural rights
emanating from natural law. In particular, the issue of universal rights was
introduced by the examination of extending rights to indigenous peoples by
Spanish clerics, such as Francisco de Vitoria and Bartolome de Las casas. In
the Valladolid debate, Juan Gines de Sepulveda, who maintained an Aristotelian
view of humanity as divided into classes of different worth, argued with Las
casas, who argued in favor of equal rights to freedom from slavery for all
humans regardless of race or religion.
17th –
century English philosopher John Locke discussed natural rights in his work,
identifying them as being “life, liberty, and estate (property)”, and argued
that such fundamental rights could not be surrendered in the social contract.
In Britain in 1689, to English bill of rights ad the Scottish claim of rights
each made illegal a range of oppressive governmental actions. Two major
revolutions occurred during the 18th century, in the united states
(1776) and in France (1789), leading to the adoption of the united states
declaration of independence and the French declaration of the rights of man and
of the citizen respectively, both of which established certain legal rights. Additionally,
the Virginia declaration of rights of 1776 encoded into law a number of
fundamental civil rights freedoms.
Declaration of
the rights of man and of the citizen approved by the national assembly of
France, august 26, 1789.
We hold these
truths to be self-evident, that all men are created equal, that they are
endowed by their creator with certain unalienable rights, that among these are
life, liberty and the pursuit of happiness.
United states
declaration of independence, 1776
These were
followed by developments in philosophy of human rights by philosophers such as
Thomas Paine, John Stuart mill and G.W.F. Hegel during the 18th and
19th centuries. The term human rights probably came into use
sometime between Paine’s the rights of man and William Lloyd Garrison’s 1831
writings in the Liberator, in which he stated that he was trying to enlist his
readers in “the great cause of human rights”. Although the term had been used
by at least one author as early as 1742.
19th
century
In the 19th century, human rights became a central concern
over the issue of slavery. A number of reformers, notably William Wilberforce
in Britain, worked towards the abolition of slavery. This was achieved in the
British empire by the slave trade act 1807 and the slavery abolition act 1833.
In the united states, all the northern states had abolished the institution of
slavery between 1777 and 1804, although southern states clung tightly to the
“peculiar institution”. Conflict and debated over the expansion of slavery to
new territories constituted one of the reasons for the southern states
secession and the American civil war. During the reconstruction period
immediately following the war, several amendments to the united states
constitution were made. These included the 13th amendment, banning
slavery, the 14th amendment, assuring full citizenship and civil
rights to all people born in the united states, and the 15th
amendment, guaranteeing Africans the right to vote. In Russia, the reformer
Tsar Alexander ii ended serfdom in 1861, although the freed serfs often faced
restrictions of their mobility within the nation.
Many group and
movements have achieved profound social changes over the course of the 20th
century in the name of human rights. In Europe and north America, labour unions
brought about laws granting workers the right to strike, establishing minimum
work conditions and forbidding or regulating child labor. The women’s rights
movement succeeded in gaining for many women the right to vote. National
liberation movements in many countries succeeded in driving out colonial
powers. One of the most influential was Mahatma Gandhi’s movement to free his
native India from British rule. Movements by long-oppressed racial and
religious minorities succeeded in many parts of the world, among them the
African American civil rights movement, and more recent diverse identity
political movements, on behalf of women and minorities in the united states.
The
establishment of the international committee of the red cross, the 1864 Leiber
code and the first of the Geneva conventions in 1864 laid the foundations of
international humanitarian law, to be further developed following the two world
wars.
20th
century
The world wars,
and the huge losses of life and gross abuses of human rights that took place
during them, were a driving force behind the development of modern human rights
instruments. The league of nations was established in 1919 at the negotiations
over the treaty of Versailles following the end of world war I. the league’s
goals included disarmament, preventing war through collective security, setting
disputes between countries through negotiation and diplomacy global welfare.
Enshrined in its charter was a mandate to promote many of the rights later
included in the universal declaration of human rights.
At the 1945
Yalta conference, the allied powers agreed to create a new body to supplant the
league’s role; this was to the united nations. The united nations has played an
important role in international human rights law since creation. Following the
world wars, the united nations and its members developed much of the discourse
and the bodies of law that now make up international humanitarian law and
international human rights law. Analyst Belinda cooper argued that human rights
organizations flourished in the 1990s, possibly as a result of the dissolution
of the western and eastern cold war blocs. Stefan-Ludwig Hoffmann argues that
human rights became more widely emphasized in the latter half of the twentieth
century because it “provided a language for political claim making and
counter-claims, liberal-democratic, but also socialist and post colonialist.”
Philosophy
Main article:
philosophy of human rights
The philosophy
of human rights attempts to examine the underlying basis of the concept of
human rights and critically looks at its content and justification. Several
theoretical approaches have been advanced to explain how and why human rights
have become a part of social expectations.
One of the
oldest western philosophies of human rights is that they are a product of a
natural law, stemming from different philosophical or religious grounds. Other
theories hold that human rights codify moral behavior which is a human social
product developed by a process of biological and social evolution (associated
with Hume).human rights are also described as a sociological pattern of rule
setting (as in the sociological theory of law and the work of Weber). These
approaches include the notion that individuals in a society accept rules from
legitimate authority in exchange for security and economic advantage (as in
Rawls) – a social contract, the two theories that dominate contemporary human
rights discussion are the interest theory and the will theory. Interest theory
argues that the principal function of human rights is to protect and promote
certain essential human interests, while will theory attempts to establish the
validity of human rights based on the unique human capacity for freedom.
Criticism
The claims made
by human rights to universality have led to criticism. Philosophers who have
criticized the concept of human rights include Jeremy Bentham, Edmund Burke,
Friedrich Nietzsche and Karl Marx. Political philosophy professor Charles
Blattberg argues that discussion of human rights, being abstract, demotivates
people from upholding the values that rights are meant to two affirm. The
internet encyclopedia of philosophy gives particular attention to two types of
criticisms: the one questioning universality of human rights and the one
denying them objective ground. Alain Pellet, an international law scholar,
criticize “human rightism” approach as denying the principle of sovereignty and
claiming a special place for human rights among the branches of international
law; Alain de Benoist questions human rights premises of human equality. David
Kennedy had listed pragmatic worries and polemical charges concerning human
rights in 2002 in Harvard human rights Journal.
Classification
Human rights can
be classified and organized in a number of different ways. At an international
level the most common categorization of human rights has been to split them
into civil and political rights, and economic, social and cultural rights.
Civil and
political rights are enshrined in articles 3 to 21 of the universal declaration
of human rights (UDHR) and in the international covenant on civil and political
rights (ICCPR). Economic, social and cultural rights are enshrined in articles
22 to 28 of the universal declaration of human rights (UDHR) and in the
international covenant on economic, social and cultural right (ICESCR).
Indivisibility
The UDHR
included both economic, social and cultural rights and civil and political
rights because it was based on the principle that the different rights could
only successfully exist in combination:
The ideal of the
free human beings enjoying civil and political freedom and freedom from fear
and want can only be achieved if conditions are created where by everyone may
enjoy his civil and political rights, as well as his civil and political
rights, as well as his social, economic and cultural rights.
International
covenant on civil and political rights and the international covenant on
economic social and cultural rights, 1966
This is held to
be true because without civil and political rights the public cannot assert
their economic, social and cultural rights. Similarly, without livelihoods and
a working society, the public cannot assert or make use of civil or political
rights (known as the full belly thesis).
The
indivisibility and interdependence of all human rights has been confirmed by
the 1993 Vienna declaration and programmers of action:
All human rights
are universal, indivisible and interdependent and related. The international
community must treat human rights globally in a fair and equal manner, on the
same footing, and with the same emphasis.
Vienna
declaration and programme of action, world conference on human rights, 1993
This statement
was again endorsed at the 2005 world summit in new York (paragraph 121).
Although
accepted by the signatories to the UDHR, most do not in practice give equal
weight to the different types of rights. Some western cultures have often given
priority to civil and political rights, sometimes at the expense of economic
and social rights such as the right to work, to education, health and housing.
Similarly the ex soviet bloc countries and Asian countries have tended to give
priority to economic, social and cultural rights, but have often failed to
provide civil and political rights.
