ADITYA JUNEJA

▪ WHAT IS HUMAN RIGHTS?

Every Single Human Being Is Entitled To Enjoy His Or Her Human Rights Without
Distinction As To Race, Colour, Sex, Language, Religion, Political Or Other Opinion,
National Or Social Origin, Property, Birth Or Other Status.
Human Rights are Inalienable Fundamental Rights to which a person is Inherently Entitled
simply because she or he is a human being. The term ‘Human Rights’ is used to denote a
broad spectrum of rights ranging from the Classic Rights to Social Rights.

▪ CHARACTERISTIC OF HR –
• UNIVERSAL
• EGALITARIAN
• INALIENABLE
• INDIVISIBLE AND INTERDEPENDENT

1. INALIENABLE - They are the rights which cannot be taken away, except by due
process of law.
Humans possess these rights as a matter of natural right which has to be respected at all
times. The very fact they are born as human give them the right to possess human
rights to live a dignified life.

2. EGALITARIAN - Status of Equality has to be maintained at all times. Allen Buchana

states human rights exhibits a robust commitment to affirming and protecting the
equal basic moral status of all individuals thereby ensuring that human rights is
guaranteed to one an all.

3. Indivisible and Interdependent - Principle of indivisibility recognizes that no human

right is inherently inferior to any other rights. There is no option of Right to choose. The
international community must treat human rights globally in a fair and equal manner, on
the same footing, and with the same emphasis. Human rights are interdependent: all
economic and social rights are part of a complementary framework.
Indivisibility is linked to the concept of interdependence – meaning that each right
forming part of human rights is only fully enjoyed when the other rights are also being
enjoyed.
Every right forming part of human rights is equally important, deserves equal protection
and promotion and can only be truly enjoyed if all other rights are concurrently
implemented.
Example - Indivisibility and Interdependency of all rights have finally been codified by
way of the recently adopted Optional Protocol to the ICESCR.
States parties to the Optional Protocol will recognise the competence of the Committee on
Economic, Social and Cultural Rights to receive, Act and consider individual and
collective complaints alleging violations of economic, social and cultural rights set forth

1
 ADITYA JUNEJA

in the ICESCR.

4. UNIVERSALITY – i. CONCEPTUAL UNIVERSALITY, ii. SUBSTANTIVE

UNIVERSALITY

- CONCEPTUAL UNIVERSALITY - Human rights are ordinarily understood to be

the rights that one has simply because one is human. Human rights are also
inalienable rights, because being or not being human usually is seen as an inalterable
fact of nature, not something that is either earned or can be lost. Human rights are thus
“universal” rights in the sense that they are held “universally” by all human beings.
Conceptual universality is in effect just another way of saying that human rights are,
by definition, equal and inalienable. Conceptual universality, however, establishes
only that if there are any such rights, they are held equally/universally by all. It
does not show that there are any such rights.

- SUBSTANTIVE UNIVERSALITY - Whereas Substantive Universality is a list of

human rights enshrined in a legal document like UDHR OR Covenants.

▪ IMPORTANCE OF HUMAN RIGHTS

Human rights are important in the relationships that exist between individuals and the
government that has power over them. The government exercises power over its people.
However, human rights mean that this power is limited. States have to look after the
basic needs of the people and protect some of their freedoms. Some of the most
important features of human rights are the following:
They are for everyone.
They are internationally guaranteed.
They are protected by law.
They focus on the dignity of the human being.
They protect individuals and groups.
They cannot be taken away.

▪ CLASSIFICATION OF HUMAN RIGHTS

1. Human rights of first generation: International Covenant on Civil and Political Rights
(ICCPR)
2. Human rights of second generation: International Covenant on economic, social and
cultural rights (ICESCR).
3. Human rights of third generation: Collective Rights.

These are also called as Three Generations of Human Rights.

2
 ADITYA JUNEJA

- HUMAN RIGHTS OF FIRST GENERATION

It was until the middle of the 20th century that these rights came into picture.
Civil rights included:
- The right to life.
- the Right to privacy
- Prohibition of torture and inhuman or degrading punishments;
- Prohibition of slavery and forced labour.
- Freedom and security of a person - the Right to a fair trial.
- The right to property of the person or of a legal person.
- Freedom of mind, of thought and religion.
- Freedom of expression and information.
- Freedom to free elections.

These rights represent the first generation of subjective rights, and more precisely those rights
that refer to personal autonomy of the individual and the rights that enable citizen
participation in power in a society where the exercise of natural rights of each man has no
limits, than those which ensure for the other members of society the same rights.
In the modern age, these rights are found in the laws of most countries, as well as in
international documents. Among them we mention:
1. The Universal Declaration of Human Rights U.N. –
2. The International Convenant on Civil and Political Rights

- HUMAN RIGHTS OF SECOND GENERATION

Many felt that first-generation rights were too narrow to define the scope of free and equal
citizenship. It was contended that an additional set of claims such as rights to food, shelter,
medical care, housing and employment could only lead to the realization of such
citizenship.
These rights belong to the second generation of economic ‘welfare rights’ which ensured
that the first generation rights could be made effective in protecting the vital interests of
citizens and were not simply paper guarantees. These rights come from positive law, as well
as from international law (International Covenant on Economic, social and cultural)
The second generation of rights, against the first generation of rights requires institutional
support from the state, where as the first generation rights can be exercised independently and
singular.
The state must intervene through legislation to create an institutional system that allows the
exercise, for example, of the right to education or social security. It is estimated that if the
first generation rights form "free status”, social economic rights are related to the
“social status” of the individual.

3
 ADITYA JUNEJA

- HUMAN RIGHTS OF THIRD GENERATION

In this category we identify the third generation rights as solidarity rights, as they cannot be
exerted by an individual, but only collectively, like:
1. the right to self determination
2. the right to peace
3. the right to development
4. Right to environmental law
5. the right of minorities.

The third generation rights require not only the need to create an institutional support by
the State, but, as in the case of second generation rights, they need to restrict the first
generation of rights, through a so called “positive discrimination”, in the sense that these
rights, like the rights of any minority, require a limitation of rights of first generation.
The environmental law allows social groups to live in a healthy environment, clean, without
harmful agents to health but, in the same time, involves a number of limitations of rights of
first or second generation, like owning a forest or the right to work.

▪ SOURCES OF HUMAN RIGHTS

A. RELIGION –

Human rights traditionally as such is not found in religious text. Nonetheless, the
human rights theory stem from many religious book like Bhagvad Gita, Holy Quran
and even in the Old Testament.
Under this source, it was believed by the religious heads that the human are images
of God and hence certain basic rights should be accorded to them.

From a religious point of view, human rights were more akin on duties rather than
on rights. The religious philosophers strongly believed that interpretation of religious
doctrine supports that the fundamental principles of justice and equality can only
be achieved if men are guaranteed certain basic rights which takes a form of duty to
be adhered at all times.

B. NATURAL LAW –
GROTIUS (Father of International Law) and JOHN LOCKE were chief
exponent of this theory.
According to this theory, natural law is the dictate of right reason. In this theory, man
and women were in a state of freedom and equality where no was subject to the will

4
 ADITYA JUNEJA

of the authority. However, to end the inconvenience they have mutually entered into a
social contract to form a community and set a body politic.
Natural law theory marks an important contribution to human rights where in it
identifies certain rights which need to be asserted in order to secure human
freedom and equality. They consider these rights to be inalienable which has to be
guaranteed by the higher authorities as these rights are devolved by divine.

C. POSITIVE THEORY –
According to Positivism theory all rights, whether human or not, stems from what
state and its official have prescribed. The source of human rights, in this theory,
encourages the belief that human rights are the moral foundations of society which
has to be obeyed , no matter how immoral it is.
They emphasize on the fact that there is a superior which commands obedience
from its people, and if the superiors declares certain rights to be human rights,
even if it is unjust, has to be adhered at all times.

Contemporary law cannot easily appeal to the authority of God, nature, divine rulers,
or universal ethics; it must instead appeal to the authority of democratic self-
determination. Democratic self-determination may be better off by recovering a
concept of natural justice, thereby drawing a distinction between good, reasonable,
and rational positive laws and bad, unreasonable, and irrational ones.
However, the sustainability of sovereign positive law depends heavily on its
rationality and reasonableness or the fact that it is good law. Positive law’ means
man-made law, created by governments and responsive to the needs of the state.
However, many theorists believe that the positive laws should all be in conformity
with the ‘higher’ principles of natural law.

D. MARXISM –
Karl Marx regarded law of nature approach to human rights as idealistic under
Marxism. Marx believed in capitalist society which was divided into two halves. One
is Proletariat(have not class) and other is bourgeoisie (have class).
It is the ‘have class’ that owns the resources in the society and controls the ‘have
not’ class.
If economic forms and exchanges established the equality of subjects in all respects,
then the content, namely the personal and material goods which motivated the
individuals to exchange, established freedom. It is thus evident that equality and
freedom are not merely respected in exchanges based on exchange values.
The exchange values are the basis of all equality and freedom in terms of production
and realistic meaning.

E. SOCIOLOGICAL APPROACH –
Roscoe Pound was the chief exponent. He understood the scope of human rights from
the prism of social process.

5
 ADITYA JUNEJA

According to his theory of social engineering, in a political organized society,

human relations have to be guaranteed by certain basic, human rights so as to secure
interest of all with the least sacrifice of individual interest. Harmony of human rights
should be attained in a society where individual interest and societal interest is
balanced.

F. RIGHTS BASED ON JUSTICE –

According to John Rawl’s theory of justice every person in society should have an
access to two types of human rights
1. Basic Liberties
2. Distributive Justice

BASIC LIBERTIES are those which are also known as civil and political rights
which have to be ensured by the STATE to be guaranteed to its citizen at all time.
However these rights, although having characteristic of human rights, comes with
certain restrictions.
Distributive Justice
These are social and economic rights for the people to access which a state ensures by
having adequate resources. Unless these rights are not provided to the people as
human rights, the society will be devoid of attaining an egalitarian status.

G. RIGHTS BASED ON DIGNITY –

According to this theory of human rights a comprehensive system of human rights are
based on the protection of human dignity.
McDougal, Lasswell and Chen the exponent of this theory believed that human rights
foundation is dignity which can only be attained if the rights these eight values. The
values are Respect, Power, Enlightenment, Skill, Integrity, well Being, Affection
and Health

H. RIGHTS BASED ON REACTION TO INJUSTICE –

EDMUND CAHN was the chief exponent of this theory.
According to this theory human rights are evolved on the basis of human
responses that are evoked due to injustice.
The identification of justice has to stem from the revolutions that society responds to
the abuses that are prevalent in the society.

6
 ADITYA JUNEJA

HUMAN
RIGHTS

HORIZONTAL VERTICAL
STRAND STRAND

CONSTITUTION IMPLEMENTED
ALISM BY STATES

Horizontal strand means human rights are basic, universal but the fact that there might be
situations where human rights might be curbed due to certain circumstances. Human rights
are freedoms that come with limitations.
Vertical strand implies the human rights are not be given mere consensus at international
platform but they have to be incorporated as laws within national legislation of the country.

In earlier times, after the end of World War-I, LEAGUE OF NATION was established.
During this period, Permanent Court Of International Justice, 1921 came into force which
acted a s an advisory body to pursue the state to honor its commitment to the treaty signed.

For example, the Court advised the government of Poland to honour the minorities treaties
undertaken and allow the inhabitants of Poland to live without any discrimination. The
Poland government was strictly asked to adhere to all the commitment stated in the treaty and
not to allow any discrimination, especially against Germans with relation to their right to
property.

NUREMBERG TRIAL
- ALLIED POWER V AXIS POWER
- INTERNATIONAL MILITARY TRIBUNAL WAS SET UP
- CHARGES OF INHUMANE TREATMENT, WAR AGAINST HUMANITY AND
PEACE,
- MISTREATMENT OF CIVILIANS.

Nuremberg trial was the first trial constituted at international level to bring the perpetrators
of war crimes to justice. This trial for the first time highlighted the fact that, irrespective of
whether states have signed conventions or treaties with regard to human rights, they would
still be amenable to the court for the violations of human rights.

Another view is that Nuremberg trial just had a cloak of protection of human rights. Basically
it was the powerful forces who subjected the less powerful countries to adhere to those rights
which were human rights in the eyes of Allied Powers. Trial was just an eyewash of declaring

7
 ADITYA JUNEJA

to the other states that human rights would always be subservient to whims and fancies of the
powerful countries.

Universalism
Human rights are closely tied to claims of universality.
Universal human rights, properly understood, leave considerable space for national,
regional, cultural particularity and other forms of diversity and relativity. Example
Cultural Relativism.

Cultural Relativism
Human rights represent values that attach to culture of a particular community.
Example: Article 18 of the Universal Declaration reads, in its entirety, “Everyone has the
right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief….
There are communities that deny the right to change their religion.

Universalism refers to the notion that human rights are universal and should apply to every
human being.
Cultural Relativists object, and argue that human rights are culturally dependent, and that no
moral principles can be made to apply to all cultures. Cultural relativism notes that cultures
vary in what they regard as right and wrong, standards vary from place to place and over
time, there is no universal standard, and consequently it is mistaken to criticize the practices
of another culture.

According to cultural relativism, Female Genital Mutilation is neither right nor wrong. It
is wrong according to western standards, but may be permissible according to the
values of other societies.

In Sierra Leone, a balance was created by issuing a judicial order with regard to dress code
of women.
In china, in spite of inhumane treatment which one has to endure in order to achieve
‘PERFECT, DAINTY FEET’, footbinding is voluntarily followed by women.

The Nats Purwa, a small village in Uttar Pradesh have prostitution, a trade which is passed
from generation to generation and some still carry on this tradition. Similar is the case of
Bedia community, in M.P., where culturally women earn living through prostitution and the
entire house is run by women only.
(Art. 26 of ICCPR, as well as several specific conventions) prescribes not only the
“negative” obligation by the states not to discriminate their own legislations, but even their
“positive” obligation to actively fight against any discrimination that may take place in the
society among private actors.

8
 ADITYA JUNEJA

UNIT – 2

CREATION OF UN CHARTER
World War II raged from 1939 to 1945, and as the end drew near, cities throughout Europe
and Asia lay in smoldering ruins. Millions of people were dead, millions more were homeless
or starving.
In April 1945, delegates from fifty countries met in San Francisco full of optimism and hope.
The goal of the United Nations Conference on International Organization was to fashion an
international body to promote peace and prevent future wars.

The ideals of the organization were stated in the preamble to its proposed charter: “We the
peoples of the United Nations are determined to save succeeding generations from the
scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The
Charter of the new United Nations organization went into effect on October 24, 1945, a date
that is celebrated each year as United Nations Day.

The Charter of the United Nations in its Preamble reaffirms "faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women
and of nations large and small“.
The United Nations will go down in history as the first international organization to
concern itself in serious way with the rights of all human beings", adding that "it is the
principal agency for focusing world attention on the gravest violations of such rights."

On the one hand Members pledge themselves to take joint and separate action in co-operation
with the Organization to promote universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex, language, or religion.
On the other hand, the Organization is not authorized 'to intervene in matters essentially
within the domestic jurisdiction of any state...' This provision is too often used to override
any specific human rights obligations a state may have accepted.( In name of CULTURE)

Hans Kelsen expressed the view that the language used by the Charter in this respect does
not allow the interpretation that the Members are under legal obligations regarding the rights
and freedoms of their subjects.
George Schwarzenberger held that in the Charter, a clear distinction is drawn between the
promotion and encouragement of respect for human rights, and the actual protection of these
rights. The former one is entrusted to the United Nations. The other remains in the

9
 ADITYA JUNEJA

prerogative of each Member State.

Hersch Lauterpacht, who wrote that the Charter of the Organization actually imposes on the
Member States the legal duty to respect and observe fundamental human rights and freedoms.
Articles 1(3), 55(c) and 76(c) set out the United Nations' purposes or objectives in relation to
human rights.

According to Article 1(3), one of the purposes of the United Nations, is to achieve
international co-operation...in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language, or religion. Article
1 of the Charter "are binding on the Organization, its organs and its agencies, indicating
the direction STATE should conduct their activities.

Article 1(3) may be compared with a similar provision in Article 55:

With a view to the creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, the United Nations shall promote:
(a).....
(b).....
(c) universal respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.

Under Article 55(c), the United Nations is obliged to promotion among nations through
promotion of human rights within state, under Article 1(3), the Organization is obliged to
promote and encourage by achieving international co-operation.
In fact the two articles are more similar in meaning than they may appear. On a superficial
reading, the obligation imposed on the United Nations by Article 1(3) relates to the
achievement of international co-operation for the purpose of promoting respect for
human rights, whereas the obligation imposed by 55(c) relates directly to the promotion
of this end itself.

Article 55 states With a view to the creation of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, the United Nations shall promote
(A) the promotion of respect for human rights, with
(B) the creation of conditions of stability and well-being, and that with
(C) the establishment of peaceful and friendly relations among nations.

Example: The statement reflects the theory, which many people in the United States and
other Western countries accepted during and after the Second World War, that violations of
human rights (such as those that had been practiced by the Nazis and their partners) lead to
misery and instability, which in turn may endanger the peace of the world.

10
 ADITYA JUNEJA

These two articles may now be compared with Article 76, which states
the basic objectives of the trusteeship system, in accordance with the Purposes of the United
Nations laid down in Article 1.
These objectives include:
(a) to further international peace and security;
(b).....
(c) to encourage respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion...

Objective (c) concerns the encouragement of a certain end which is identical with the end
referred to in Article 1(3), and also is essentially identical with that in Article 55(c).
By Article 76(c) the United Nations, under whose authority the trusteeship system functions,
is obliged to encourage the realization of this end.
The practical effect of 76(c) is simply to emphasize that the general obligation which the
Organization assumes under the two other human rights provisions, applies in relation to trust
territories too. Respect for human rights is (at least according to the theory implicit in Article
55) conducive to international peace, which is the first objective of the trusteeship system, as
indeed of the United Nations itself.

A general kind of understanding of the matter may be achieved by considering certain

provisions in Article 2 of the Charter.
The article begins with the words: "The Organization and its Members, in pursuit of the
Purposes stated in Article 1, shall act in accordance with the following Principles" - and
proceeds to specify seven principles.
In the present connection, the most significant of the principles are the following:
(1) All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance with
the present Charter.
(2) All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter...
(3) Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any state...

The underlying idea is that the United Nations' purposes, or rather the requirement and duty
of the Organization to pursue them, imply for all the Members certain relevant obligations.
Obligations in the form of giving assistance to whatever the Organization does in pursuit of
its purposes.

THE FULFILLMENT OF HUMAN RIGHTS OBLIGATIONS BY THE UNITED

NATIONS AND ITS MEMBERS
The United Nations organs which are most closely associated with the promotion of respect
for human rights are the General Assembly and the Economic and Social Council
(ECOSOC).
The powers which these organs have in this connection are mentioned explicitly in three

11
 ADITYA JUNEJA

articles. According to Article 13(1)(b):

The General Assembly shall initiate studies and make recommendations for the purpose
of...assisting in the realization of human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.

Article 62(2) provides that the Economic and Social Council ...may make recommendations
for the purpose of promoting respect for, and observance of, human rights and fundamental
freedoms for all.
Article 68 states that: The Economic and Social Council shall set up commissions in
economic and social fields and for the promotion of human rights..
Besides these articles, there is also Article 10 which empowers the General Assembly to
"discuss any questions or any matters within the scope of the present Charter" - and these
must be taken to include questions and matters relating to human rights. Further, according to
Article 62(3) and (4), ECOSOC may prepare draft conventions for submission to the General
Assembly and call international conferences on matters falling within its competence which
cover human rights issues.

INTERNATIONAL BILLS OF HUMAN RIGHTS

UNIVERSAL DECLARATION OF HUMAN RIGHTS –

The UDHR was adopted by the newly established United Nations on 10 December 1948, in
response to the “barbarous acts which outraged the conscience of mankind” during the
Second World War. Its adoption recognised human rights to be the foundation for freedom,
justice and peace.
Work on the UDHR began in 1946, with a drafting committee composed of representatives of
a wide variety of countries, including the USA and China.
The drafting committee was later enlarged to include representatives of Australia, Chile,
France, the Soviet Union and the United Kingdom, allowing the document to benefit from
contributions of states from all regions, and their diverse religious, political and cultural
contexts. The UDHR was then discussed by all members of the UN Commission on Human
Rights and finally adopted by the General Assembly in 1948.
UDHR covered economic, social civil an political rights.
UDHR could be akin to International customary law, which had to be adhered by all
the member states at all cost.

The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United
Nations General Assembly on December 10, 1948 at the Palais de Chaillot, Paris. The
Declaration arose directly from the experience of the Second World War and represents the
first global expression of what many believe are the rights to which all human beings are
inherently entitled.
The UDHR urges member nations to promote a number of human, civil, economic, and social
rights, asserting these rights are part of the “foundation of freedom, justice and peace in the

12
 ADITYA JUNEJA

world.” It aims to recognize, “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.” The full text is published by the United Nations on its website.
The UDHR was framed by members of the Human Rights Commission, with Eleanor
Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The
members of the Commission did not immediately agree on the form of such a bill of rights
and whether or how it should be enforced.

CONCERNS ABOUT DRAFTING OF UDHR

During World War II, the Allies adopted the Four Freedoms—freedom of speech,
freedom of religion, freedom from fear, and freedom from want—as their basic war
aims. The United Nations Charter “reaffirmed faith in fundamental human rights, and dignity
and worth of the human person” and committed all member states to promote “universal
respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.”
When the atrocities committed by Nazi Germany became apparent after the war, the
consensus within the world community was that the United Nations Charter did not
sufficiently define the rights to which it referred. A universal declaration that specified the
rights of individuals was necessary to give effect to the Charter’s provisions on human rights.
As of now, The Declaration has also provided the foundation from which a wealth of other
legally binding human rights treaties have been developed, and has become a clear
benchmark for the universal human rights standards that must be promoted and protected in
all countries.
The UDHR was the first document in history to explicitly define what individual rights are
and how they must be protected. The Preamble of the document outlines the rights of all
human beings.

The international community was expected to frame International Bill Of Human Rights.
However, due to paucity of time this work was given to ECOSOC, wherein Human Right
Commission( Now, Human Right Council) was given this task.
Since there was no consensus amongst the member as to whether the bill of rights should be
convention or declaration, it was eventually settled for declaration. Declaration content was
more general and wider in content which would eventually lead to formation of Conventions.

SIGNIFICANCE OF UDHR

The UDHR acts as a guideline for humankind, in determining what is right, and what is
wrong. More than that, it is a picture of what the world looks like when it’s working
right. It gives humankind something to aspire to.
The UDHR has also, indirectly helped States in drafting their constitutions and forming their
own HR policies. UDHR can be advocated that it promulgates general moral precepts,
applicable to everyone, thereby universalizing the notion of a fundamental baseline of human

13
 ADITYA JUNEJA

welfare. In the 1960s and 70s for example, several organs of the UN utilized the UDHR’s
provisions to condemn racial discrimination in South Africa during the Apartheid.

PROVISIONS OF UDHR
Article I: All human beings are born free and equal in dignity and rights.
Article 2: 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.
Article 3: Everyone has the right to life, liberty and security of person.
Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

The first 21 Articles relates to Civil and Political Rights, next six articles (22-27) deals with
economic, social and cultural rights and last three (28-30) have a general bearing over the
declaration where in certain limitations are imposed.

RIGHTS UDHR INDIAN CONSTITUT

EQUALITY AND BROTHERHOOD ART 1 PREAMBLE

NO DISCRIMINATION ON BASIS OF RACE , RELIGION, SEX ETC ART 2 ART 15 & 16

RIGHT TO LIFE AND LIBERTY ART 3 ART 21

FREEDOM FROM SLAVERY ART 4 ART 17

FREEDOM FROM TORTURE, CRUEL INHUMANE TREATMENT ART 5 ART 21

RIGHT TO REMEDY TO PROTECT FUNDAMENTAL RIGHTS ART 8 ART 32

In Vienna Declaration and Programme of Action, 1993 of World Conferences on Human

rights, 171 countries reaffirmed the provision of UDHR to further strengthen human rights
principles.
CRITICISM: there are some states in general which conclude that as a matter of fact some
and not all provisions of the Universal Declaration on Human Rights have passed into

14
 ADITYA JUNEJA

customary international law. Still, in such cases the precise number of such legally obligatory
provision under Universal Declaration on Human Rights has not yet been identified.
The Charter and Declaration made a promotion of human rights without full appreciation of
extent of penetration of Statehood that was involved. Right to Property and right to
participate was understood from a western perspective and not from developing states
perspective.

Apparel Export Promotion vs. A.K. Chopra 1999 (1) SCC 759:
“In cases involving violation of human rights, the courts must ever remain alive to the
international instruments and conventions and apply the same to a given case where there is
no inconsistency between the international norms and the domestic law occupying the field.”

Vishaka v State of Rajasthan (1997) 6 SCC 241

The judicial opinion in India as expressed in numerous recent judgments of the Supreme
Court of India demonstrates that the rules of international law and municipal law should be
construed harmoniously, and only when there is an inevitable conflict between these two laws
should municipal law prevail over international law.

UNIT – 3, 4, 5
DEVELOPMENT OF HUMAN RIGHTS LAW WITHIN UN STRUCTURE

Human rights are implemented within UN either by charter based bodies or by treaty based
committees . There are nine core international human rights treaties. 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 tenth 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.

There are two types of human rights monitoring mechanisms within the United Nations
system:
treaty-based bodies and charter-based bodies. The ten human rights Treaty Bodies, made up
of committees of independent experts, monitor implementation of the core international
human rights treaties.

15
 ADITYA JUNEJA

The charter-based bodies include the Human Rights Council, Special Procedures, the
Universal Periodic Review and Independent Investigations. UN Human Rights provides
expertise and support to all of the different mechanisms.

Treaty-based bodies

Derive their existence from provisions contained in a specific legal instrument;

Hold more narrow mandates: the set of issues codified in the legal instrument;
Address a limited audience: only those countries that have ratified the legal instrument; and
Base their decision-making on consensus. The treaty bodies are composed of independent
experts and meet to consider State parties' reports as well as individual complaints or
communications.
They may also publish general comments on human rights topics related to the treaties they
oversee. The treaty-based bodies tend to follow similar patterns of documentation.
Independent experts of recognized competence in human rights, who are nominated and
elected for fixed renewable terms of four years by State parties. The treaty bodies meet in
Geneva, Switzerland and receive support from the Human Rights Treaties Division of
OHCHR in Geneva.

General Assembly adopted a resolution, in 2014 on "Strengthening and enhancing the

effective functioning of the human rights treaty body system" (A/RES/68/268).
1. Reaffirming that the full and effective implementation of international human rights
instruments by States parties is of major importance for the efforts of the United Nations to
promote universal respect for and observance of human rights and fundamental freedoms.
2. Reaffirming the importance of the independence of the human rights treaty bodies
3. Reaffirming also that the independence and impartiality of members of the human rights
treaty bodies is essential for the performance of their duties and responsibilities in line with
the respective treaties,
4. States have a legal obligation under the international human rights treaties to which they
are party to periodically submit to the relevant human rights treaty bodies reports on the
measures they have taken to give effect to the provisions of the relevant treaties.

Main types of documents considered or issued by the Committee

The treaty based bodies consider State party reports, issues general comments, and can hold
general discussions. When certain State parties have made the necessary declaration
committee may consider individual complaints.
State parties reports
- Initial report within one year/two year of its entry into force for the State Party concerned
- Subsequent reports every five/four years
- Discusses the State's report and issued concluding observations

16
 ADITYA JUNEJA

General comments
- Issues general comments on topics related to the Convention
General discussions
- Organize a day of general discussion on a particular theme
- Meeting report may be included in the sessional report

In accordance with Rules 76 and 77 of its Rules of procedures, the Committee may decide to
prepare and adopt general comments on specific topics addressing aspects of the Covenant or
its Optional Protocols with a view to assisting States parties in fulfilling their obligations
under the Covenant and its Optional Protocols.

The Committee on the Elimination of Racial Discrimination (CERD) is the body of

independent experts that monitors implementation of the Convention on the Elimination of
All Forms of Racial Discrimination by its State parties. All States parties are obliged to
submit regular reports to the Committee on how the rights are being implemented. States
must report initially one year after acceding to the Convention and then every two years. The
Committee examines each report and addresses its concerns and recommendations to the
State party in the form of “concluding observations”.
In addition to the reporting procedure, the Convention establishes three other mechanisms
through which the Committee performs its monitoring functions:
- the early warning procedure;
- the examination of inter-state complaints; and
- the examination of individual complaints.

States parties to fulfil their obligations have had wide-ranging, positive results over the years.
These include:
Amendments to national constitutions to include provisions prohibiting racial discrimination;
passing of new laws to satisfy the requirements of the Convention;
Amendments to the law at the suggestion of CERD;
Making racial discrimination a punishable offence;
Legal guarantees against discrimination in justice, security, political rights, or access to
places intended for use by the general public;
Educational programmes.

Committee on Economic, Social and Cultural Rights (CESCR) is the body of 18 independent
experts that monitors implementation of the International Covenant on Economic, Social and
Cultural Rights by its States parties.
The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry
out the monitoring functions assigned to the United Nations Economic and Social Council
(ECOSOC) in Part IV of the Covenant. All States parties are obliged to submit regular reports
to the Committee on how economic, social and cultural rights are being implemented. States

17
 ADITYA JUNEJA

must report initially within two years of accepting the Covenant and thereafter every five
years. The Committee examines each report and addresses its concerns and recommendations
to the State party in the form of “concluding observations”

The Committee monitors the implementation of the Covenant and of the Optional Protocol by
State parties so that all those who are entitled to the rights in the Covenant can enjoy them in
full.
It seeks to:
- develop a constructive dialogue with State parties
- determine whether the Covenant’s norms are being applied in State parties
- assess how the implementation and enforcement of the Covenant could be improved.

The Committee on the Elimination of Discrimination against Women (CEDAW) is the body
of independent experts that monitors implementation of the Convention on the Elimination of
All Forms of Discrimination against Women.Adopted by the United Nations in 1979,
CEDAW is the most important human rights treaty for women. The CEDAW Committee
consists of 23 independent experts on women’s rights from around the world.

In accordance with the Optional Protocol to the Convention, the Committee is

mandated to:
1. receive communications from individuals or groups of individuals submitting claims of
violations of rights protected under the Convention to the Committee and
2. initiate inquiries into situations of grave or systematic violations of women’s rights. These
procedures are optional and are only available where the State concerned has accepted them.

The Committee also holds days of general discussion and formulates general
recommendations; these are suggestions and clarifications directed to States that concern
articles or themes in the Conventions.

The Committee against Torture (CAT) is the body of 10 independent experts that monitors
implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment by its States parties.
All States parties are obliged to submit regular reports to the Committee on how the rights are
being implemented. States must report initially one year after acceding to the Convention and
then every four years. The Committee examines each report and addresses its concerns and
recommendations to the State party in the form of "concluding observations".

The Committee on the Rights of the Child (CRC) is the body of 18 independent experts
that monitors implementation of the Convention on the Rights of the Child by its States
parties. It also monitors implementation of the Optional Protocols to the Convention, on
involvement of children in armed conflict and on the sale of children, child prostitution and
child pornography.

18
 ADITYA JUNEJA

All States parties are obliged to submit regular reports to the Committee on the
implementation of the Convention. States must submit an initial report two years after
acceding to the Convention and then periodic reports every five years. The Committee
examines each report and addresses its concerns and recommendations to the State party in
the form of “concluding observations”.

The Committee also reviews the initial reports which must be submitted by States who have
acceded to the first two Optional Protocols to the Convention, on involvement of children in
armed conflict and on sale of children, child prostitution and child pornography.

The Committee on the Protection of the Rights of All Migrant Workers and Members of
their Families (CMW) is the body of 14 independent experts that monitors implementation
of the International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families by its State parties. It held its first session in March 2004.
Its responsibilities include:
Examining reports from States parties, and making recommendations on the topic of migrant
workers and members of their families in that State (articles 73 and 74 of the Convention);
Organizing days of general discussion; Interpretations of the content of the substantive
provisions in the Convention (general comments) and publishing statements and information
or guidance notes on themes related to its mandate.

Migrant workers and their families often experience marginalization, xenophobia, and poor
living and working conditions. In serious cases, they suffer exploitation, expulsion, and risk
to life. The Committee monitors how States are implementing the Convention and protecting
the human rights of migrants.
The Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (SPT) is a new kind of treaty body in the United Nations human
rights system. It has a preventive mandate focused on a proactive approach to preventing
torture and ill treatment.
States that ratify the Optional Protocol to the Convention Against Torture (OPCAT) give the
SPT the right to visit their places of detention and examine the treatment of people held there.

The Protocol also obliges States to set up independent National Preventive Mechanisms
(NPMs) to examine the treatment of people in detention, make recommendations to
government authorities to strengthen protection against torture and comment on existing or
proposed legislation. The SPT assists and advises NPMs in their work.
Committee on the Rights of Persons with Disabilities is the body of 18 independent
experts which monitors the implementation of the Convention on the Rights of Persons with
Disabilities by the States parties.
All States parties submit regular reports to the Committee on how the rights enshrined in the
Convention are being implemented. States must report initially within two years of ratifying
the Convention and, thereafter, every four years (Article 35 of the Convention).

19
 ADITYA JUNEJA

The Committee examines each report and makes recommendations to strengthen the
implementation of the Convention in that State. It forwards these recommendations, in the
form of concluding observations, to the State party concerned.

The Optional Protocol (A/RES/61/106) which entered into force at the same time as the
Convention, also allows the Committee to:
1. Receive and examine individual complaints; and
2. Undertake inquiries in the case of reliable evidence of grave and systematic violations of
the Convention.

The Committee on Enforced Disappearances (CED) is the body of independent experts

which monitors the implementation of the Convention for the Protection of all Persons
against Enforced Disappearance by the States parties.
The Committee and its Secretariat work daily to support victims, civil society organizations,
National Human Rights Institutions and States to search for and locate disappeared persons,
eradicate, punish and prevent this crime, and repair the damage suffered by the victims.

The Committee on Enforced Disappearances (CED) is the body of independent experts which
monitors the implementation of the Convention by the States parties. Specifically, its
responsibilities include:
Examining reports from States parties, and making recommendations on the topic of enforced
disappearances in that State (article 29 of the Convention).
Registering requests for urgent action (article 30 of the Convention). Receiving individual
complaints from victims of a violation of the Convention by a State party (article 31 of the
Convention). Receiving communications in which a State party claims that another State
party is not fulfilling its obligations under the Convention; so-called inter-state
communications (article 32 of the Convention). The Committee meets in Geneva and holds
two sessions per year.

CHARTER BASED BODIES:

Charter bodies include, the Human Rights Council, Universal Periodic Review ,
Independent Investigation and Special Procedures.
The Human Rights Council is a forum empowered to prevent abuses, inequity and
discrimination, protect the most vulnerable, and expose perpetrators.
Special Procedures is the general name given to the mechanisms established 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 independent expert-or a
working group working on a voluntary basis.
In addition to it, SECURITY COUNCIL authorizing International Tribunal to prosecute
person responsible for serious human rights violations of international humanitarian law.
For example, the Security Council created a compensation commission to assist the

20
 ADITYA JUNEJA

victims of Iraqi invasion of Kuwait.

Charter-based bodies
Derive their establishment from provisions contained in the Charter of the United Nations.
Hold broad human rights mandates. Address an unlimited audience. Take action based on
majority voting
The Human Rights Council and its predecessor, the Commission on Human Rights, are called
"Charter-based" as they were established by resolutions of principal organs of the UN whose
authority flows from the UN Charter. The current Charter-based bodies are the Human
Rights Council and its subsidiaries, including the Universal Periodic Review Working
Group and the Advisory Committee.

The Human Rights Council is responsible for strengthening the promotion and protection of
human rights around the globe and for addressing situations of human rights violations and
making recommendations on them. Established by General Assembly resolution 60/251 of 15
March 2006
Meets in Geneva, in regular session three times annually and in special session as needed
Reports to the General Assembly
EXAMPLE: Resolution adopted by the Human Rights Council on 12 May 2022 S-34/1
ON The deteriorating human rights situation in Ukraine stemming from the Russian
aggression.

On 18 June 2007, one year after its first meeting, the Human Rights Council adopted its
"Institution-building package" (resolution 5/1) which details procedures, mechanisms and
structures that form the basis of its work. Among those mechanisms the following subsidiary
bodies directly report to the Human Rights Council:
- Universal Periodic Review Working Group.
- Advisory Committee.
- Complaint Procedure.

DRAWBACK OF HUMAN RIGHT COMMISSION

HUMAN RIGHT COUNCIL WAS ABLE TO ACHIEVE THE FOLLOWING WHICH

COMMISSION FAILED
Innovations
- In a landmark decision, the Council passed a resolution recognizing the human right to a
clean, healthy and sustainable environment for the first time.
- For the first time in its 15-year history, the Council:
- enabled delegates to vote remotely
attracted the highest number of dignitaries ever to speak at its sessions
supported the participation of 19 delegates from least developed countries and small island

21
 ADITYA JUNEJA

developing states
Also, for the first time, the Council held five special sessions in 2021 - again demonstrating
its effectiveness in responding to urgent global crises. These concerned:
Myanmar, the Occupied Palestinian Territory, and Israel, Afghanistan, Sudan, Ethiopia.

Activities
In 2021, the Council extended the mandates of 17 Special Procedures and investigative
bodies - and created seven new mandates:
- an accountability project on Sri Lanka
- a monitoring mission in Belarus
- a Commission of Inquiry on the Occupied Palestinian Territory, and Israel
- a Special Rapporteur for Afghanistan
- a racial justice body addressing systemic racism in law enforcement around the globe
- a Special Rapporteur on climate change
- an investigative body for Ethiopia
Throughout the year, the Council enabled some 260 civil society organizations to deliver
more than 900 statements.

The Council also established the following subsidiary expert mechanisms to provide the
Council with thematic expertise and forums providing a platform for dialogue and
cooperation. These bodies focus mainly on studies, research-based advice or best-practices.
They meet and report annually to the Council:
- Expert Mechanism on the Rights of Indigenous People
- Expert Mechanism on the Right to Development
- Forum on Minority Issues
- Social Forum
- Forum on Business and Human Rights
- Forum on Human Rights, Democracy and the Rule of Law
International Independent Expert Mechanism to Advance Racial Justice and Equality in Law
Enforcement.

The Council is made of 47 Member States, which are elected by the majority of members of
the General Assembly of the United Nations through direct and secret ballot. The General
Assembly takes into account the candidate States' contribution to the promotion and
protection of human rights, as well as their voluntary pledges and commitments in this
regard.
The Council's Membership is based on equitable geographical distribution. Seats are
distributed as follows:
- African States: 13 seats
- Asia-Pacific States: 13 seats
- Latin American and Caribbean States: 8 seats
- Western European and other States: 7 seats

22
 ADITYA JUNEJA

- Eastern European States: 6 seats

Members of the Council serve for a period of three years and are not eligible for immediate
re-election after serving two consecutive terms.

UNIVERSAL PERIODIC REVIEW

The United Nations General Assembly Resolution 60/251, which established the Human
Rights Council in 2006, also established the Universal Periodic Review (UPR) as a peer
review mechanism for the assessment and advancement of human rights in all 193 UN
Member States.
UPR reviews are formally conducted by the UPR Working Group of the Council which
comprises all 47 Council Member States. The UPR Working Group reviews UPR reports
in UPR Sessions three times per year in Geneva, with up to 14 countries undergoing review
per session. Each UPR is facilitated by a troika (group of three) of Council Member States,
but the UPR process is open to participation by all UN Member States whether or not elected
members of the Council, as well as to non-governmental stakeholders.

The UPR process is composed of the following steps:

- Preparation and submission of the written reports by the State, civil society, and the Office
of the High Commissioner for Human Rights which provide a foundation for the peer review.
- During the UPR Session, the reports are presented orally, followed by an interactive
dialogue where UN Member States make comments and recommendations to the State under
review.
The troika prepares a summary report of the comments and recommendations; the State may
indicate its acceptance or rejection of the recommendations.
- The final outcome report is adopted by the Council and both States and civil society
organizations with ECOSOC consultative status are permitted to deliver oral comments on
the UPR outcome report.
- The State reports on its implementation of the recommendations during the next UPR cycle.

In the first UPR cycle, States were reviewed each year over a four-year period, while in the
second UPR cycle, approximately 42 States were reviewed each year over a four-and-a-half-
year period.

The increased cycle duration was based on feedback gathered from States and non-
government actors, with the objective that fewer States would be reviewed each UPR
Session, but more time would be allocated to each review. The first cycle concluded in
October 2011, and a second cycle began in March 2012 and concluded in November 2016.
The third cycle began in February 2017 and will conclude in 2021

23
 ADITYA JUNEJA

DRAWBACK OF UPR

There was a significant imbalance in attention given to different health-related issues,

including those that are global health priorities. While gender-based violence and maternal
and child health were frequently addressed, there was virtually no attention to other issues
that are prominent on the global health agenda, including critical issues of concern in many
countries, such as water, sanitation and hygiene; HIV/AIDS; adolescent health; mental
health; and communicable and non-communicable diseases.
In addition, many recommendations were written in vague and open-ended terms, which
makes an appropriate State response difficult to measure and ultimately assess.

It is through the implementation of recommendations that States can give meaning to their
human rights commitments, including by giving effect to remedies to correct human rights
abuses, thereby preventing their re-currence. Implementation of UPR recommendations is
voluntary. States may “accept” or “note” recommendations, where acceptance indicates a
voluntary pledge to implementation.
There is a need for more practically-oriented recommendations, greater engagement of a wide
breadth health stakeholders, and more rigorous implementation of recommendations are
works-in-progress, with great unrealized potential.

24
 ADITYA JUNEJA

25
UNIT 6
HUMAN RIGHTS LAW
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS.
(Adopted by the General Assembly of the United Nations on 19 December 1966 , enforced on 1976)
• Article 1- Self-determination – including political status and economic and cultural development.
• Article 2- Ensure rights without discrimination.
• Article 3 - Ensure equal enjoyment of treaty rights between men and women.
• Article 4- Derogation of rights to be limited to specific circumstances, certain rights may not be
derogated from and derogation must be consistent with certain rules.
• Article 5 - Covenant may not be interpreted in a way that destroys rights ensured in the covenant.
• Article 6- The right to life, which shall be protected in law.
• Article 7- The right to be free from inhuman or degrading treatment or punishment.
• Article 8- The freedom from slavery and servitude.
• Article 9- The right to liberty and freedom from arbitrary arrest or detention.
• Article 10- People deprived of their liberty shall be treated with humanity.
• Article 12- The right to liberty and freedom of movement
• Article 14- The right to equality before the law; the right to be presumed innocent until proven
guilty and to have a fair and public hearing.
• Article 15- No one can be held for an offence that was not a crime at the time it was committed.
• Article 16- The right to be recognised as a person before the law.
• Article 17- The right privacy and its protection by the law.
• Article 18- The freedom of thought, conscience and religion.
• Article 19- The freedom of opinion and expression
• Article 20- Prohibition on propaganda advocating war or national, racial or religious hatred.
• Article 21- The right to peaceful assembly.
• Article 22- The right to freedom of association and to join a trade union.
• Article 23- The right to marry and found a family and equal rights between men and women within
the marriage at its dissolution.
• Article 24- The rights for children (status as minors, nationality, registration and name.
• Article 25- The right to participate in public affairs, to vote and to be elected and access to public
service.
• Article 26- Everyone is equal before the law and has a right to legal protection “of the law” without
discrimination.
• Article 27- The right, for members of religious, ethnic or linguistic minorities, to enjoy their culture,
practice their religion and use their language.
• Article 28- There shall be established a Human Rights Committee (hereafter referred to in the
present Covenant as the Committee). It shall consist of eighteen members and shall carry out the
functions hereinafter provided.
• ARTICLE 2
- It obliges all the State Parties to respect all the provisions of Covenant.
- The precise substance is since most of the clauses contains explicit limitation clause in interest
of public order, national security or public safety, hence there is obligation on State not to
interfere.
- In addition to these limitation clause, States have means to escape obligation through Article 4
or by entering reservation.
- In principle, Article 2 deals with means to enact domestic laws and to provide effective judicial
remedies against civil rights violations.
- For example, right to habeas corpus, right to appeal in criminal court, right to expel aliens only
after proper court proceedings etc.

• ARTICLE 6
- The Right to Life is the Supreme Right from which no derogation is permitted, even in
time of public emergency or at time of War.
- Earlier it was General Comment 6 on Article 6 clearly states that States have the Supreme
Duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary
loss of life for the safeguarding right to life. Now it is general comment 36.
- Deprivation of life involves a deliberate or otherwise foreseeable and preventable life-
terminating harm or injury, caused by an act or omission which no state can afford to do
- The protection against arbitrary deprivation of life which is explicitly required by the third
sentence of Article 6 (1) is of paramount importance.
- The States parties should take measures not only to prevent and punish deprivation of life
by criminal acts, but also to prevent arbitrary killing by their own security forces. (ISHRAT
JAHAN CASE, SOHARBBUDIN CASE; BATLA HOUSE ENCOUNTER)
- Therefore, the law must strictly control and limit the circumstances in which a person may
be deprived of his life by such authorities.
- Article 6 recognizes and protects the right to life of all human beings. It is the supreme
right from which no derogation is permitted even in situations of armed conflict and other
public emergencies. The right to life has crucial importance both for individuals and for
society as a whole. It is most precious for its own sake as a right that inheres in every
human being, but it also constitutes a fundamental right, whose effective protection is the
prerequisite for the enjoyment of all other human rights and whose content can be informed
and infused by other human rights.
 - Paragraph 1 of article 6 of the Covenant provides that no one shall be arbitrarily deprived
of his life and that the right shall be protected by law. It lays the foundation for the
obligation of States parties to respect and to ensure the right to life, to give effect to it
through legislative and other measures, and to provide effective remedies and reparation to
all victims of violations of the right to life.
- Paragraphs 2, 4, 5, and 6 of article 6 of the Covenant set out specific safeguards for ensuring
that in countries that have not yet abolished the death penalty, it shall be applied only in
the most exceptional cases, for the most serious crimes and under the strictest limits.
- The duty to protect life also implies that States parties should take appropriate measures to
address the general conditions in society that may give rise to direct threats to life or prevent
individuals from enjoying their right to life with dignity.
- These general conditions may include high levels of criminal and gun violence, pervasive
traffic and industrial accidents, degradation of the environment, deprivation of indigenous
peoples’ land, territories and resources, the prevalence of life-threatening diseases, such as
AIDS, tuberculosis and malaria, extensive substance abuse, widespread hunger and
malnutrition and extreme poverty and homelessness.
- The measures called for to address adequate conditions for protecting the right to life
include, where necessary, measures designed to ensure access without delay by individuals
to essential goods and services such as food, water, shelter, health care.
- The duty to take positive measures to protect the right to life derives from the general duty
to ensure the rights recognized in the Covenant, which is articulated in article 2 (1) when
read in conjunction with article 6, as well as from the specific duty to protect the right to
life by law, which is articulated in the second sentence of article 6.
- States parties are thus under a due diligence obligation to take reasonable, positive
measures that do not impose disproportionate burdens on them in response to reasonably
foreseeable threats to life originating from private persons and entities whose conduct is
not attributable to the State.
- Hence, States parties are obliged to take adequate preventive measures in order to protect
individuals against reasonably foreseen threats of being murdered or killed by criminals
and organized crime or militia groups, including armed or terrorist groups.
McCann and Others v United Kingdom (21 ECHR 97 GC)
- Intelligence suggested a team, involved in terrorist activities, were planning a bombing in Gibraltar.
During surveillance, the team crossed the border from Spain with no resistance from the authorities
and subsequently parked a car in a crowded place.
- Due to their past activities, intelligence suggested the car was rigged with explosives with the
suspects holding the remote detonator. The military forces, in accordance with their training, shot
and killed the suspects which at the time was justified by the teams to be in response to the suspects
reaching for what they believed were the detonators.
- At the time of the shootings the suspects had neither a detonator nor any explosives. A car was
however found registered under one of the suspects names and it appeared that the suspects had
parked their car to save a space for the actual car containing the explosives.
- The court held that military forces would be liable under Article 2 of ECHR which is similar on
lines of Article 6 of ICCPR. Even when dealing with dangerous terrorist, operations must be
organized in such a manner that lethal force should be used only in extreme cases. If the directions
is not followed then compensation would be paid by forces also.
- Another example could be Of State Sponsored Disappearance. In early 1990’s in Algeria , it is
alleged that there were around 7000 forced disappearance by a radical group sponsored by State.
Military Security agency, routinely denied detainees access to lawyers and did not inform families
promptly about detainees' whereabouts and legal status.
- It was only after UN intervention that the Algerian authorities had to establish an independent
commission on "disappearances" that empowered to compel both the testimony of state agents and
the disclosure of documents.
- Article 6 recognizes and protects the right to life of all human beings. It is the supreme right from
which no derogation is permitted even in situations of armed conflict and other public emergencies.
- The right to life has crucial importance both for individuals and for society as a whole.
- It is most precious for its own sake as a right that is inherent in every human being, but it also
constitutes a fundamental right, whose effective protection is the prerequisite for the enjoyment of
all other human rights and whose content can be informed and infused by other human rights.

• CASE STUDIES
Bousroual v. Algeria, Mustapha Ferhati case; Mohamed Meabiou
Man arrested Wednesday, brought home Thursday for a police search, then "disappears"
- Under no circumstances should families of victims of enforced disappearance be obliged to declare
them dead in order to be eligible for reparation.(Prutina v. Bosnia and Herzegovina)
- States parties must provide safe access to abortion to protect the life and health of pregnant women,
and in situations in which carrying a pregnancy to term would cause the woman substantial pain or
suffering, most notably where the pregnancy is the result of rape or incest or when the foetus suffers
from fatal impairment.
- Loss of life occurring in custody, in unnatural circumstances, creates a presumption of arbitrary
deprivation of life by State authorities, which can only be rebutted on the basis of a proper
investigation that establishes the State’s compliance with its obligations under article 6
- Similarly in India, since the beginning of Insurgency, several persons have become victims of
enforced disappearance making their wife to earn the title of half widow in Kashmir Valley. Though
the numbers have significantly dropped, as India being a signatory to ICCPR, yet several cases still
remains unsolved.
- Right to life can also be viewed in perspective of clear trend in abolition of death squad in
Yugoslavia, Peru etc; no death penalty to pregnant women or minors; reduce infant mortality;
increase life expectancy; right to abortion; elimination of malnutrion etc.

• Article 7 & Article 10

- Deals with the barbaric violation of the right to physical and mental integrity.
- Examples of torture can be hooding detainees; depriving them of sleep, food and water; making
them stand on their toes for a long period of time, electroshock, extended hanging.
- This principle also covers Non Refoulment principle. No State shall expel or return a refugee in
any manner whatsoever to the frontiers of territories where his life or freedom would be threatened
on account of torture
- Article 7 ICCPR reads: “No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his free consent to medical
or scientific experimentation.”
- Article 10(1) ICCPR states: “All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person.”
- While it forbids them in absolute terms, Article 7 does not contain a definition of the prohibited
acts. In its General Comment on Article 7, the HRC stated that it did not consider it necessary to
draw up a list of prohibited acts or to establish sharp distinctions between torture and the other
forms of ill.
- The HRC has indicated that the assessment of whether particular treatment constitutes a violation
of Article 7 “depends on all circumstances of the case, such as the duration and manner of the
treatment, its physical or mental effects as well as the sex, age and state of health of the victim.”
- The second sentence of Article 7 ensures that the prohibition is understood to include any medical
or scientific experimentation conducted without the free consent of the subject.
- In ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09, The facts of the case
concerned an Afghan asylum seeker who fled Kabul in 2008, entered the European Union through
Greece and travelled on to Belgium where he applied for asylum.
- According to the Dublin rules, Greece was held to be the responsible Member State for the
examination of his asylum application. Therefore the Belgian authorities transferred him there in
June 2009 where he faced detention in insalubrious conditions before living on the streets without
any material support.
- At issue in the judgment was the risk of violating the right to life, prohibition of inhuman or
degrading treatment or punishment and the right to an effective remedy.
- The Court held that the Belgian authorities knew or ought to have known that the applicant had no
guarantee that the Greek authorities would seriously examine his asylum application. The Belgian
authorities had the means of preventing his transfer to Greece.
- The Court recapitulated the general principles concerning detention that requires the State to ensure
that detention conditions are compatible with respect for human dignity, that the manner & method
of the execution of the measure do not subject the detainees to torture.
- Where relevant, the investigation should include an autopsy of the victim’s body, whenever
possible, in the presence of a representative of the victim’s relatives.(Kawas-Fernández v.
Honduras)
- Article 10 complements, for those who have been deprived of their liberty, the prohibition of torture
and ill-treatment. Not only may detainees not be subjected to treatment contrary to Article 7, but
they also have a positive right to be treated with respect.
- This provision means that detainees may not be “subjected to any hardship or constraint other than
that resulting from the deprivation of liberty; respect for the dignity of such persons must be
guaranteed under the same conditions as for that of free persons.”
- It therefore covers forms of treatment which would not be sufficiently severe to qualify as cruel,
inhuman or degrading under Article 7.
- From the jurisprudence of the HRC, it seems that the Committee tends to apply Article 10(1) to
general conditions of detention, reserving Article 7 for situations where an individual is subjected
to specific attacks on his or her personal integrity.
- In Kennedy v Trinidad and Tobago, for example, the Committee considered that beatings to which
the author was subjected while in police custody amounted to a violation of Article 7, whereas the
general conditions under which he was held, which included overcrowding while on remand and
solitary confinement while on death row, violated Article 10(1).
- IN Mukong v Cameroon, the fact that the author was “singled out for exceptionally harsh and
degrading treatment,” including being “detained incommunicado,… threatened with torture and
death and intimidated, deprived of food, and kept locked in his cell for several days on end without
the possibility of recreation” led the Committee to find a violation of Article 7.
- It may be argued that a violation of Article 7 in respect of a person deprived of liberty automatically
entails a violation of Article 10(1). In Linton v Jamaica, for example, the Committee considered
that “The physical abuse inflicted on the author…, the mock execution set up by prison warders
and the denial of adequate medical care after the injuries sustained in the aborted escape attempt…
constitute cruel and inhuman treatment within the meaning of article 7 and, therefore, also entail a
violation of article 10, paragraph 1, of the Covenant.”29
- While general trends may be detected from the jurisprudence, there remains considerable overlap
in the Committee’s application of Articles 7 and 10(1).
- In some cases, general conditions of detention have been so severe that they have reached the
threshold of severity for a violation of Article 7, and in others, breaches of Article 10(1) have been
found in cases of specific attacks.

• Article 8
- Slavery is the most extreme expression that directly attacks human dignity.
- ICCPR clearly states that slavery violates the right of a person not only under Article 8 but also
under Article 16.
- Examples of this could be forced prostitution, child soldiers, bride sales in India, trafficking humans
etc.
- This Article vague formation over the issue of consent has made its application difficult. For
examples, it was argued that voluntarily joining army as minors, giving aid to war torn areas are
those grey areas where it is difficult to view whether it is slavery or not.

• Article 9
- Article 9 as such do not prohibit deprivation of personal liberty, but only establish certain
procedural guarantees and minimum standards against arbitrary arrest and deprivation.
- It also does not deal with the term liberty in narrow sense, but it has to be interpreted in
both in relation to general sense as well as in particular.
- Narrow sense connotes when liberty is interpreted only in sense of freedom of bodily
movement (eg. Freedom from forceful detention). This can be traced in Indian Constitution
under Article 19.
- However, when we interpret Article 9 in broad terms then it will cover arbitrary deprivation
not only under Article 19 and Article 21(i.e particular in nature which follows Rule of Law.)
- General comment 35 and General Comment no. 8 deals with Article 9.
- Liberty of person concerns freedom from confinement of the body, not a general freedom
of action. Article 9 guarantees those rights to everyone.
- “Everyone” includes, among others, girls and boys, soldiers, persons with disabilities,
LGBT, aliens, refugees and asylum seekers, stateless persons, migrant workers, persons
convicted of crime, and persons who have engaged in terrorist activity.
- Article 9 requires that in criminal cases any person arrested or detained has to be brought
“promptly” before a judge or other officer authorized by law to exercise judicial power.
- While the exact meaning of “promptly” may vary depending on objective circumstances,
delays should not exceed a few days from the time of arrest.
- In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual
and to prepare for the judicial hearing; any delay longer than 48 hours must remain
absolutely exceptional and be justified under the circumstances. Longer detention in the
custody of law enforcement officials without judicial control unnecessarily increases the
risk of ill treatment.
 - Article 9 also deals with the total length of detention pending trial. Pre-trial detention
should be an exception and as short as possible.
- For example, In india, In the case Katar Singh v. State of Punjab it was declared that right
to speedy trial is an essential part of fundamental right to life and liberty. In the case Abdul
Rahman Antulay v. R.S. Nayak, the bench declared certain aspects and guidelines
regarding the speedy trial and quashing of cases should depend upon nature of the case.
- Article 9 also deals with preventive detention if used, for reasons of public security, it must
be not be arbitrary, and must be based on grounds and procedures established by law.
- Criminal charges brought in such cases, Article 14 must also be granted.
ARTICLE 10
- It establishes an obligation to ensure humane prison conditions by means of positive action,
regardless of economic difficulties.
- In Parkanyi v. Hungary, In 1980, the complainant was a director of the company. He alleged that
due to connivance of local authorities he was arrested and false evidence was produced before the
court. He claims to be the victim of violations by Hungary of Articles 9, 10 and 11 of the
International Covenant on Civil and Political Rights.
- The author contends that his arrest and detention of the police of was arbitrary,and conditions of
his pre-trial detention were deplorable.
- In this context, he notes that detainees in the police lock-up, including himself, were dressed in
rags, and that he was not able to retrieve his own clothes for an entire week. Only five minutes were
allowed for basic hygiene in the morning, and a shower could be taken only once a week; similarly,
a mere five minutes of recreation per day were allowed, which consisted of a walk in an open place
about 20 square metres in size, against the walls of which warders frequently urinated. Meals were
wholly inadequate and it exposed him to continued mental stress.
- The Human Right Committee passed the judgment in favour of complainant as it was a gross
violation of Article 10.

• ARTICLE 14
- In determination of any criminal charge, there is an obligation to free and fair trial by a
competent, independent tribunals.
- According Human Right Committee, The fair trial principle means :
Equality of arms
Respect for principle of adversary proceedings
Preclusion of ex officio reformation in pejus
Expeditious procedure
- The right to adversarial proceedings “means in principle the opportunity for the parties to
a criminal or civil trial to have knowledge of and comment on ALL EVIDENCE
ADDUCED or OBSERVATIONS FILED.
- The most important element of the prohibition of ex officio reformation in pejus that it is
a legal guarantee for the defence to be able to file an appeal without the risk that a judgment
might be altered.
- Equality arms length means both the parties should be given an opportunity to present their
cases.

• Cagas v. Philippines
- On 23 June 1992, the police of Philippines, found the bodies of six women in the house of Dr.
Dolores Arevalo, one of the victims. Their hands had been bound and their heads smashed.
- The investigation revealed that murder could have been done by Mr. Cagas and two of his
employees. According to the investigation, Mr. Cagas was a supplier of medicines in a hospital
where Dr. Arevalo was appointed Chief of Hospital sometime before the incident. It was also
reported that Dr. Arevalo refused to purchase medical supplies from Mr. Cagas.
- The issues raised under articles 9 and 14 of the Covenant contended that his arrest was arbitrary,
he was subject to inhumane treatment and he was not given a chance to prove his innocence.
- In the present case, the State party is of the opinion that although bail was denied, they cannot deny
the right to be presumed innocent. The principle of such a detention does not detract from the
essence of due process of law.

• Article 12(Right To Movement) & Article 13( Protection Against Arbitrary Expulsion)
- In view of increasing tourism, migration and xenophobia(dislike of people by other countries),
Article 12 and 13 have become very important.
- International Law does not grant a general right to enter into any one country. It is restricted to the
laws within the territory of the state.
- However, the state has no right to violate the right to freedom of movement arbitrarily.
Unreasonable restrictions by political parties should not be allowed.
- For example, right to have passport.
- Article 17 (right to privacy)
Forced medical treatment (N.D. Tiwari case where the a person was forced to undergo paternity
test )
Brainwashing with psychoactive drugs
Gender appearance
Protection of one’s identity (Lawrence v Texas where in it was held that right to protect sexual
identity of the person s the fundamental aspect of privacy)

• MISCELLANEOUS ISSUES UNDER ICCPR

- Right to Freedom of religion is stated under Article 18.
- The Human Rights Committee has made extensive comments in its General Comment No.
22.
- The Committee observes that the freedom to "have or to adopt" a religion necessarily
entails the freedom to choose a religion, including the right to replace one's current religion
or belief with another or to adopt atheistic views.
EXAMPLES
- In Eweida and Others v UK, 25 a clash between, the aggreived party and the
respondent where the complainant refused to perform those parts of their duties which
involved providing a service to same-gender couples, due to their Christian belief that
homosexuality is against God’s law .
- The Human Right Committee considered that the respondent has to provide its
services without discrimination. The Court considered that the right not to be
discriminated against on the ground of sexual orientation is also protected under the
 Convention and that a difference in treatment on this ground requires reasonable
justification.
- Other examples could be prohibition on refusal of blood transfusion by jews, having a
right to belief in the new age breed of religion like scientology etc.
- ICCPR also guarantees Political rights such as right to vote under Article 25 . This
includes states refraining from interfering with free and fair elections, illegally
distributing freebies to the potential voters, observance of secret ballot.
- Article 26 states that 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 persons 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.
- In Zwaan–de Vries v The Netherlands, the complainant was employed for 2 years
from 1977 to 1979. thereafter, due to unemployment she was granted certain benefit
under Unemployment Benefit Act. However, after marriage this benefit was withheld
on the ground that married unemployed women are disentitle to claim any benefit. This
rule was not applicable on married men. Decide?
- It was held that Article 26 when invoked obligates the state government to take
progressive steps to eliminate any discriminatory practices. In this case, even though
the committee was of opinion that the practice was discriminatory which did not allow
married women to entail unemployment benefits, yet since the state has taken positive
steps to eliminate that discriminatory practice, so appropriate remedy should be given
- The First Optional Protocol to the International Covenant on Civil and Political
Rights establishes an individual complaints mechanism for the ICCPR Parties agree to
recognise the competence of the UN Human Rights Committee to consider complaints
from individuals who claim their rights under the Covenant have been violated.
- Complainants must have exhausted all domestic remedies, and anonymous complaints
are not permitted. The Committee must bring complaints to the attention of the relevant
party, which must respond within six months.
- First Optional Protocol has 14 articles
- The Second Optional Protocol to the International Covenant on Civil and Political
Rights, aiming at the abolition of the death penalty is a side agreement to
the International Covenant on Civil and Political Rights. It was created on 15
December 1989 and entered into force on 11 July 1991. As of September 2016, the
Optional Protocol has 83 states parties
- The Optional Protocol commits its members to the abolition of the death penalty within
their borders, though it allows parties to make a reservation allowing execution "in
time of war pursuant to a conviction for a most serious crime committed during
wartime".
- Second Optional Protocol has 11 Articles
Human Rights Committee
- It is the United Nations human rights treaty body responsible for overseeing implementation of the
International Covenant on Civil and Political Rights (ICCPR) through its consideration of State
reports, individual complaints, and inter-State complaints, and its preparation of general comments,
substantive statements, and general discussions on topics addressed in the ICCPR.
- The Human Rights Committee consists of 18 independent experts who are elected for a term of
four years by States Parties to the ICCPR. See ICCPR, arts. 28, 32. Each member must be a national
of a State Party to the ICCPR, of high moral character, and have recognized competence in the field
of international human rights. See ICCPR, art. 28. No more than one national of a State can be
included in the Committee.
- The Human Rights Committee works on a part-time basis and makes decisions during its sessions,
generally held three times per year in either Geneva, Switzerland or New York, United States of
America. State Reporting
- One year after the ICCPR’s entry into force, each State Party must submit a report to the Human
Rights Committee detailing the status of its implementation of the ICCPR’s provisions. After
the initial report, a State will submit periodic reports when the Bureau of the Human Rights
Committee requests them. Historically, the first step in the Human Rights Committee’s review of
periodic State reports has been the State’s submission of its report addressing the advances made
since the previous reporting cycle, after which the Committee would adopt a list of issues to
identify the topics it most wanted to discuss during a constructive dialogue with the State. On the
basis of the reports and replies to the list of issues submitted by the State and civil society, the
Committee would then prepare its concluding observations.
- The Human Rights Committee has adopted a simplified reporting procedure, also referred to as
“list of issues prior to reporting.” The first step of this procedure is that the Committee prepares the
list of issues, to which the State responds. In 2020, the Committee moved to an “opt-out” model of
the simplified reporting procedure, meaning that the State will respond to the Committee’s list of
issue – rather than first preparing its own report – unless the State informs the Committee that it
wants to use the traditional reporting procedure.
- The Committee has also agreed to limit the number of questions in each list of issues to 25 questions
and has moved to a predictable review cycle based on an eight-year cycle of review, which will
include a five-year review process and a three-year interval after one review process
- Whether the list of issues is adopted before or after the State submits its report, a Country Report
Task Force of between four and six members takes primary responsibility for creating the list. A
designed individual member of the Task Force, the “country rapporteur,” is responsible for
overseeing the drafting of the list of issues and the Task Force members are then charged with
taking the lead on specific questions.
- Following the submission of a State report, the Human Rights Committee engages in an in-
person constructive dialogue with representatives of the State party about the list of issues and the
contents of the State and civil society reports submitted. The members of the Country Task Force
responsible for preparing the list of issues generally have priority when asking questions of the
State party representatives
- The last phase of the process is for the Committee to draft and adopt concluding observations, a
document which includes: an introduction, positive aspects, factors and difficulties impeding the
ICCPR’s implementation, principal subjects of concern, and suggestions and recommendations. A
provisional due date for the State party’s next periodic report is also given. The Committee will
implement a follow-up procedure for two to four recommendations in its concluding observations
for immediate implementation within one year.
• In order to submit an individual complaint, the model complaint form may be used to provide:
(1) basic information,
(2) the State party to which the complaint is directed against and the rights set out in the ICCPR
that have been alleged to be violated,
(3) steps taken to exhaust domestic remedies,
(4) a chronological list of facts on which the complaint is based, and
(5) a checklist of supporting documents, including copies of complaints or decisions before
domestic courts and corroborating evidence
• Inter-State Complaints
Article 41 of the ICCPR provides a mechanism for States to complain about violations of the
ICCPR made by another State. See ICCPR, art. 41. Both States concerned must have made
declarations accepting this procedure, or the complaint will not be considered. This procedure
for inter-State complaints, however, has never been used.
• Urgent Interventions
Early warning measures were used in the 1990s when the Human Rights Committee asked
several States (Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Burundi,
Angola, Haiti, Rwanda, and Nigeria) either to present their overdue reports without delay or to
prepare ad hoc reports on specific issues. The Bureau of the Human Rights Committee
discussed the possibility of reviving the urgent procedure mechanism in March of 2004, but
has not yet done so as of 2013.
• Complaints of Systematic Violations (Inquiry Procedures)
The Human Rights Committee does not have a system in place for initiating inquiries regarding
allegations of serious or systematic violations of the ICCPR.
• Open Letters and Statements
The Human Rights Committee will also, infrequently, make substantive statements, similar to
pronouncements or press releases, regarding State practices or human rights conditions of
concern, or commenting on developments within the UN human rights system.
• Thematic Discussions and Conferences
 The Human Rights Committee may also host general discussions to solicit input from other
UN agencies, national human rights institutions, NGOs, and interested civil society
stakeholders on topics of interest. As of January 2020, the Human Rights Committee had
organized three general discussions.

• In July 2020, the Human Rights Committee published General Comment 37 (GC 37) on the right
of peaceful assembly, a right enshrined in Article 21 of the International Covenant on Civil and
Political Rights. Article 21 provides that "the right of peaceful assembly shall be recognized," and
allows limited circumstances in which it can be restricted. However, organizers, protesters,
governments, law enforcement and members of the public often clash over how the right is
exercised, and how it can be limited.
The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on
Civil and Political Rights
• The abuse of applicable provisions allowing governments to limit and derogate from certain rights
contained in the International Covenant on Civil and Political Rights has resulted in the need for a
closer examination of the conditions and grounds for permissible limitations and derogations in
order to achieve an effective implementation of the rule of law.
• The United Nations General Assembly has frequently emphasized the importance of a uniform
interpretation of limitations on rights enunciated in the Covenant.
• With this in mind, the AAICJ initiated a colloquium composed of 31 distinguished experts in
international law, held at Siracusa, Italy, in the Spring of 1984.
The participants examined the limitation and derogation provisions in the Covenant, seeking to
identify:
a. Legitimate objectives;
b. the general principles of interpretation which govern their imposition and application; and
c. some of the main features of the grounds for limitation or derogation

A. General Interpretative Principles Relating to the Justification of Limitations

B. Interpretative Principles Relating to Specific Limitation Clauses
1. "prescribed by law"
2. "in a democratic society"
3. "public order (ordre public)"
4. "public health"
5. "public morals"
6. "national security"
7. "public safety"
8. "rights and freedoms of others," or "rights and reputations of others"
9. "restrictions on public trial"
10. Derogations in a Public Emergency
11. "Public Emergency Which Threatens the Life of the Nation“
12. Non-Derogable Rights

• The margin of appreciation (or margin of state discretion) is a legal doctrine with a wide scope
in international human rights law.
• It was developed by the European Court of Human Rights to judge whether a state party to
the European Convention on Human Rights should be sanctioned for limiting the enjoyment of
rights. The doctrine allows the court to reconcile practical differences in implementing the articles
of the convention.
• Such differences create a limited right for contracting parties "to derogate from the obligations laid
down in the Convention". The doctrine also reinforces the role of the European Convention as a
supervisory framework for human rights. In applying that discretion, the court's judges must take
into account differences between domestic laws of the contracting parties as they relate to substance
and procedure.
• The margin of appreciation doctrine contains concepts that are analogous to the principle
of subsidiarity, which occurs in the unrelated field of EU law. The purposes of the margin of
appreciation are to balance individual rights with national interests and to resolve any potential
conflicts. It has been suggested that the European Court should generally refer to the State's
decision, as it is an international court, instead of a bill of rights