Human Rights:
Major Landmarks
- Universal Declaration of Human Rights
- Two International Conventions
- Convention on the Rights of the Child
- Convention on the
Elimination of All Forms of Discrimination Against
Women
Three Generation of Human rights: As
defined by Karel Vasak
a) Civil
and Political rights
b) Economic,
Social and Cultural Rights
c) Group
rights or solidarity- such as right to development, right to environment.
Q. 1. Discuss the achievements
of the covenants regarded as the landmarks in the evolution of Human Rights.
UNIVERSAL DECLARATION OF HUMAN RIGHTS:
On December 10, 1948, the U.N. General Assembly adopted and proclaimed the Universal Declaration of Human Rights (UDHR). The Assembly appealed to all member countries to take institutional efforts to educate and communicate their people the text of U.D.H.R. without distinction and any consideration.
The provisions
of U.D.H.R. are in the forms of Rights, Duties and Limitations. They can be
classified into four categories.
1 Human Rights of All Persons
Article 1 & 2 of the UDHR
confirms freedom and equality of all human
beings with respect to dignity and rights without distinction of any kind such
as race, colour, sex, language, religion, political and other opinion, national
or social origin, property, birth or other status even political,
jurisdictional or international status of the country. While declaring its
faith in the reason and conscience of the human beings it expects the spirit of
brotherhood from all.
2 Civil and Political Rights
From Article 3 to Article 21 it guarantees Right to
life, liberty and security of person, Freedom from slavery, from torture, Right
to recognition everywhere as person before law, Equal protection of law,
Effective remedy for violation of FRTs., Protection from arbitrary arrest.,
Fair trial and public hearing by independent and impartial tribunal, The
presumption of innocence until proved guilty,
No arbitrary interference with privacy, Freedom of movement, residence,
Right to leave his country or return back, Rt. to nationality, no one can be
arbitrarily deprived of his nationality. to marry and form a family, to own
property alone as well as in association with others, to freedom of thought,
conscience and religion, of opinion and expression, freedom of peaceful
assembly and association, to participate in the govt. and equal access to
public service.
3 Economic, social and cultural rights.
From Article 22 to Article 27 it
guarantees, Right to social security, to work, equal pay for equal work, to
rest and leisure, limited working hours, with pay holidays, Adequate standard
of living, Right to education, to freely participate in the cultural life,
protection of moral and material interest.
4 Duties and Limitations
Apart from the list of rights the
UDHR in it article 28 to 30 also have provisions regarding duties and
limitations of persons as well as states regarding the enjoyment of the rights
guaranteed in the UDHR. These are, everyone is entitled to social and economic
order in which Rights and freedoms are realized, Rights will be limited by law
in the interest of the protection of others rights. And duty of state not to act
in a manner which may lead to the destruction of rights.
These provisions are not legally
enforceable rights and not legally binding on the member states. Despite of
this limitation they are used as a standard of conduct and as a basis for
appeals in urging governments to take measures to observe Human Rights. Numbers
of global and regional treaties has been prepared that transform universal
declaration into international conventional law. Further the domestic law of
many states has shown the marked influence of the UDHR.
The limitation
that UDHR operated as a statement of ideals, which was not of the nature of a
legally binding covenant and had no machinery for its enforcement, was sought
to be removed by the UN General Assembly by adopting in December, 1966, two
covenants for the purpose of observance of human rights-
(A)
The Covenant
on Civil and Political Rights;
(B)
The Covenant
on Economics, Social and Cultural Rights.
The two
covenants came into force in December, 1976. Those covenants are legally
binding on the ratifying states who are obliged to adopt legislative measures
to implement the covenant to ensure the rights proclaimed in the covenant so
that, though the covenant itself is not part of the domestic law of the
ratifying State, the rights embodied in the relevant legislation are
enforceable through the domestic courts.
Enforcement procedures: These covenants contain more detail versions of the rights articulated in UDHR. The chief interest in the covenants contains enforcement procedures to ensure that states ratifying them fulfill their obligation in good faith. Due to these covenants UDHR has become binding on all the states. In addition each covenant contains a reporting procedure i.e. member states must give periodical report of the measures they have adopted to enforce it and the progress made in the enjoyment of those rights.
Provision for interstate complaints: Civil and Political covenant also provides for interstate complaints procedure i.e. the state can make complaints against another state (both should be party to the covenant) regarding the failure in fulfilling the obligations. The complaint is made to the Human Rights Committee under the covenant. However both the states should recognize the competence of the committee to here the complaints.
Optional protocol of the civil and political covenant. - It contains an informal complaint procedure whereby an individual may complaint to the Human Rights committee that a state party to the optional protocol has violated the rights guaranteed to him under the covenant. The covenant on eco, social, and cultural rights was adopted on 3rd Jan, 1976 and the covenant on civil and political rights was adopted on 23rd March, 1976. Both the covenants are ratified by more than 130 members.
(A)
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
(ICCPR):
The ICCPR runs in to 53 Articles. It can be classified into four categories.
1
Civil Human Rights
All the civil human rights are
recognized and guaranteed to all persons, citizens as well as aliens alike. Some
of the important civil human rights are, Right to Life, Right Against ‘Torture,
or Inhuman Treatment, Slavery’, Right to ‘Liberty and Security of Person, Human
Dignity, freedom of Movement and Residence, Fair and Public Trial, Recognition as a Person Before Law, Privacy,
Family, Correspondence and Reputation, Freedom of Thought, Freedom of Speech
and Expression, Association, Marry and Found a Family, Protection of a Child,
Peaceful Assembly, Equality Before the Law, Minorities, Enjoy Natural Wealth
and Resources’, Rights of the Arrested Person and Restrictions on the Enjoyment
of Civil Rights.
2 Political Human Rights
All the
political human rights recognized and guaranteed to almost all citizens of a
state. They are, Right to Self-Determination, Take Part in the Government, and
an Equal Access to Public Services.
3
Obligations (Duties) of states
Apart from the above said provisions
regarding protection of Civil and Political Rights of the people ICCPR also provided
for the duties of the State to Guarantee and Respect the Rights of Individuals 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. It fixes responsibility of each state to adopt such legislative or
other measures, as may be necessary, to give effect to the rights, recognized
in the ICCPR. It further lays down that it shall be the responsibility of each state
to ensure that any person, whose rights and freedoms are violated, shall have
an effective remedy, notwithstanding that the violation has been committed by
persons, acting in an official capacity. It shall also be the responsibility of
each state to ensure that the competent authorities (Supreme Court and High Courts)
shall enforce such remedies, when granted. It imposes on state, Duty to Ensure
Equal Right of Men and Women and Duty on every state, group, or person, not to
engage in any activity, or perform any act, aimed at the destruction of any of
the rights and freedoms, recognized by the ICCPR.
4 Establishment of Human Rights committee.
Article 28 to 45 of the ICCPR deal with
the establishment of a Human Rights Committee, its composition, election of its
members by secret ballot by State Parties to the present Covenant, its tenure,
vacancy of membership and its filling by election, emoluments of members,
provision for its necessary staff and facilities, its meetings, election of its
officers, submission of its reports, appointment of ad hoc Conciliation
Commission and their privileges, facilities and immunities.
CONVENTION ON ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (1979)
Although the international community proclaimed the UDHR in 1948and subsequent ratification of the ICCPR and ICESCR in 1966 it was criticized to have failed to overcome ‘gender bias’ and to provide ‘gender equality’ to the women. Especially in third world counties where patriarchal structure of society give preference to male in all walks of life. Women face discrimination through, infanticide, malnutrition, ill health care, and domestic violence against women including sexual abuse and sexual harassment. A change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women. All this led to the adoption of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by the UN General Assembly on December 18, 1979 and came into force on September 3, 1981.
Important Provisions of CEDAW
The CEDAW has 30
Articles. Some important provisions are, defining the term ‘Discrimination
Against Women’ as ‘any distinction, exclusion, or restriction, made on the
basis of sex’, measures to achieve
Principle of Equality, full development and advancement of Women, Modification
of Social and Cultural Patterns of
Conduct, Suppression of All Forms of Traffic in Women, Equality of Women
with Men ‘in Political Life, at International Level, regards to nationality, in
the Field of Education, in the field of Employment, before law, relating to
marriage and family relations’, Equal Access to Health Care Services,
Establishment of a Committee on the Elimination of Discrimination Against Women
and related ‘rules of Procedure and its Officers, meetings of the committee,
it’s report with recommendations’, A Report on Legislative, Judicial and
administrative Measures, Request for Revision of the Present Convention, and
Reservations by States.
Criticism from States
Many countries
have specifically objected that they would not implement some of the provisions
of the Convention because of their political, constitutional, cultural, or
religious compulsions and reasons.
1.
Some states objected to the obligation on the part of
the States to enter into contractual agreements with the UN to the effect that
they would take all necessary measures to ensure the equality of women.
2.
Many states objected to the provision of equality of
women and men within the family.
As a result such
reservations violate and nullify the very basis and essence of the Conventions.
CONVENTION ON THE RIGHTS OF THE CHILD
The rights of a
child, including his/her well-being and protection remained and important issue
on the agenda of United Nations since its inception. Towards this objective
United Nations set up the United Nation’s Children Fund on Dec. 11, 1946 which
is now the primary organization of the U.N. responsible for international
assistance to children.
Three landmark
documents of Human Rights taken special note of the Child Rights. UDHR lays
down right to special care and assistance during motherhood and childhood.
ICCPR provided for Right against Death Sentence for persons below 18 years and
pregnant women. It also guarantees the Right to Protection without any
discrimination, right to registration and name and right to nationality. And
ICESCR (1966) provides for the Right to Special Protection and assistance,
Right against Economic and social exploitation, and an obligation of the
States, to take measures for Healthy development of the Child.
THE DECLARATION OF THE RIGHTS OF THE CHILD, 1959.
The first U.N.
Declaration, exclusively devoted to the rights of children, was the Declaration
of the Rights of the Child. It affirmed the principle of “the best interests of
the child” meaning thereby that “mankind owes to the child the best, it has to
give.” It served as moral framework for the rights of the Child.
CONVENTION ON THE RIGHTS OF THE CHILD (1989)
It is at the
backdrop of the above discussed developments the U.N.General Assembly adopted
the Convention on the Rights of The Child in the year 1989 which was submitted
by The Commission on Human Rights.
The Convention calls upon all states
The Convention calls upon all states
1.
to make the rights of children widely known to adults
and children alike, by making its widest possible publicity in their respective
territories, and
2.
to make their reports, on the implementation of the
principles and provisions of the Convention, available to their public at large
in their own States.
Further, it
specified that, as the child is a subject of law, all human rights-political,
civil, economic, social and cultural- which are considered to be essential for
his/her survival, development, participation and protection, are
“interdependent and indivisible.”
SUMMARY OF THE RIGHTS OF THE CHILD
1. Re-affirmation of the Principle of “The Best Interests of the Child”: The convention re-affirms the principle of “the best interests of the Child” which should be the basic consideration in all matters and decisions, which vitally affect the interests of the child.
2.
Protection against Sexual and Economic Exploitation:
The Convention protects the child agaist sexual and economic exploitation,
emergency situations, ill-treatment, abandonment, and armed conflicts and
ensures assistance to those children, who seek refugee status.
3.
Protection Against Torture and Capital Punishment: The
Convention calls upon the States not to subject children to torture and capital
punishment or life ijprisonment for offence, committed by persons below 18
years of age.
4.
Right to Health, Care, Education and Leisure: The
Convention guarantees to every child the right to health, care, education and
leisure. It calls upon States to provide special care to the disabled children.
5.
Right to have a Name and Nationality: The Convention
laid down tha every childf shall have the right to a name and nationality from
birth, and to preserve his/her identity for the whole life.
6.
Parental Responsibility for the upbringing of the
Child: The convention laid down that it shall be primary responsibility of both
parents to upbringing their children properly.
7.
Children, not to be separated from their Parents: The
convention lays down that, as far as possible, children should not be separated
from their parents except where the competent authorities so determine.
However, in such cases, children have a right to maintain personal relations
with their parents.
8.
Right of the child to respect for his/her Views: The
Convention recognizes and ensures the right of the child to respect for his/her
views. It says that the children shall have the right to express their views on
matters affecting them and that these views should be considered, with due
weight according to the age and maturity of the children.
9.
Right against Discrimination: The Convention, in clear
and unmistakable terms, lays down the fundamental principle of
non-discrimination on any ground. It states that all children shall enjoy all
the rights, guaranteed to them, under the Convention, without any
discrimination, irrespective of the child’s or his/her parent’s, or legal
guardian’s, race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or other status.
10. Need
of International Co-operation and Technical Assistance: The convention
recognizes the important role, being played by international co-operation and
technical assistance, in ensuring respect for the rights of the child
especially in the developing countries in the third world.
Answer:
The movement for Human Rights spread in various dimensions achieving step by step success in its objectives since Seventeenth century onwards. This journey of Human Rights can be traced while classifying it in three Generations.
FIRST GENERATION:
The Civil and Political Human Rights are collectively known as the “First Generation” of human rights. These are in the form of injunctions against the State. They are also known as the “Liberty Oriented Human Rights” because these rights collectively provide, protect and guarantee individual liberty to an individual against the State and its agencies.
Civil Human Rights
The seventeenth
and eighteenth centuries contributed and strengthened the civil rights, which
assured civil liberties, property, the right to justice and the right to
conclude valid contracts. The demand for civil rights in 17th and 18th
centuries was a demand against the State and its various authorities and
agencies and also against oppression and arbitrariness.
The civil human
rights are always guaranteed to all persons within the territory of the State.
The long drawn struggle for these rights resulted in to the recognition in
UDHR, 1948 & ICCPR,1966. Some important among them are as follows;
1)
Right to Life
2)
Right against Torture, or Inhuman Treatment
3)
Right to Liberty
4)
Right against slavery
5)
Right to Human Dignity
6)
Right to Freedom of Movement and Residence
7)
Right to Recognition as a Person Before Law
8)
Right to Equality Before the law
9)
Right to Fair and Public Trial
10)
Rights of the Arrested Person
11)
Right to Privacy, Family, Correspondence and Reputation
12)
Right to freedom of Thought, Conscience and Religion
13)
Right to Freedom of Speech and Expression
14)
Right to Peaceful Assembly
15)
Right to Freedom of Association
16)
Right to Marry and Found a Family
17)
Right to Protection of a Child
18)
Rights of Minorities
19)
Right to enjoy natural Wealth and Resources
20)
Right to seek asylum from Persecution
21)
Right to and Effective Remedy for Violation of
Fundamental Rights
22)
Restrictions on the Enjoyment of Civil Rights
Political Human Rights
The eighteenth
and nineteenth centuries contributed to the strengthening of political rights,
which enable the citizens of the State to take part in the government of the
state directly or through the periodically elected representatives at periodic,
genuine elections, to be conducted on the basis of universal adult suffrage.
Political human rights, are guaranteed only to the citizens of the State.
Following are the
political human rights, declared under UDHR, and ICCPR.
1)
Right to Self-determination
2)
Right to take Part in the Government of the Country
3)
Right to have an Equal Access to Public Services
4)
Right to petition.
5)
Right to Criticise the Government of the Day
6)
Right to Nationality
SECOND GENERATION:
The
economic, social, and cultural rights, including the rights of the minorities
are collectively known as the “Second Generation” of Human Rights. They are
also known as the “Security Oriented Human Rights” because these rights
collectively provide and guarantee the essential security in the life of and
individual.
The
twentieth century contributed to the development and strengthening of economic,
social and cultural rights and the rights of minorities as well. These rights
aim at promotion of the economic and social security through economic and
social upliftment of the weaker sections of the society. These rights are
essential for dignity of personhood as well as for full and free development of
human personality in all possible directions. These rights ensure a minimum of
economic welfare of the masses and their basic material needs, recognized by
the society as essential for civilized living. The demand for such rights in
the nineteenth and twentieth centuries was made in the form of claims or
demands upon the state-a claim that it is the responsibility and liability of
the State to provide and guarantee “the means for actualizing the individual’s
happiness and will-being.”
Following
are the important economic rights, declared under the UDHR, 1948, and the
ICESCR, 1966.
1)
Right to property
2)
Right to Work
3)
Right to Equal Pay for Equal Work
4)
Right to Form and Join Trade Unions.
5)
Right to Strike the Work
6)
Right to Minimum Standard of living
Following are
the social and cultural human rights, recognized and guaranteed to all persons
within the State under the UDHR.
1)
Right to Social security
2)
Right to Rest and Leisure
3)
Right to Protection of Motherhood and Childhood
4)
Right to Education
5)
Right to Protection of Moral and material Interests
6)
Right to Marriage and Found a Family
7)
Right to Maternity Benefits.
8)
Right to Cultural Life.
THIRD GENERATION:
The “Development Oriented Human Rights” are known as the “Third Generation” of Human Rights.
They
are of a very recent origin in the late twentieth century. These Human Rights
enable an individual to participate in the process of all round development and
include environmental rights, that enable and individual to enjoy the
absolutely free gifts of nature, namely, air, water, food, and natural
resources, free from pollution and contamination.
Since
the human being is at the central subject of the development process in every
human society, therefore, it is the primary responsibility of every State and
its various agencies to create conditions, favorable to the development of its
peoples and individuals. Thus, right to Development is and inalienable human
right. These rights are provided under the Declaration on the Right to
Development, adopted on 4th December, 1986 by the U.N. General Assembly.
The protection and improvement of human environment affects favourably not only the well-being of people but the economic development as well as throughout the world. It is, therefore, the birth right of every individual to enjoy the natural environment free from the pollution. Potable drinking water, fresh air, protection and conservation of forests and ecology, are now very much part of the right to life.
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