Human rights - Unit I - Definitions, scope and sources of Human Rights

SASI K.G.

01. Introduction

01. Human Rights in Ancient Hindu Era

Scholars who have spent long time in lucubration on the Hindu "Dharmasastras" and the "Arthasastras" and other legal treatises of the past have discovered an amazing system, which, inter alia, regulates the duties of Kings, judges, subjects and judicial as well as legal procedures. The central concept is Dharma, the functional focus of which is social order. The message is "Dharma" as the supreme value, which binds kings and citizens, men and women. Human rights gain meaning only when there is an independent judiciary to enforce rights. Here, the Dharmasastras are clear and categorical.[i]

The independence of the judiciary was one of the outstanding features of the Hindu judicial system. Even during the days of Hindu monarchy, the administration of justice always remained separate from the executive. It was, as a rule, independent both in form and spirit. It was the Hindu judicial system that first realized and recognized the importance of the separation of the judiciary from the executive and gave this fundamental principle a practical shape and form. The case of Ananthapindika v. Jeta reported in the vinaya-pitaka[ii], is a shining illustration of this principle. According to it, a Prince and a private citizen submitted their cases before the law court and the court decided against the Prince. The Prince accepted the decision as a matter of course and as binding on him. The evolution of the principle of separation of the judiciary from the executive was largely the result of the Hindu conception of law as binding on the sovereign. Law in Hindu jurisprudence was above the sovereign. It was the "Dharma." The laws were then not regarded so much as a product of supreme Parliaments and Legislatures as at present. Certain laws were regarded as above all human authority. Such, for instance, were the natural laws, which no Parliament, however supreme, could abolish.

"The State was not sacerdotal, nor even paternalistic; even the King was subject to the law, as any other citizen and the 'Divine Right' of Kings known to western political science was unknown to India. On the whole, the aim of the ancient Indian State may be said to have been less to introduce an improved social order, than to act in conformity with the established moral order.[iii] Duty is not a tyrant, but a symbol of dignity to be discharged with affirmative joy. The realization of this vast perspective is assured in the Dharmasastras by the wonderful scheme or co-ordination of conduct adapted to different conditions, status and situations of life. The scope of dharma takes in its vast sweep human rights as well.

As Nagendra Singh remarks:

The individual in ancient India existed as a citizen of the State and in that capacity he had both rights and obligations. These rights and duties have largely been expressed in terms of duties (Dharma) - duties to oneself, to one's family, to other fellowmen, to the society and the world at large.  The basis of ancient human rights jurisprudence was Dharma - the ideal of ancient Indian legal theory was the establishment of socio-legal order free from traces of conflicts, exploitations and miseries. Such a law of "Dharma" was a model for the universal legal order.[iv]

There are many refereiices in the Vedas, which throw light on the existence of human rights in ancient lndia. The Vedas proclaim liberty of body (Tan), dwelling house (Skridhi), and life (Jibase). In 1367 B.C. Bahmani and Vijayanayar Kings are stated to have entered into an agreement for the humane treatment of prisoners of war and the sparing of lives of the enemy's unarmed subjects.[v] Human rights have always occupied a place of paramount importance in India's rich legacy because India believed in the principle, "Vasudhaiva-kutumbakam”, i.e. welfare of all. Justice Rama Jois sums up this legacy thus:

“According to Rajadharma, the King was given the power only to enforce the law. Dharmasastras did not confer on or recognize any legislative power in the King. This is the most important distinction between Kingship in India and the concept of Kingship in the West. But under the Kingship as recognized and established under the Dharmasastras, the laws were those laid down by the Dharmasastras themselves. They did not authorize the King to lay down new laws or amend provisions of the Dharmasastras. On the other hand, Dharmasastras also laid down the laws governing the conduct of the King himself (Rajadharma).”[vi]

Legal literature of the Hindu period owes much to the distinguished law givers of the times as well as to the two epics and the Arthasastra (Kautilya) and Sukranitisara. We are not concerned with the legal history of the India of those days, which was quite advanced but with the constellation of rights and duties, which constitute human rights. Kautilya's Arthasastra asserts that "in the happiness of the subjects, lies the happiness of the King, and what is beneficial to the subjects is his own benefit."[vii] Kautilya also disapproved of the theory of royal absolutism and subordinated the King also to the law. Similarly, Shantiparva prescribes that a king may be punished if he does not follow the path of the Dharma.

Kautilya, the author of the celebrated political treatise Arthasastra not only affirmed and elaborated the civil and legal rights first formulated by "Manu," but also added a lumber of economic rights. He categorically ordained that the King should also provide the orphan, the aged, the infirm, the afflicted and the helpless with maintenance. He shall provide subsistence to the helpless, the expectant mothers and the children they give birth to.[viii] To quote P.V. Cane in ancient Indian thought, "there were no acts of Parliament guaranteeing services to the people. The public opinion, the views of eminent writers and the practice of the best Kings created an atmosphere in which it was thought that it was imperative for the King representing the State to encourage learning and to give employment to the unemployed."[ix]

In the Post-Vedic period, the rise of Buddhism and Jainism were certainly a reaction against the deterioration of the moral order as against the rights of the privileged class. Life was more human and liberal in the Post-Vedic era. After Buddha, Emperor Ashoka protected and secured the most precious of human rights, particularly the right to equality, fraternity, liberty and happiness. Ashoka successfully established a welfare State and made provisions for securing basic freedoms. Ashoka, the champion of civil liberties, allowed even the forest folk in his domain to enjoy security of life, peace of mind and enjoy their life on par with other people in the society. Torture and inhuman treatment of prisoners were prohibited uncler Ashoka's benign dispensation.

02. Human Rights in the Islamic Era

The downfall of the Rajput administration gave rise to the advent of Muslim rule in India. It was under Muizz-ud-Din that the first Muslim Empire was founded in India. The Muslim invasion of India created a new situation wherein the Muslim rulers or Sultans followed a policy of discrimination against the Hindus. So the significance of Muslim rule in India was counter- productive to harmony, justice and equality. M.K. Nawaz is objective enough to qualify his conclusion with the observation that 'Islamic law' at least in its traditional interpretation, considers certain human being as more equal than others. There was one law for the Muslims (the faithfuls) and another for the Hindus (the Kafirs or the infidels) and as a result the principle of equality was not given much importance.

The Muslim conquerors like Mahmud Ghaznavi and others made frontal attacks on ancient Hindu way of life and religion. With the Mughal rulers, especially with Akbar a new era began in the Mughal history of

India in the field of human rights as a result of his policy of 'Universal Reconciliation and Tolerance.' The European travelers who visited Akbar's empire highly appreciated his zealous regard for rights and justice. His justice-loving tradition was followed by his son Jehangir too. The trend initiated by Akbar came to be reversed by Aurangzeb, though the Marathas and the Sikhs opposed and fought the fanaticism of Aurangzeb.

03. Human Rights in British India

The modern version of human rights jurisprudence may be said to have taken birth in India at tile time of the British rule. When the British ruled India, resistance to foreign rule manifested itself in the form of demand for fundamental freedoms and the civil and political rights of the people. Indians were humiliated and discriminated against by the British. The freedom movement and the harsh repressive measures of the British rulers encouraged the fight for civil liberties and fundamental freedoms.

Under the British rule, human rights and democracy were suspect and socialism was an anathema. In the Indian cultural history, the British colonial period remains the Indian equivalent of the 'Dark Ages'.

Lord Macaulay rejected the ancient Indian legal political system as 'dotages of brahminical superstition', and condemned ancient legal heritage and its inner core as an 'immense apparatus of cruel absurdities'.[x] Lord Wellesley condemned the Indians as vulgar, ignorant, rude and stupid and Lord Cornwallis described as an axiom that every native of Hindustan is corrupt. The English East India Company debarred

Indians from high offices and deprived them of their political, social and economic rights. The impression created in the Indian minds was that their sacred inalienable human rights and vital interests had been ignored, denied, and trampled upon for the sake of England and the English rulers.

Mahatma Gandhi organized the people of India under his leadership and launched his non-violent struggle to achieve self-government and fundamental rights for themselves. Lokmanya Tilak advocated that "freedom was the birth right of Indians for which they will have to fight.[xi] It was because of the stiff opposition from the people of India that the Charter Act of 1813 was enacted to promote the interest and happiness of the native inhabitants of India. Similarly, the

Government of India Act, 1833 was passed to allow the Indians to enjoy some political rights. The proclamation of Queen Victoria on 1^st November 1858 contained some principles of state policy, which were similar to fundamental rights in nature.

The concrete demand for fundamental rights came logically in the wake of the nationalist movement, which coincided with the birth of the Indian National Congress in 1885. The Constitution of India Bill 1895 known as the "Home Rule Document" prepared by the Indian National Congress paved the way for a constitution guaranteeing every one of the citizens the basic human rights like freedom of expression, inviolability of one's own house, right to property and equality before law.[xii]

The Government of India Act, 1915, in pursuance of the demands for fundamental rights, guaranteed equality of opportunity in public services. A series of resolutions adopted by the National Congress between 191 7 and 191 9 repeated the demand for civil rights and equality of status with the English.

02. Unit I Definitions, scope and sources of Human Rights

01. Foundational Aspects

Human rights are norms that help to protect all people everywhere from severe political, legal, and social abuses. Examples of human rights are the right to freedom of religion, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity. These rights exist in morality and in law at the national and international levels. Historical sources for bills of rights include the Magna Carta (1215), the English Bill of Rights (1689), the French Declaration of the Rights of Man and the Citizen (1789), and the Bill of Rights in the United States Constitution (1791). Early philosophical sources of the idea of human rights include Francisco Suarez (1548–1617), Hugo Grotius (1583–1645), Samuel Pufendorf (1632–1694), John Locke (1632–1704), and Immanuel Kant (1724–1804). The main sources of the contemporary conception of human rights are the Universal Declaration of Human Rights (United Nations, 1948) and the many human rights documents and treaties that followed in international organizations such as the United Nations, the Council of Europe, the Organization of American States, and the African Union (on the early history of human rights see Tierney 2001 and Griffin 2008; for the history of the Universal Declaration see Glendon 2001, Lauren 1998, and Morsink 1999; and for the recent history of international human rights see Moyn 2010 and Jean Cohen 2012).

The philosophy of human rights addresses questions about the existence, content, nature, universality, justification, and legal status of human rights. The strong claims made on behalf of human rights (for example, that they are universal, or that they exist independently of legal enactment as justified moral norms) frequently provoke skeptical doubts and countering philosophical defences (on these critiques see Waldron 1988 and the entry on rights). Reflection on these doubts and the responses that can be made to them has become a sub-field of political and legal philosophy with a substantial literature.

02. Meaning and Concept of Human Rights

01. Talking Human Rights

Much has been said and claimed of human rights over the centuries regarding their ontology, utility, format, and future.[xiii] Immanuel Kant considered human rights to be the transcendental emanations of our collective consciences[xiv] (echoing Tom Paine); and John Stuart Mill followed both of them by stressing that they constituted the natural essence of the liberated, rational individual.[xv] John Locke was the first to declare them to be inalienable. Locke describes the natural state of all men and women as being ‘a state of perfect freedom to order their actions and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature; without asking leave, or depending upon the will of any other man’.[xvi] This was the precise term used to describe them in the American Declaration of Independence (and also, many years subsequently in the Universal Declaration of Human Rights (‘UDHR’)). The French Déclaration des droits de l'homme et du citoyen de 1789 drew upon the same sentiment by pronouncing them to be natural and imprescriptible.[xvii] The framers of the UDHR further considered human rights to be constituent of the ‘inherent dignity … of all members of the human family’.[xviii] Somewhat differently, the Japanese cross-cultural theorist, Onuma Yasuaki, thinks that human rights are more concerned with ‘realizing the spiritual and material well-being of humanity’ rather than merely individual dignity.[xix]

The passage of the Human Rights Act in the United Kingdom in 1998 prompted claims that human rights now provide ‘values in a Godless age’,[xx] though in sailing so close to the winds of theocracy others have warned that human rights might be in danger of adopting the ‘sentimental vocabulary of devotion’.[xxi] Such disparate sources as Plato, St Thomas Aquinas, Confucius and the Koran all variously emphasize that the essential rights to equality and liberty beget justice[xxii];

John Rawls developed his monumental theory of justice on the back of the catalytic effect of a sophisticated balance between equality and liberty rights.[xxiii]

For Costas Douzinas, more than merely catalytic, the great attribute of human rights is their revolutionary and transformative character borne of their utopianism which, although ‘impossible’ to attain, nonetheless provides an important social framework in which individuals relate to each other: ‘… in claiming and exercising our rights we reveal ourselves as beings addressed to another. Having rights, living through rights, is therefore of greater ontological importance than the contents of these rights. Rights are our truthful lie.’[xxiv] Many of the Enlightenment’s leading thinkers stressed the utility of rights as bulwarks against the state (as Hobbes saw them),[xxv] or as the responsibilities of the state (as was the view of Locke and Rousseau). For Locke, this meant ‘absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties, and fortunes, and by stated rules of right and property to secure their peace and quiet’.[xxvi]  For Rousseau, the body politic or the Sovereign, drawing its being wholly from the sanctity of the contract, can never bind itself … to do anything derogatory to the original act’ [i.e. ‘the social compact’]. The social compact is an ‘association which will defend and protect with the whole common force the person and goods of each associate, and in which each, while uniting himself with all, may still obey himself alone, and remain as free as before’.[xxvii]

Dworkin articulated such rights as ‘trumps’ in the card game of competing policy and legal claims;[xxviii] and H L A Hart considered the leverage they commanded to be such that they have displaced utilitarianism to become the ‘prime philosophical inspiration of political and social reform.’[xxix]

All that said, as a concept human rights have had their share of detractors: the conservative Edmund Burke considered them to be artificial, revolutionary and dangerously destabilizing. Burke was scornful of rights advocates: ‘speculatists’ he called them, adding dismissively ‘I have nothing to say to the clumsy subtilty of their political metaphysics’.[xxx]

Karl Marx thought them to be quintessentially bourgeois (that is, selfish, egoistic and atomistic); According to him, “None of the so-called human rights then goes beyond the egoistic man, beyond man as member of civil society, namely withdrawn into his private interests and his private will, separated from the community.’[xxxi]

Jeremy Bentham famously pronounced that claims as to their existence as part of natural law to be nonsense upon stilts.[xxxii]

All sorts of relativists argue that rights — as proclaimed today as representing universal values — are nothing of the sort. Politics, philosophy, economics, social and religious traditions, geography and gender all particularise and distinguish human rights from the claimed universally set standards. Thus, for example, Asian, African, socialist and feminist commentators have all expressed concerns over the confrontational tendencies of rights disputes, their focus on what separates right holders and duty holders rather than on what joins them, and their value-laden baggage and particularism despite their claims of value-neutrality and universalism. As Marie-Bénédict Dembour reflects in her candid and impressively insightful treatment of these varieties of skepticism,[xxxiii] questioning human rights claims to universality (which she does) cannot be simply seen as being ‘against human rights’; rather, it is for her, a valid intellectual and practical insistence ‘that each reference to human rights needs to be assessed morally on its own merits, by which I principally mean its outcome’. According to Michael Ignatieff’s view, the era of human rights has even been said to be ‘ending.’[xxxiv] According to Douzinas, at least it is showing signs of the decay of human rights as an ideological force.[xxxv] On closer examination, rather than a comprehensive demise, both authors are pointing to paradigmatic shifts in the canon borne of particular challenges: that is, the atrocities in the United States of America of 11 September 2001 for Ignatieff, and the ‘triumph’ of liberalism after the collapse of the Soviet empire in 1990 for Douzinas. It may also be that these shifting contours of human rights understanding are merely representations of what Noberto Bobbio sees as the transformatory, evolutionary stage in which we now find human rights. That is, as Bobbio mapped out in The Age of Rights, the third and final significant stage of human rights development that follows the initial construction of their normative, philosophical foundations, and then (secondly) their assertive adaptation to the political ends of liberalism, to the present state where those statements and claims are being transformed into the laws, policies and practices that suit the many various domestic and international circumstances.[xxxvi]

03. Notion and Classification of Rights

01. Natural Rights

1.7 THE NATURAL RIGHTS THEORY

Though the expression ‘human rights’ had its origin in international law, which is not older than the World War II, the concept of an individual having certain basic, inalienable rights as against a sovereign State had its origin in the doctrines of natural law and natural rights. Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704) and Jean-Jacques Rousseau (1712 – 1778) are the three main thinkers who developed the Natural Rights theory. Thomas Hobbes was the first champion of the theory of ‘natural rights’. In his celebrated book, ‘Leviathan’, he advocated that no individual could ever be deprived of the right to life, which he enjoyed in the state of nature. He asserted that all human beings are equal, without any consideration. John Locke developed the idea further in his book, ‘Two Treatises Government.’ He argued that every human being has a natural right to life, personal liberty, and property, and that no governmental authority has power to deprive individuals of these rights because they had enjoyed them even before the creation of the civil or political society.

Rousseau is regarded as the greatest master of natural law school. In his celebrated book, ‘The Social Contract’, Rousseau states that “All men are born free but everywhere they are in chains.” Rousseau proclaimed that men are bestowed with inalienable rights of liberty, equality and fraternity. These concepts became the basis for the French Declaration of the Rights of Man and of the Citizen. Paine an American revolutionary thinker developed the doctrine of natural rights without linking it to the social contract theory. He held that rights are natural, because they were bestowed upon man by God himself. These rights exist independently of the legal code of any country.

02. Moral Rights and Legal Rights

Moral Rights

• A right is an entitlement to be treated in a certain way.

• Moral rights are importantly distinct from legal rights:

Moral Rights	Legal Rights
Natural: Moral rights are discovered, not created. (This is a form of moral realism.)	Created: Our legal rights are created by legislation.
Equal: Moral rights are equal rights; there is no injustice in how they are distributed.	Can be unequal: There are many situations in which the distribution of legal rights is unjust.
Inalienable: Moral rights cannot be taken away from you without your consent (although you can voluntarily surrender them).	Alienable: Your legal rights can be taken from you against your will.
Universal: Your moral rights are the same no matter where you are.	Local: Your legal rights change when you move from one jurisdiction to another.

Categories of Moral Rights

Moral Rights
Natural Rights			Special Rights
Negative Rights		Positive Rights	Negative Rights		Positive Rights
Liberty Rights	Immunity Rights	Welfare Rights	Liberty Rights	Immunity Rights	Welfare Rights

Rights and Duties:

For each moral right there is a corresponding moral duty.

1.        Negative rights create corresponding duties in all other moral agents.

2.       Positive rights create corresponding duties in specific individuals.

3.       Special rights create corresponding duties in individuals identified by examining the actions or relationships  that create the right.

Possession Criteria:

1.       For each moral right there is a “checklist” of characteristics an individual must have in order to possess that right. The items on this list are the possession criteria for that right. An individual has a moral right only if it meets these criteria.

2.       Possession criteria must be morally relevant to the nature and content of the right.

01. Possession criteria for natural rights are always natural characteristics of the individual (e.g., rationality, sentience).

02. Possession criteria for special rights always have to do with actions or relationships

(e.g., parent-child relationship, act of making a promise).

03. Possession criteria for negative  rights are generally factors that enable one to be autonomous (i.e., self-governing); e.g.,

rationality, experience of the world.

04. Possession criteria for positive rights are generally one’s vulnerability to harm.

The Right to Life: This right does not fit cleanly into any of the above categories. It would be better to describe this as a set of related moral rights.

Human Rights: There does not seem to be any way of establishing suitable possession criteria for human rights. It would be irrelevant and unjust to use a biological category (e.g., being human), and other characteristics (e.g., being rational) do not apply to all and only human beings.

Thus, it seems that there are no genuinely human rights.

Rights in Conflict:

• A moral issue cannot be settled by pointing out just one of the rights involved. Rights conflict with one another, and we must determine which rights override which other ones.

• Immunity rights often override liberty rights, although there are exceptions (e.g., harming another in self-defense).

• Each moral right is either absolute or defeasible:

• Absolute: Automatically overrides any other right with which it conflicts.

• Defeasible: May be overridden by other moral rights.

• An action that conflicts with a moral right is not automatically morally impermissible. It could be that the right with which it conflicts is overridden in this situation by some other right.

• Violating a right: An action violates a right when it conflicts with that right and that right has not been overridden by other rights in that situation. Such actions are morally impermissible.

• Infringing upon a right: An action infringes upon a right when it conflicts with a right and that right has been overridden by other rights in that situation. Such actions are morally permissible.

04. Three Generations of Human Rights

Human rights can be broadly classified on five bases. They are:

Civil Human Rights

Political Human Rights

Economic Human Rights

Social and Cultural Human Rights

Development Oriented Human Rights

01. Civil and Political Rights

The seventeenth, eighteenth and nineteenth centuries contributed and strengthened the civil and political rights, which assured civil and political liberties. The Civil and Political Human Rights are collectively known as ‘Liberty Oriented Human Rights’ because they provide, protect and guarantee individual liberty to an individual against the State and its agencies. Liberty rights also referred to as Blue Rights are the First Generation of Human Rights.

02. Economic, Social and Cultural Rights

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 the 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 to civilized living. The economic, social and cultural rights, including the rights of the minorities are collectively known as the “Security Oriented Human Rights” because these rights collectively provide and guarantee the essential security in the life of an individual. In the absence of these rights, the very existence of human beings would be in danger. These are also known as the “Second Generation of Human Rights”. They are also referred to as Red Rights or also as positive rights. These rights along with the Civil and Political Rights were declared by the Universal Declaration of Human Rights and later were recognized by (1) the Covenant on Civil and Political Rights and (2) the Covenant on Economic, Social and Cultural Rights in December 1966.

03. Collective/Solidarity Rights

The Development Oriented Human Rights are of a very recent origin in the late twentieth century. These rights enable an individual to participate in the process of all round development and include environmental rights that enable an individual to enjoy the absolutely free gifts of nature, namely, air, water, food and natural resources, free from pollution and contamination. These are known as the Third Generation of Human Rights or Green Rights. They are also called as Solidarity Rights, because their implementation depends upon international cooperation. Solidarity rights are of special importance to developing countries, because these countries want the creation of an international order that will guarantee to them the right to development, the right to disaster relief assistance, the right to peace and the right to good government. Rights for Citizens and for all persons. All human rights can be further classified into two distinct classes on the basis of the eligibility of individual, who can exercise them as under:

1. The rights for citizens and 2. The rights for all persons

Certain rights are conferred only on citizens. For eg. In the Indian constitution provisions in Articles 15, 16, 19 and 29 are limited to citizens. The remaining provisions in Part III of the Indian Constitution are applicable to citizens and aliens alike.

05 Theoretical Dimensions

The philosophy of human rights attempts to examine the underlying basis of the concept of human rights and critically looks at its content and justification. Several theoretical approaches have been advanced to explain how and why the concept of human rights developed.

One of the oldest Western philosophies on human rights is that they are a product of a natural law, stemming from different philosophical or religious grounds. Other theories hold that human rights codify moral behavior which is a human social product developed by a process of biological and social evolution (associated with Hume). Human rights are also described as a sociological pattern of rule setting (as in the sociological theory of law and the work of Weber). These approaches include the notion that individuals in a society accept rules from legitimate authority in exchange for security and economic advantage (as in Rawls) – a social contract. The two theories that dominate contemporary human rights discussion are the interest theory and the will theory. Interest theory argues that the principal function of human rights is to protect and promote certain essential human interests, while will theory attempts to establish the validity of human rights based on the unique human capacity for freedom.

06. Basis and Sources of Human Rights

The sources of international law are not the same as those in domestic law. The two major sources creating legally binding rules of international law are treaty and custom. In domestic law the question of the source of a rule or law is seldom controversial. Common law systems rely upon statutes and the decisions to be found in court judgments for evidence of the existence of the rule or law; civil law systems rely upon the appropriate legislation or Codes. It is rarely necessary in either system to inquire whether a legal rule is in fact a legal rule and its existence, if not its interpretation, will be uncontroversial. Exceptionally a further question may arise as to the legitimacy of the rule. If it does it will usually concern the status of the rule that might be affected by procedural defects, or be beyond the power of the body that purported to create it.

01. Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is a UN General Assembly declaration that does not in form create binding international human rights law. Many legal scholars cite the UDHR as evidence of customary international law.

More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law

02. International human rights treaties

Besides the adoption in 1966 of the two wide-ranging Covenants that form part of the International Bill of Human Rights (namely the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights), a number of other treaties have been adopted at the international level. These are generally known as human rights instruments. Some of the most significant include the following:

·                     the Convention on the Prevention and Punishment of the Crime of Genocide (CPCG) (adopted 1948 and entered into force in 1951);

·                     the Convention Relating to the Status of Refugees (CSR) (adopted in 1951 and entered into force in 1954);

·                     the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted in 1965 and entered into force in 1969);

·                     the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entered into force in 1981);

·                     the United Nations Convention Against Torture (CAT) (adopted in 1984 and entered into force in 1987);

·                     the Convention on the Rights of the Child (CRC) (adopted in 1989 and entered into force in 1990);

·                     the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted in 1990 and entered into force in 2003);

·                     the Convention on the Rights of People with Disabilities(CRPD) (entered into force on 3 May 2008); and

·                     the International Convention for the Protection of All People from Enforced Disappearance (adopted in 2006 and entered into force in 2010).

Regional protection and institutions

Regional systems of international human rights law supplement and complement national and international human rights law by protecting and promoting human rights in specific areas of the world. There are three key regional human rights instruments which have established human rights law on a regional basis:

·                     the African Charter on Human and Peoples' Rights for Africa of 1981, in force since 1986;

·                     the American Convention on Human Rights for the Americas of 1969, in force since 1978; and

·                     the European Convention on Human Rights for Europe of 1950, in force since 1953.

Americas and Europe

The Organisation of American States and the Council of Europe, like the UN, have adopted treaties (albeit with weaker implementation mechanisms) containing catalogues of economic, social and cultural rights, in addition to the aforementioned conventions dealing mostly with civil and political rights:

·                     the European Social Charter for Europe of 1961, in force since 1965 (whose complaints mechanism, created in 1995 under an Additional Protocol, has been in force since 1998); and

·                     the Protocol of San Salvador to the ACHR for the Americas of 1988, in force since 1999.

Africa

The African Union (AU) is a supranational union consisting of 53 African countries. Established in 2001, the AU's purpose is to help secure Africa's democracy, human rights, and a sustainable economy, in particular by bringing an end to intra-African conflict and creating an effective common market.

The African Charter on Human and Peoples' Rights is the region's principal human rights instrument. It emerged under the aegis of the Organisation of African Unity (OAU) (since replaced by the African Union). The intention to draw up the African Charter on Human and Peoples' Rights was announced in 1979. The Charter was unanimously approved at the OAU's 1981 Assembly.

Pursuant to Article 63 (whereby it was to "come into force three months after the reception by the Secretary General of the instruments of ratification or adherence of a simple majority" of the OAU's member states), the African Charter on Human and Peoples' Rights came into effect on 21 October 1986, in honour of which 21 October was declared African Human Rights Day.

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union, tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent, as well as with interpreting the African Charter on Human and Peoples' Rights, and considering individual complaints of violations of the Charter. The Commission has three broad areas of responsibility:

1.                   promoting human and peoples' rights;

2.                   protecting human and peoples' rights; and

3.                   interpreting the African Charter on Human and Peoples' Rights.

In pursuit of these goals, the Commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples' rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments."

With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court's jurisdiction. In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice.

The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union." Although it has not yet been established, it is intended to take over the duties of the African Commission on Human and Peoples' Rights, as well as to act as the supreme court of the African Union, interpreting all necessary laws and treaties. The Protocol establishing the African Court on Human and Peoples' Rights entered into force in January 2004, but its merging with the Court of Justice has delayed its establishment. The Protocol establishing the Court of Justice will come into force when ratified by fifteen countries.

There are many countries in Africa accused of human rights violations by the international community and NGOs.

03. Inter-American system

The Organization of American States (OAS) is an international organization, headquartered in Washington, DC. Its members are the thirty-five independent states of the Americas.

Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:

·                     strengthening democracy;

·                     working for peace;

·                     protecting human rights;

·                     combating corruption;

·                     the rights of indigenous peoples; and

·                     promoting sustainable development.

The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights. The IACHR is a permanent body which meets in regular and special sessions several times a year to examine allegations of human rights violations in the hemisphere. Its human rights duties stem from three documents:

1.                   the OAS Charter;

2.                   the American Declaration of the Rights and Duties of Man; and

3.                   the American Convention on Human Rights.

The Inter-American Court of Human Rights was established in 1979 with the purpose of enforcing and interpreting the provisions of the American Convention on Human Rights. Its two main functions are therefore adjudicatory and advisory:

·                     Under the former, it hears and rules on the specific cases of human rights violations referred to it.

·                     Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela, have been accused of human rights violations.

04. European system

The Council of Europe, founded in 1949, is the oldest organisation working for European integration. It is an international organisation with legal personality recognised under public international law, and has observer status at the United Nations. The seat of the Council is in Strasbourg in France.

The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights. These institutions bind the Council's members to a code of human rights which, although strict, is more lenient than that of the UN Charter on human rights.

The Council also promotes the European Charter for Regional or Minority Languages and the European Social Charter. Membership is open to all European states which seek European integration, accept the principle of the rule of law, and are able and willing to guarantee democracy, fundamental human rights and freedoms.

The Council of Europe is separate from the European Union, but the latter is expected to accede to the European Convention on Human Rights. The Council includes all the member states of European Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.

The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe. All 47 member states of the Council of Europe have signed this Convention, and are therefore under the jurisdiction of the European Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment, the Committee for the Prevention of Torture was established.

The Council of Europe also adopted the Convention on Action against Trafficking in Human Beings in May 2005, for protection against human trafficking and sexual exploitation, the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse in October 2007, and the Convention on preventing and combating violence against women and domestic violence in May 2011.

The European Court of Human Rights is the only international court with jurisdiction to deal with cases brought by individuals rather than states. In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list. About one out of every twenty cases submitted to the court is considered admissible. In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.

05. International and regional sources of human rights

Strong support for the protection of the rights of women and girls to abandon female genital mutilation is found in international and regional human rights treaties and consensus documents.

These include, among others:

International treaties

• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

• Covenant on Civil and Political Rights

• Covenant on Economic, Social and Cultural Rights

• Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)

• Convention on the Rights of the Child

• Convention relating to the Status of Refugees and its Protocol relating to the Status of Refugees

Regional treaties

• African Charter on Human and Peoples’ Rights (the Banjul Charter) and its Protocol on the Rights of Women in Africa

• African Charter on the Rights and Welfare of the Child

• European Convention for the Protection of Human Rights and Fundamental Freedoms

Consensus documents

• Beijing Declaration and Platform for Action of the Fourth World Conference on Women

• General Assembly Declaration on the Elimination of Violence against Women

• Programme of Action of the International Conference on Population and Development (ICPD)

• UNESCO Universal Declaration on Cultural Diversity

• United Nations Economic and Social Council (ECOSOC), Commission on the Status of Women.

Resolution on Ending Female Genita l Mutilation. E/CN .6/2007/L.3/Rev.1.

07. Theories of Human Rights

01. Natural rights

Natural law theories base human rights on a "natural" moral, religious or even biological order that is independent of transitory human laws or traditions.

Socrates and his philosophic heirs, Plato and Aristotle, posited the existence of natural justice or natural right (dikaion physikon, δικαιον φυσικον, Latin ius naturale). Of these, Aristotle is often said to be the father of natural law, although evidence for this is due largely to the interpretations of his work by Thomas Aquinas.

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics.

Some of the early Church Fathers sought to incorporate the until then pagan concept of natural law into Christianity. Natural law theories have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, and John Locke.

In the 16th century, asked by the Spanish monarchs to investigate the legitimacy of claims to land dominion by the indios of Latin America, Francisco de Vitoria expounded a theory of natural rights, especially in his famous Relectio de Indis.

In the 17th century Thomas Hobbes founded a contractualist theory of legal positivism beginning from the principle that man in the state of nature, which is to say without a "commonwealth" (a state) is in a state of constant war one with the other and thus in fear of his life and possessions (there being no property nor right without a sovereign to define it). Hobbes asserted natural law as how a rational human, seeking to survive and prosper, would act; the first principle of natural law being to seek peace, in which is self-preservation. Natural law (which Hobbes accepted was a misnomer, there being no law without a commonwealth) was discovered by considering humankind's natural interests, whereas previous philosophers had said that natural rights were discovered by considering the natural law. In Hobbes' opinion, the only way natural law could prevail was for human beings to agree to create a commonwealth by submitting to the command of a sovereign, whether an individual or an assembly of individuals. In this lay the foundations of the theory of a social contract between the governed and the governor.

Hugo Grotius based his philosophy of international law on natural law. He wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs." (De iure belli ac pacis, Prolegomeni XI). This is the famous argument etiamsi daremus (non esse Deum), that made natural law no longer dependent on theology.

John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.

The Belgian philosopher of law Frank Van Dun is one among those who are elaborating a secular conception of natural law in the liberal tradition. There are also emerging and secular forms of natural law theory that define human rights as derivative of the notion of universal human dignity.

"Dignity" is a key term for the discussion of human rights. The Universal Declaration of Human Rights does not justify its claims on any philosophical basis, but rather it simply appeals to human dignity.

Karl Rahner discusses human dignity as it relates to freedom. Specifically, his ideas of freedom relate to human rights as an appeal to the freedom to communicate with the divine. As embodied individuals who can have this freedom and dignity threatened by external forces, the protection of this dignity takes on an appeal to protect human rights.

The term "human rights" has replaced the term "natural rights" in popularity, because the rights are less and less frequently seen as requiring natural law for their existence. But in fact, the campaigning for the legal recognition of new "human rights" (such as LGBT rights, or euthanasia) must necessarily be based on the assumption that some kind of "Natural Law" commands the recognition of those "rights". The debate on human rights remains thus a debate around the correct interpretation of Natural Law, and human rights themselves a positive, but reductionist, expression thereof

Social contract

The English philosopher Thomas Hobbes suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of preservation to form institutions to govern them. They give up their natural complete liberty in exchange for protection from the Sovereign. This led to John Locke's theory that a failure of the government to secure rights is a failure which justifies the removal of the government, and was mirrored in later postulation by Jean-Jacques Rousseau in his "Du Contrat Social" (The Social Contract).

International equity expert Paul Finn has echoed this view:

"The most fundamental fiduciary relationship in our society is manifestly that which exists between the community (the people) and the state, its agencies and officials." - Paul Finn 

The relationship between government and the governed in countries which follow the English law tradition is a fiduciary one. In equity law, a politician's fiduciary obligations are not only the duties of good faith and loyalty, but also include duties of skill and competence in managing a country and its people. Originating from within the Courts of Equity, the fiduciary concept exists to prevent those holding positions of power from abusing their authority. The fiduciary relationship between government and the governed arises from the governments ability to control people with the exercise of its power. In effect, if a government has the power to abolish any rights, it is equally burdened with the fiduciary duty to protect such an interest because it would benefit from the exercise of its own discretion to extinguish rights which it alone had the power to dispose of.

Reciprocity

The Golden Rule, or the ethic of reciprocity states that one must do unto others as one would be treated themselves; the principle being that reciprocal recognition and respect of rights ensures that one's own rights will be protected. This principle can be found in all the world's major religions in only slightly differing forms, and was enshrined in the "Declaration Toward a Global Ethic" by the Parliament of the World's Religions in 1993.

02. Soviet concept of human rights

Soviet concept of human rights was different from conceptions prevalent in the West. According to Western legal theory, "it is the individual who is the beneficiary of human rights which are to be asserted against the government", whereas Soviet law declared that state is the source of human rights. Therefore, Soviet legal system regarded law as an arm of politics and courts as agencies of the government. Extensive extra-judiciary powers were given to the Soviet secret police agencies. The regime abolished Western rule of law, civil liberties, protection of law and guarantees of property. According to Vladimir Lenin, the purpose of socialist courts was "not to eliminate terror ... but to substantiate it and legitimize in principle".

Crime was determined not as the infraction of law, but as any action which could threaten the Soviet state and society. For example, a desire to make a profit could be interpreted as a counter-revolutionary activity punishable by death. The liquidation and deportation of millions peasants in 1928–31 was carried out within the terms of Soviet Civil Code. Some Soviet legal scholars even asserted that "criminal repression" may be applied in the absence of guilt.". Martin Latsis, chief of the Ukrainian Cheka explained: "Do not look in the file of incriminating evidence to see whether or not the accused rose up against the Soviets with arms or words. Ask him instead to which class he belongs, what is his background, his education, his profession. These are the questions that will determine the fate of the accused. That is the meaning and essence of the Red Terror."

The purpose of public trials was "not to demonstrate the existence or absence of a crime – that was predetermined by the appropriate party authorities – but to provide yet another forum for political agitation and propaganda for the instruction of the citizenry (see Moscow Trials for example). Defense lawyers, who had to be party members, were required to take their client's guilt for granted..."

03. Other theories of human rights

The philosopher John Finnis argues that human rights are justifiable on the grounds of their instrumental value in creating the necessary conditions for human well-being. Interest theories highlight the duty to respect the rights of other individuals on grounds of self-interest:

“Human rights law, applied to a State's own citizens serves the interest of states, by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government manageable “

The biological theory considers the comparative reproductive advantage of human social behavior based on empathy and altruism in the context of natural selection.

Human security is an emerging school of thought which challenges the traditional, state-based conception of security and argues that a people-focused approach to security is more appropriate in the modern interdependent world and would be more effective in advancing the security of individuals and societies across the globe.

04. Ipso Facto Legal Rights Theory

According to the recommendation of human rights scholar Barrister Dr Mohammed Yeasin Khan LLB Honours, LLM, PhD, PGDL, Barrister-at-Law (Lincoln’s Inn), UK: ‘Right’ being synonymous of ‘legal’ and antonymous of both ‘wrong’ and ‘illegal’, every ‘right’ of any human person is ipso facto a ‘legal right’ which deserves protection of law and legal remedy irrespective of having been written into the law, constitution or otherwise in any country.

05. Man for Man Theory of World Peace

According to Barrister Dr Mohammed Yeasin Khan: The only way ‘(a) to make the world terrorism and war free and also free from hunger, poverty, discrimination and exploitation; (b) to establish rule of law and economic, political and social justice; and (c) to confirm freedom of man, peace and development worldwide’ is protection and promotion human rights as ‘Ipso Facto Legal Rights’ and the unity of the world community in one and single theory of ‘man for man’ correlative, interdependent and ‘one to one-cum-one for other’ approach, namely, the ‘Man for Man Theory’ approach of world peace.

06. Critiques of human rights

The idea of human rights is not without its critics. Jeremy Bentham, Edmund Burke, Friedrich Nietzsche and Karl Marx are examples of historical philosophers who criticised the notion of natural rights. Alasdair MacIntyre is a leading contemporary critic of human rights. His criticisms are discussed below.

Edmund Burke on Natural Rights

Edmund Burke was an 18th-century philosopher, political theorist and statesman largely associated with the school of conservatism. His views on natural rights are best articulated in Reflections on the Revolution in France, which directly attacked the Declaration of the Rights of Man and the Citizen (1789) and its authors.

A great deal of Burke’s uneasiness of the Declaration lies in the drafter’s abandonment of the existing establishment. For Burke, constitutional legitimacy was derived not from the Rousseauian doctrine of general will, but from a form of inherited wisdom. He thought that it was arrogant and limiting for the drafters of the Declaration to cast aside traditional notions that had stood the test of time. Although it may seem to the drafters that they had abandoned the shackles of tradition, for Burke, they had limited their findings to the narrow minded conception of one person or group. This is the grounding from which Burke’s attack of the Declaration is based.

Burke did not deny the existence of natural rights; rather he thought that the a priori reasoning adopted by the drafters produced notions that were too abstract to have application within the framework of society. In stating that “the pretended right of these theorists are all extremes; and in a proportion as they are metaphysically true, they are morally and politically false”, Burke identified that abstract rights are meaningless without a societal framework:

"What is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them." -  Edmund Burke

In contrast to Locke, Burke did not believe the purpose of government was to protect pre-existing natural rights; he believed “the primitive rights of man undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction.” For Burke it was the government, as a result of long social evolution, that transformed the meaningless natural rights into the practical advantaged afforded to citizens.

It was not the rights themselves, as much as the level of abstraction and the placing of them above government which Burke found dangerous. He stated “those who pull down important ancient establishments, who wantonly destroy modes of administration, and public institutions… are the most mischievous, and therefore the wickedest of men”. For Burke politics had no simple answers, and definitely no overarching, universal maxims such as those expressed in the Declaration. Rather the rights afforded to individuals were to be assessed in the context of the social framework. However, he acknowledged that the simplicity of the Declaration was attractive and feared its ability to undermine social order. Burke believed that the absolute nature of these principles of abstraction were inherently revolutionary; they were uncompromising and any derogation from the principles a reason to rise up in arms. This was a problem because;

"All government… is founded on compromise and barter. We balance inconveniences; we give and take; we remit some rights, that we may enjoy others; and we choose rather to be happy citizens, than subtle disputants."  - Edmund Burke

The natural rights “Against which there can be no prescription; against these no agreements is binding” gave the revolutionaries the tools to destroy the very society that Burke believed afforded them with rights. In this way Burke thought the rights contained in the Declaration would lead to “the antagonist world of madness, discord, vice, confusion, and unavailing sorrow.”

Jeremy Bentham on natural rights

The 18th-century Utilitarian philosopher Jeremy Bentham criticised the Declaration of the Rights of Man and the Citizen in his text Anarchical Fallacies. He famously asserted that the concept of natural rights was “nonsense upon stilts”. Bentham criticised the Declaration both for the language that it adopted and the theories it posited, stating; “Look to the letter, you find nonsense; look beyond the letter, you find nothing.”

One of the critiques Bentham levelled against the Declaration was its assertions of rights in the form of absolute and universal norms. He identified that absolute rights possessed by everyone equally are meaningless and undesirable. They lack meaning because if everyone has, for example, unbounded liberty, there is nothing precluding them from using that liberty to impinge on the liberty of another. In this way “human government and human laws” are required to give some bounds to rights in order for them to be realised. Even if advocates of absolute rights recognise this necessity, as the proponents of the Declaration did, Bentham argues that it is in vain. “It would be self-contradictory, because these rights are, in the same breath which their existence is declared, declared to be impresciptable; and impriscriptable… means nothing unless it excludes the interference of the laws.”

In addition to this contradiction, Bentham warned of the dangers of couching rights in absolute terms. A government that is able to protect every person’s right absolutely and equally is a utopian aspiration, but the Declaration couches it as the conditions for its legitimacy. “Against every government which fails in any degree of fulfilling these expectations, then, it is the professed object of this manifesto to excite insurrection.” Bentham does not deny that there are some laws that are morally wrong; his uneasiness is in easily justifying a revolutionary call to arms – with the violence, chaos and destruction associated with it – based on a repugnant law.

Of the theoretical faults, Bentham thought that natural rights were a construction adopted to pursue the selfish aims of the drafters, of which no logical basis could be found. He acknowledged that it may be desirable to have rights, but “a reason for wishing that a certain right were established, is not that right; want is not supply; hunger is not bread.” To establish rights existed by virtue of laws enacted by a sovereign was logically sound, but to assert rights established by nature was not. “A natural right is a son that never had a father.”

Not only did Bentham think that there was no logical basis for the theory of natural rights, but he believed that their individualistic approach was harmful to society. 

"The great enemies of public peace are the selfish and the dissocial passions – necessary as they are – the one to the very existence of each individual, the other to his security…What has been the object, the perpetual and palpable object, of this declaration to pretended rights? To add such force as possible to these passions, but already too strong, - to burst the cords that hold them in, - to say to the selfish passions, there – everywhere – is your prey! - to the angry passions, there –everywhere- is your enemy. Such is the morality of this celebrated manifesto." - Jeremy Bentham

Bentham thought that society was dependent upon people's ability to pursue the greater good, not just the short-term satisfaction of their own desires. The advancement of natural rights, which he saw as celebrating selfishness, was to provide the means to break down the social community that makes human life bearable.

Marxist Critique of Human Rights

In On the Jewish Question, Karl Marx criticized Declaration of the Rights of Man and of the Citizen as bourgeois ideology:

Above all, we note the fact that the so-called rights of man, the droits de l'homme as distinct from the droits du citoyen, are nothing but the rights of a member of civil society – i.e., the rights of egoistic man, of man separated from other men and from the community. ... according to the Declaration of the Rights of Man of 1791:

"Liberty consists in being able to do everything which does not harm others."

Liberty, therefore, is the right to do everything that harms no one else. The limits within which anyone can act without harming someone else are defined by law, just as the boundary between two fields is determined by a boundary post.

and that:

Security is the supreme social concept of bourgeois society, the concept of the police, the whole society exists only to ensure each of its members the preservation of his person, his rights and his property.

Thus for Marx, liberal rights and ideas of justice are premised on the idea that each of us needs protection from other human beings. Therefore, liberal rights are rights of separation, designed to protect us from such perceived threats. Freedom on such a view, is freedom from interference. What this view denies is the possibility — according to Marx, the fact — that real freedom is to be found positively in our relations with other people. It is to be found in human community, not in isolation. So insisting on a regime of rights encourages us to view each other in ways which undermine the possibility of the real freedom we may find in human emancipation.

Marxist critical theorist Slavoj Žižek argued that: "liberal attitudes towards the other are characterized both by respect for otherness, openness to it, and an obsessive fear of harassment. In short, the other is welcomed insofar as its presence is not intrusive, insofar as it is not really the other. Tolerance thus coincides with its opposite. My duty to be tolerant towards the other effectively means that I should not get too close to him or her, not intrude into his space—in short, that I should respect his intolerance towards my over-proximity. This is increasingly emerging as the central human right of advanced capitalist society: the right not to be 'harassed', that is, to be kept at a safe distance from others." and "universal human rights are effectively the right of white, male property-owners to exchange freely on the market, exploit workers and women, and exert political domination."

British sociologist Robert Fine claims that the key to Marx’s argument was to rebut the radicalism Bauer espoused: a radicalism that not only denied the rights of Jews but at once trashed the rights of man and citizen as such. What Marx stood for in the Jewish Question as in his earlier writings more generally was a philosophy of right. Fine believes what Marx stood against was a spiritless radicalism that revealed its inhumanity not only through its hostility to Jews but also through its hostility to the idea of right." Moreover, Fine argued that Marx argued that the society that gives rise to the idea of rights is the same as that which gives rise to the commodity form. They are two sides of the same medal. It is a society based on production by independent producers whose contact with each other is mediated through the exchange of products on the market. These producers are formally free to produce what and how much they wish. They are formally equal in that no producer can force others to produce against their will or expropriate their products against their will. They are self-interested in that they are all entitled to pursue their own private interests regardless of what others think or do. Their contact with other producers takes the form of free and equal exchanges in which individuals exchange their property in return for the property of another and this exchange of unneeded things in return for useful things appears to be done for the mutual benefit of each party.

Fine also claims that for Marx, exchange relations appear to be formed among free and equal property owners who enter a voluntary contract in pursuit of their own self-interest. Fine cites what he believes to be Marx's point about how in exchange lies the clue to all modern conceptions of freedom and equal right:

Although individual A feels a need for the commodity of individual B, he does not appropriate it by force, nor vice versa, but rather recognise one another reciprocally as proprietors, as persons whose will penetrates their commodities. Accordingly, the juridical moment of the Person enters here… all inherent contradictions of bourgeois society appear extinguished ... and bourgeois democracy even more than the bourgeois economists takes refuge in this aspect.: (Marx, Grundrisse:243, 251)

Furthermore, the parties to the exchange must place themselves in relation to one another as persons whose will resides in those objects and must behave in such a way that each does not appropriate the commodity of the other and alienate his own, except through an act to which both parties consent. Marx characterised this sphere of commodity exchange as ‘a very Eden of the innate rights of man’ – the realm of Freedom, Equality, Property and Bentham:

‘Freedom because both buyer and seller of a commodity ... are determined only by their own free will....Equality because each enters into relations with the other as with a simple owner of commodities and they exchange equivalent with equivalent. Property because each disposes only what is his own. And Bentham because each looks only to his own advantage. The only force bringing them together is the selfishness, the gain and the private interest of each.: (Marx, Capital 1: 280)

Thus according to Robert Fine, Marx's basic criticism was that within political society people were seen as co-operative, while in their economic roles they were competitive, individualistic and egoistic. In short, the theory of rights expressed the division and alienation of human beings.

Alasdair MacIntyre on Human Rights

Alasdair MacIntyre is a Scottish philosopher who has published a number of works in a variety of philosophical fields, including political philosophy, ethics and metaphysics. MacIntyre criticises the concept of human rights in After Virtue and he famously asserts that “there are no such rights, and belief in them is one with belief in witches and in unicorns.”

MacIntyre argues that every attempt at justifying the existence of human rights has failed. The assertions by 18th century philosophers that natural rights are self-evident truths, he argues, are necessarily false as there are no such things as self-evident truths. He says that the plea 20th century philosophers made to intuition show a flaw in philosophical reasoning. MacIntyre then outlines that, although Dworkin is not wrong in asserting that the inability to demonstrate a statement does not necessitate its falsity, the same argument can be applied in relation to witches and unicorns.

MacIntyre made this critique of human rights in the context of a wider argument about the failure of the Enlightenment to produce a coherent moral system. Philosophers of the enlightenment sought to cast aside the discredited notions of hierarchy and theology as justifications for morality. Instead, MacIntyre argues, the enlightenment placed the individual as the sovereign authority to dictate what is right and wrong. However allegiances to historical notions of morality remained and philosophers sought to find a secular and rational justification for existing beliefs. The problem, MacIntyre maintains, is that theological morality was developed to overcome defects in human nature; to posit an example of the ideal. Without this notion of ‘perfect humanity’ the only remaining foundation to build a moral theory on was the foundation of imperfect human nature. For MacIntyre, the result was a collection of moral stances, each claiming to have a rational justification and each disputing the findings of the rival notions.

MacIntyre believes that a number of the moral debates that occur in society can be explained as a result of this failure of the “Enlightenment Project”. Human rights are an example of a moral belief, founded in previous theological beliefs, which make the false claim of being grounded in rationality. To illustrate how the principles lead to conflict, he gives the example of abortion; in this case the right of the mother to exercise control over her body is contrasted with the deprivation of a potential child to the right to life. Although both the right to liberty and the right to life are, on their own, considered morally acceptable claims, conflict arises when we posit them against each other.

Theory of value and property

Henry of Ghent articulated the theory that every person has a property interest in their own body. John Locke uses the word property in both broad and narrow senses. In a broad sense, it covers a wide range of human interests and aspirations; more narrowly, it refers to material goods. He argues that property is a natural right and it is derived from labour. In addition, property precedes government and government cannot "dispose of the estates of the subjects arbitrarily." To deny valid property rights according to Locke is to deny human rights. The British philosopher had significant impacts upon the development of the Government of the UK and was central to the fundamental founding philosophy of the United States. Karl Marx later critiqued Locke's theory of property in his Theories of Surplus Value, seeing the beginnings of a theory of surplus value in Locke's works. In Locke's Second Treatise he argued that the right to own private property was unlimited as long as nobody took more than they could use without allowing any of their property to go to waste and that there were enough common resources of comparable quality available for others to create their own property. Locke did believe that some would be more "industrious and rational" than others and would amass more property, but believed this would not cause shortages. Though this system could work before the introduction of money, Marx argued in Theories of Surplus Value that Locke's system would break down and claimed money was a contradiction of the law of nature on which private property was founded.

08. Relevance of ratification by states

The process of committing to international human rights treaties involves signing international human rights treaties

If Australia signs an international human rights treaty it is making a preliminary endorsement of the treaty.

Signing the instrument does not create a binding legal obligation but does demonstrate the State’s intent to examine the treaty domestically and consider ratifying it.

Ratifying international human rights treaties

States that are members of the UN can elect to ratify or accede to a treaty or convention. Ratification or accession is a voluntary undertaking by the State to be bound by the terms of the treaty under international law.

Though accession has the same effect as ratification, the process differs. In the case of ratification, the State first signs and then ratifies the treaty. The process for accession has only one step - it is not preceded by an act of signature.

If a State chooses to ratify and 'become party' to a human rights treaty, that country is obliged to ensure that its domestic legislation complies with the treaty's provisions.

In the case of major human rights treaties, the obligations of State Parties include regular reporting to and scrutiny by, UN human rights bodies. If a State fails to comply with the terms of the treaty, that country will be in breach of international law.

01. Reservations and understandings

Reservations and Understandings are statements made by State Parties at the end of a Convention, which limit some of their obligations under the terms of the Convention.

The Australian Government has made reservations to specific Articles in Conventions where the requirement of the Article conflicts with an area of domestic law. 

Making international human rights treaties part of domestic law

Each State must create legislation that incorporates the articles of Conventions that have been ratified. This process can differ according to each State’s legal system.

For example, in the United States all international conventions are automatically considered part of federal law after the convention has been ratified, owing to their Constitution. In Australia however, federal legislation needs to be created by parliament for a convention to be binding in Australia. Depending on the area of law, Australian states and territories may also be required to introduce relevant legislation.

Human Rights Treaty	Year of adoption/entry into force	Number of ratifying states
International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)	1965/1969	175
International Covenant on Economic, Social and Cultural Rights (ICESCR)	1966/1976	160
International Covenant on Civil and Political Rights (ICCPR)	1966/1976	167
Convention on the Elimination of all Forms of Discrimination against Women (CEDAW)	1979/1981	187
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)	1984/1987	153
Convention on the Rights of the Child (CRC)	1989/1990	193
International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (ICRMW)	1990/2003	46
Convention on the Rights of Persons with Disabilities (CPD)	2006/2008	126
Convention for the Protection of all Persons from Enforced Disappearance (CED	2007/2010	37
(Last update: September 2012, www.ohchr.org)

09. Impact of ratifying with reservation

Reservations are made by states make upon ratification of international treaties. In them, states declare under which conditions they consider themselves to be bound by a treaty.

For example Germany withdrew her reservation to the Convention on the Rights of the Child in 2011. The reservation excluded children without German citizenship or legal residency status from protection by the CRC. Most reservations have been made to the Convention on the Elimination of all Discrimination against Women (CEDAW), and primarily concerned those rights related to equal rights of women in marriage and divorce. A number of Islamic countries require that the respective human rights treaty provisions be interpreted in light of Islamic law.

Article 19-21 of the Vienna Convention on the Law of Treaties 1969 allows states to enter reservations unless these are refused by other states or contrary to the objective of the treaty in question. In its General Comment No. 24, the Human Rights Committee argued in 1994 that the provisions of the Vienna Convention cannot be applied to human rights treaties because:

·                     Human rights treaties do not regulate the relations between states, but guarantee the rights of individuals vis-a-vis the state. States should therefore not be allowed to rule on the validity of reservations, but the treaty bodies.

·                     All human rights are closely interrelated. Reservations to individual rights would impact the structure of the treaty, and unhinge its objectives.

In 2011, the International Law Commission – a panel of experts appointed by the General Assembly of the United Nations tasked with the development of international law - presented criteria for the assessment of reservations to human rights treaties which are based on the reasoning of the Human Rights Committee.

For further reading

·                     Committee on the Elimination of Discrimination against Women (CEDAW): Working paper on reservations in the context of individual communications (PDF, 46 KB), CEDAW/C/2008/II/WP.2 (2008),

·                     Bruno Simma & Gleider I. Hernandez: Legal Consequences of an Impermissible Reservation to a Human Rights Treaty:  Where do we stand?; In: Enzo Cannizzaro (ed.): The Law of Treaties Beyond the Vienna Convention (2011) , (chapter 4, 60-85 pp.)

·                     International Law Commission: see Principles 3.1.5.6 and 3.2 in: Guide to Practice on Reservations to Treaties (PDF, 154 KB) (2011), and in: Commentary (DOC, 3.6 MB) (2011)

10. Meaning of Legal Instrument

International human rights instruments are treaties and other international documents relevant to international human rights law and the protection of human rights in general. They can be classified into two categories: declarations, adopted by bodies such as the United Nations General Assembly, which are not legally binding although they may be politically so as soft law; and conventions, which are legally binding instruments concluded under international law. International treaties and even declarations can, over time, obtain the status of customary international law.

International human rights instruments can be divided further into global instruments, to which any state in the world can be a party, and regional instruments, which are restricted to states in a particular region of the world.

Most conventions establish mechanisms to oversee their implementation. In some cases these mechanisms have relatively little power, and are often ignored by member states; in other cases these mechanisms have great political and legal authority, and their decisions are almost always implemented. Examples of the first case include the UN treaty committees, while the best exemplar of the second case is the European Court of Human Rights.

Mechanisms also vary as to the degree of individual access to them. Under some conventions – e.g. the European Convention on Human Rights – individuals or states are permitted, subject to certain conditions, to take individual cases to the enforcement mechanisms; under most, however (e.g. the UN conventions), individual access is contingent on the acceptance of that right by the relevant state party, either by a declaration at the time of ratification or accession, or through ratification of or accession to an optional protocol to the convention. This is part of the evolution of international law over the last several decades. It has moved from a body of laws governing states to recognizing the importance of individuals and their rights within the international legal framework.

The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights are sometimes referred to as the international bill of rights.

11. Binding Nature

International standard-setting instruments can be divided into two categories: binding instruments, also called 'hard law', and non-binding documents also called 'soft law'.

The binding instruments, composed of Treaties (which can have different titles such as Conventions, Covenants, Pacts and Agreements) confer legal obligations upon States Parties. The non-binding documents, mainly composed of Declarations and Recommendations provides, as a rule, guidelines and principles and imposes moral obligations. Both binding and non-binding instruments can have an international, regional or subregional scope.

The international legal instruments on the economic, social and cultural rights, and on the right to education, are presented here under ‘‘binding instruments’’, ‘‘non-binding instruments’’ and ‘‘programmes and action plans’’. At the same time, they are in chronological order.

01. Binding Instruments

Binding instruments, or 'hard law', establish rules expressly recognized by the contracting States (Article 38 (1) of the Statute of the International Court of Justice). States should explicitly express their consent through a specific procedure to be bound to the terms of a treaty.

The procedure of adoption and entry into force of treaties was codified by the Vienna Convention on the Law of Treaties adopted on 22 may 1969. It is composed of three main stages: negotiation (to reach an agreement on the text), authentication (formalized by the signature) and ratification. Ratification should be made in accordance with constitutional law of each country. In general, States must obtain the authorization of their national legislative body (Parliaments) to do so. Once this procedure is accomplished, the Head of State deposits a ratification instrument with the depositary of the treaty (generally the Head of the intergovernmental organization or the hosting country of the international conference by which it was adopted).

By ratifying the instrument, States explicitly recognize their obligation to respect the terms of the treaty. States that have not signed the document may also become a Party to the treaty by using a simplified procedure called adherence, accession or acceptation.

Every treaty contains normative provisions defining the legal obligations, and operating provisions describing the technical conditions for its entry into force, including the minimum required number of ratifications to be obtained. Once these conditions are satisfied the treaty enters into force and becomes legally binding for States Parties.

In accordance with the principle of primacy of the international law over national law, States Parties are bound to adapt their national legislation to the provisions of the treaty and introduce all relevant measures in their national legal system to implement their obligations under this treaty.

02. Non-binding Instruments

Non-binding instruments, or 'soft law', provide guidelines of conduct, which are neither strictly binding norms of law, nor completely irrelevant political maxims. They operate in a grey zone between law and politics. Main examples of non-binding instruments are declarations, recommendations and resolutions.

Declarations do not create legal obligations for States that adopt them. They reflect principles on which these States agree at the time of their adoption and proclaim standards, which though non-binding, impose nevertheless moral obligations. Many declarations have a strong moral value. Some of them can even become 'semi-binding' as is the case of the Universal Declaration of Human Rights (UDHR) adopted in 1948. The history of the progressive development of human rights law has shown that declarations often precede the adoption of a binding instrument. For example, amongst many others, the adoption of the Convention on the Rights of the Child in 1989 was preceded by the adoption of the Declaration on the Rights of the Child in 1959; and the adoption of the Convention on the Elimination of All Forms of Discrimination against Women in 1979 was preceded by the proclamation of the Declaration on the Elimination of All Forms of Discrimination against Women in 1967.

Recommendations are another form of non-binding instruments, which are suggestions of international organs inviting States to take legislative or other steps. As such, recommendations are intended to influence the development of national laws and practices.

Resolutions are formal expressions of opinion by a legislative body or a public meeting. The resolutions made by the United Nations General Assembly or the General Conference of UNESCO, are therefore an expression of the opinion of the Member States of these Organizations.
03. Programmes and Action Plans

Binding as well as non-binding legal instruments are often developed or implemented through programmes and action plans, which are policy documents containing the steps that might be taken. An example of an action plan is The Dakar Framework for Action: Education for All: Meeting our Collective Commitments, adopted by the World Education Forum in April 2000.

04. Mandatory character of particular provisions

Under the principle of pacta sunt servanda (‘agreements must be kept’), treaties are binding on the parties and must be performed by them in good faith (VCLT article 26). But this does not mean that every provision of a treaty creates a legal obligation, the breach of which entails non-compliance. Although they are sometimes confused, the issue of an instrument’s legal form is distinct from the issue of whether particular provisions create legal obligations. The former requires examining the instrument as a whole, and depends on whether the instrument is in writing and is intended to be  governed by international law, while the latter depends on the language of the particular  provision in question – for example, whether it is phrased as a ‘shall’ or a ‘should’.

Treaties often contain a mix of mandatory and non-mandatory elements. For example, Article 4.1 of the UNFCCC establishes legal obligations, because it specifies what parties ‘shall’ do to address climate change. By contrast, Article 4.2 formulates the  target for Annex I parties to return emissions to 1990 levels by the year 2000 as a non- binding ‘aim’, rather than as a legal commitment.

Similarly, the Paris agreement might contain a mix of mandatory and hortatory provisions relating to parties’ nationally determined contributions and other issues. For example, it might include commitments that parties maintain, report on, and update their NDCs throughout the lifetime of the agreement, but make the achievement of NDCs only hortatory. The choice regarding NDC-related obligations is therefore not simply whether to have legally binding NDCs or not. Rather, the question is what specific obligations, if any, parties will have with respect to their NDCs – and, in particular, whether these obligations will be purely procedural or also substantive in character.

05. Distinguishing the concept of legally binding from other dimensions of bindingness

What is the import of saying that the Paris agreement is a legal instrument or that one of its provisions is legally binding? It is difficult, if not impossible, to answer this question in a non-circular way. Ultimately, legal bindingness reflects a state of mind – most importantly of officials who apply and interpret the law (judges, executive branch officials, and so forth), but also to some degree of the larger community that the law purports to govern. It depends on what the British philosopher HLA Hart referred to as their ‘internal point of view’, a sense that a rule constitutes a legal obligation and that compliance is therefore required rather than merely optional (Hart 1994).

The concept of ‘legally binding’ is distinct from several other dimensions of ‘bindingness’ (Goldstein et al.2001, Bodansky 2009,Stavins et al. 2014). First, it differs from whether an instrument is justiciable – that is, whether the instrument can be applied by courts or other tribunals. In general, courts can apply only legal instruments, so justiciability depends on legal form. But the converse is not the case – the legally binding character of an instrument does not depend on whether there is any court or tribunal with jurisdiction to apply it.

Second, the concept of ‘legally binding’ is distinct from that of enforcement. Enforcement typically involves the application of sanctions to induce compliance. As with justiciability, enforcement is not a necessary condition for an instrument to be legally binding.

If an instrument is created through a recognised lawmaking process, then it is legally binding, whether or not there are any specific sanctions for violations. Conversely, enforcement does not depend on legal form, since non-legal norms can also be enforced through the application of sanctions.

Third, the legal form of an agreement is distinct from its precision. Of course, the more precise a norm, the more it constrains behaviour. But legally binding instruments can be.

For example, US law provides for the imposition of trade sanctions against states that ‘diminish the effectiveness’ of an international conservation program, whether or not a state has committed any legal violation (Pelly Amendment, 22 USC 1978).

International legal agreements provide no mechanisms for judicial application and little enforcement. So it is important to distinguish the different dimensions of bindingness. Although the issue of legal form is binary – the Paris agreement either will or will not be a legal instrument, and its particular provisions either will or will not be legally binding (Raustiala 2005) – the Paris agreement could be more or less binding along other dimensions. For example, it could be more or less precise, and establish weaker or stronger mechanisms to promote accountability and compliance.

Does the legally binding character of a rule matter and, if so, how?

Will the Paris agreement be more effective in addressing climate change if it is a legal rather than a political instrument, and if parties’ NDCs are legally binding obligations rather than non-binding aims? How much does the legal form of the Paris outcome matter? Opinions on these questions differ widely.

The effectiveness of an international regime is a function of three factors: (1) the ambition of its provisions; (2) the level of participation by states; and (3) the degree to which states comply (Barrett 2003). Those who argue for the importance of a legally binding outcome in Paris focus primarily on compliance. But the legally binding character of the Paris agreement and its constituent elements could also affect ambition and participation, potentially in negative ways. So even if legal bindingness promotes compliance, as proponents argue, it may not increase effectiveness if its positive effects on compliance are outweighed by negative effects on participation and/or ambition. 

In theory, the legal character of a norm might promote compliance in a number of ways, even in the absence of judicial application or enforcement (Abbott and Snidal 2002). First, treaties must be formally ratified by states, usually with the approval of the legislature. So acceptance of a treaty generally signals greater domestic buy-in and commitment than acceptance of a political agreement, which typically can be done by the executive acting alone.

Second, the internal sense of legal obligation discussed earlier, if sincerely felt, means that legal commitments exert a greater ‘compliance pull’ than political commitments, independent of any enforcement.

Third, to the extent that states take legal commitments more seriously than political commitments, this not only makes them more likely to self-comply; it causes them to judge non-compliance by other states more harshly. As a result, states risk greater costs to their reputation and to their relations with other states if they violate a treaty commitment than a political commitment, making non-compliance less attractive.

Fourth, legally binding agreements tend to have greater effects on domestic politics than political agreements, through their influence on bureaucratic routines and by helping to mobilize and empower domestic advocates.

Finally, legal obligations are at least capable of being applied by courts. So if legalised dispute settlement is available, either in an international tribunal or a state’s domestic courts, then the legal character of a norm would be a necessary condition of using these procedures.

Perhaps the best evidence that states take legal commitments more seriously than political commitments is that they are more careful in negotiating and accepting them – and, in many states, acceptance of treaties requires special procedures, such as legislative approval. This caution would be irrational if legal bindingness didn’t matter. The fact that treaties are more difficult to negotiate and to approve than non-legal instruments suggests that states view them as imposing a greater constraint on their behaviour.

But while there are good reasons to believe that legal form enhances compliance, other factors are also important.

Transparency and accountability mechanisms make it more likely that poor performance will be detected and criticised, thereby raising the reputational costs for the state concerned, regardless of whether a norm is legally binding. Like legal commitment, transparency and accountability mechanisms can also help mobilise and empower domestic supporters of an agreement. In addition, the precision of an instrument can enhance effectiveness, both because precise norms exert greater normative guidance and because violations are more apparent.

The 1975 Helsinki Declaration has been one of the most successful human rights instruments, despite its explicitly non-legal nature, because of its regular review conferences, which provided domestic advocates with a basis for mobilisation and which focused international scrutiny on the Soviet bloc’s human rights performance.

Similarly, with respect to ambition, the legal character of an agreement can cut both ways. On the one hand, it may make states willing to assume more ambitious commitments, by giving them greater confidence that their actions will be reciprocated by others. On the other hand, it may also have a negative effect on ambition, if states are more concerned about locking themselves into potentially costly commitments than about non-compliance by other states.

Finally, since states are cautious about entering into legal agreements (or have special requirements for ratification that raise additional hurdles), making an instrument legally binding may reduce participation. The US declined to participate in the Kyoto Protocol, in part, because of the legally binding nature of Kyoto’s emission targets and the impossibility of getting Senate consent to ratification. Similarly, far fewer countries, arguably, would have participated in the Copenhagen Accord, by putting forward emissions pledges, if the Accord had been a legally binding instrument that made countries’ pledges legally binding.

12. Types of Instruments

In international law, to regulate the day to day relations between the states, they enter into a number of agreements. These agreements establish legal relations between states and crystallize the rules of international law to a maximum extent. From the evolution of international law till date, numerous agreements have been entered by states. However, various instruments entered by states in international relations are often used with different names; in general, they are referred to as treaties. The different names of the various legal instruments are treaties, covenants, charter, conventions, protocol, and declarations.

Before discussing the various types of instruments, for a general understanding the following note is very important to know about the procedural aspect of the binding nature of these instruments. In international law, any agreement or treaty negotiated or signed by states will not automatically come into force. In the negotiating stage itself, depending upon the number of states willing to sign the document, they fix a certain number of states to ratify such agreement. Accordingly, after ratification of such number of member states, the particular document will come into operation. This means, any legal instrument entered in a particular year either may come into effect immediately or may take a longer period to come into existence. For example the Vienna Convention on the Law of Treaties was adopted by the States in 1969 (it is to be remembered that in international law most of the agreements or instruments are named after the place in which country it is negotiated or signed). However, it came into effect only in 1980.

Though an instrument's coming into force maybe another year, it is still linked to the year in which it was originally adopted. Even if an instrument has come into existence due to ratification, it will be binding only on those states, which have ratified the treaty, and not applicable to states who signed. This means, after signature of a treaty, a state has to ratify it specifically. At times even if a state ratifies a particular instrument, it may expressly inform the Secretary General of the United Nations in whose office all the treaties are deposited that it is not going to accept all the provisions of the agreement and reserving some of them in the agreement. If the request receives the acceptance of international community, then its obligations are limited only to such provisions for which no reservation is made. This facilitates the states to take care of their local interests within the country. For example in the Convention on the Elimination of All Forms of Discrimination Against Women, popularly referred to as CEDAW, the Government of India has reserved a number of provisions stating that if it accepts such provisions, it may not be able to pass necessary legislation in municipal law, as it would result in disturbing the communal harmony between various religions. (The provision for common civil code is one among the main provision reserved by India.)

01. Convention

A UN Covenant or Convention is a legally-binding treaty. When governments ratify a treaty, thereby becoming a “party” to it, the State agrees to put into place domestic measures and legislation compatible with their treaty obligations and duties. Most UN treaties have two dates – the date upon which it was “adopted” ( i.e. written, agreed to and opened for signatures) and the date it “comes into force” when the required conditions outlined in the treaty are met, including a specified number of State signatures.

02. Covenant

A Convention or Covenant is a multilateral agreement entered by States to bring in new norms or to settle existing conflicting norms of international law. A Convention may take a long time for the states to adopt into their municipal legislations after the technical procedures are completed. At times, they may even renegotiate to settle the conflicting issues by entering into bilateral agreements. Whereas in the case of covenant, they are bound to implement the norms by enacting legislation. The covenants normally deal with the general welfare of the people across the world establishing duties on the states to protect the interests of individuals at the national level. The Covenants on Civil and Political Rights, Economic, Social and Cultural Rights have led to every government to give effect to a number of rights and duties guaranteed to individual by the States.

03. Charter

Charter and Statute

Any legal document or agreement entered by sovereign states defining the principles of the functioning, structure, and powers of an international organization is referred to as a Charter or Statute. For example, the Charter of the United Nations; Statute of the International Court of Justice, etc.

Charter of the United Nations

Preamble

We the Peoples of the United Nations Determined

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm 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, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom,

And for these Ends

to practice tolerance and live together in peace with one another as good neighbors, and

to unite our strength to maintain international peace and security, and

to ensure by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and

to employ international machinery for the promotion of the economic and social advancement of all peoples,

Have Resolved to Combine our Efforts to Accomplish these Aims

Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

CHAPTER I

PURPOSES AND PRINCIPLES

Article 1

The Purposes of the United Nations are:

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

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a center for harmonizing the actions of nations in the attainment of these common ends.

04. Declaration

A UN Declaration is a non-legally binding document, inspirational in its intent, usually written at a time when there is discord on specific language but general understanding on the importance of an issue. By setting common language and vision, a Declaration often lays the foundation for future Covenants and Conventions.

05. Treaty

Treaty

The term treaty had no exact definition until 1969. In 1969, to develop the legal principles and to state the binding nature of legal instruments, a convention was adopted namely, Vienna Convention on the Law of Treaties, 1969. According to the Convention, a treaty is an international agreement entered between states in a written form, regulated by the principles of international law whatever may be title of such agreement. The principles of an instrument may be stated in a single document or may spread into two or more documents. In case if they are spread into more than one, all the documents and principles to be read together for the binding nature of an instrument or treaty.

Bilateral Treaties

Bilateral treaty means any agreement entered between two nations confining to the matters relating to them with specific interest between them. (For example India entered a treaty with USA for the supply of Nuclear energy is a bilateral treaty). These treaties will come into force without ratification and reservations. These treaties will be in force, till the time the agreement achieves its objects. Once the purpose of the agreement is over, the agreement will be terminated by a notification.

Multilateral Treaty

Multilateral treaty means an agreement entered by majority of states to establish new principles of international law or codify to accept existing customary norms to regulate their multifarious activities. These treaties are similar to that of legislation of a country. These treaties will bring in uniform rules to regulate the relations of states. Since the beginning of nineteenth century till now, remarkable numbers of multilateral agreements have been entered by the states. In general, multilateral treaties are referred to as conventions or covenants. These treaties impose an obligation on states after the completion of technical formalities of signing, ratification, to give affect by passing appropriate legislation in the country. For example, the TRIPS agreement, necessitated the Government of India to enact specific legislations or bringing in modifications in the existing enactments such as Law of Copyright, Patents Act, Trade Marks, and Designs Act etc.

06. Optional Protocols

A Protocol is a diplomatic word used in international relations. However, in the perspective of international agreements, if any agreement entered into by the states parties and later they want to incorporate or remove any provision, they have to adopt modifications. These modifications will generally be in written form and need to be adopted after all the formalities (such as negotiation, communication, signature, ratification, reservation etc.) are completed, and annexed to the main agreement (treaty, convention, covenant etc.). Such annexes to the original treaty are referred to as Protocol. In case if a state ratifies a convention, and has not ratified the protocol, then such protocol will not be applicable to such states, which have not ratified. For example, India signed the Covenant on Civil and Political rights but has not ratified the protocols. Accordingly, no Indian citizen can complain to UN Human rights Commissioner for the Violation of their rights by the state, if no remedy is available nationally.

Core International Human Rights Treaties, Optional Protocols & Core ILO Conventions Ratified by India

CORE INTERNATIONAL HUMAN RIGHTS TREATIES & THEIR OPTIONAL PROTOCOLS RATIFIED BY INDIA	DATE OF ACCESSION / RATIFICATION
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965	India ratified the Convention on 3 December 1968 with certain reservations
International Covenant on Civil and Political Rights (ICCPR), 1966	India acceded to the Convention on 10 April 1979
International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966	India acceded to the Convention on 10 April 1979
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979	India signed the Convention on 30 July 1980 and ratified it on 9 July 1993 with certain reservations
Convention on the Rights of the Child (CRC), 1989	India acceded to the Convention on 11 December 1992
Convention on the Rights of Persons with Disabilities (CRPD), 2006	India ratified the Convention on 1 October 2007
Optional Protocol to the Convention on the Rights of the Child (CRC) on the Involvement of Children in Armed Conflict, 2000	India ratified the Optional Protocol on 30 November 2005
Optional Protocol to the Convention on the Rights of the Child (CRC) on the Sale of Children, Child Prostitution and Child Pornography, 2000	India ratified the Optional Protocol on 16 August 2005
CORE ILO CONVENTIONS RATIFIED BY INDIA	DATE OF ACCESSION / RATIFICATION
Forced Labour Convention, 1930 (No. 29)	India ratified Convention No. 29 on 30 November 1954
Equal Remuneration Convention, 1951 (No. 100)	India ratified Convention No. 100 on 25 September 1958
Abolition of Forced Labour Convention, 1957 (No. 105)	India ratified Convention No. 105 on 18 May 2000
Discrimination (Employment and Occupation) Convention, 1958 (No. 111)	India ratified Convention No. 111 on 03 June 1960

Core International Human Rights Treaties, Optional Protocols & Core ILO Conventions Not Ratified by India

CORE INTERNATIONAL HUMAN RIGHTS TREATIES & THEIR OPTIONAL PROTOCOLS NOT RATIFIED BY INDIA	STATUS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984	India signed the Convention on 14 October 1997, but has not ratified it yet
International Convention on Protection of the Rights of All Migrant Workers and Members of Their Families (ICMRW), 1990	India has not signed the Convention
International Convention for the Protection of All Persons from Enforced Disappearance (ICPAPED) 2006	India signed the ICPAPED on 6 February 2007, but has not ratified it yet
First Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), 1966	India has not signed the ICCPR Optional Protocol I
Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), 1989	India has not signed the ICCPR Optional Protocol II
Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR), 2008	India has not signed the ICESCR Optional Protocol
Optional Protocol to Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1999	India has not signed the Optional Protocol to CEDAW
Optional Protocol to Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 2002	India has not signed the Optional Protocol to CAT
Optional Protocol to the Convention on the Rights of Persons with Disabilities (CRPD), 2006	India has not signed the CRPD Optional Protocol
CORE ILO CONVENTIONS NOT RATIFIED BY INDIA	STATUS
Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)	India has not ratified ILO Convention No. 87
Right to Organize and Collective Bargaining Convention, 1949 (No. 98)	India has not ratified ILO Convention No. 98
Minimum Age Convention, 1973 (No. 138)	India has not ratified ILO Convention No. 138
Worst Forms of Child Labour Convention, 1999 (No. 182)	India has not ratified ILO Convention No. 182

07. Conferences

In international law, conferences play a vital role. For entering into multilateral treaties, the deliberations of the states in a particular area are referred to as conferences. At times, a conference may lay down general norms or review the existing law and may suggest remedial measures for its effective implementation. For example, The World Congress on Human Rights in 1993 introduced a number of principles which later led to the adoption of independent conventions, resolutions and declarations by the UN on a number of areas. It also recommended for the strict promotion of human rights education by all the countries.

08. Resolutions

These are normally legal documents adopted by the Security Council, General Assembly or by any other body of the United Nations. These resolutions adopted by the UN are binding upon the states dealing in their relations with each other.

09. Executive Orders

Executive orders are such orders issued by the sovereign authority of a state to give effect to the agreements that they have entered in. If there exist a contradiction on any aspect, they may state the policy of a particular state. These orders also play an important source in settling the disputes that arise between states in international law of human rights and other areas.

---

[i] V.R. Krisha Iyer, The Dialectics and Dynamics of Human Rights in India: Yesterday Today and Tomorrow, Tagore Law Lectures (New Delhi: Eastern Law House, 1999) 115

[ii] P.B. Mukherji, The Hindu Judicial System - The Cultural Heritage of India, Vol. II, 434-435. Cited by V.R. Krishna lyer, The Dialectics and Dynamics of Human Rights in India - ''Yesterday Today and Tomorrow, Tagore Law lectures (Calcutta: Eastern Law House. 1999) 115

[iii] P.B. Gajendra Gadkar, The Historical Background and Theoretic Basis of Hindu Law - The Cultural Heritage of India. Vol. II (Bombay: Asia Publishing House, 1965) 421

[iv] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) 79

[v] Paramjit S. Jaswal and Nishtha Jaswal, Human Rights and the Law, 1^st Ed. (New Delhi: Ashish Publishing House, 1995) 5

[vi] Rama Jois, Legal and Constitutional History of India, Part I (New Delhi: Universal Law Publishing Co. Ltd. 2001) 13.

14 S.N. Dhyani 141

[vii] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) 45

[viii] S.Subramanian, Human Rights: International Challenges, Vol. I (New Delhi: Manas Publications, 1997) 57

[ix] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) 45

[x] S.N. Dhyani, Fundamentals of Jurisprudence: The Indian Approach (Allahabad: Central Law Agency, 1992) 143

[xi] Sunil Deshta and Ms Kiran Deshta. "Philosophy of Right to Life, A Movement from Rigidity to Flexibility." Civil and Military Law Journal, Vol. 31: 3, 123. (July-September. 1995): 101

[xii] S.Subramanian, Human Rights. International Challenge. Vol.1 (New Delhi: Manas Publication. 1997) 56

[xiii] See generally Christian Tomuschat, Human Rights: Between Idealism and Realism (2003); Micheline Ishay, The History of Human Rights: From Ancient Times to the Globalization Era (2004); Jerome Shestack, ‘The Philosophic Foundations of Human Rights’ (1998) 20 Human Rights Quarterly 201

[xiv] Immanuel Kant, The Metaphysics of Morals (Mary Gregor trans, 1991 ed) at 44

[xv] See especially Thomas Paine, The Rights of Man (1792); John Stuart Mill, On Liberty (1859)

[xvi] see John Locke, ‘The Second Treatise: End of Civil Government’ in Ian Shapiro (ed), Two Treatises of Government and A Letter Concerning Toleration (2003) at 101

[xvii] des droits naturels et imprescriptibles de l’homme …’: see French Déclaration des droits de l'homme et du citoyen 1789 (‘Déclaration’) art 2.6

[xviii] See the Preamble to the Universal Declaration of Human Rights (1948). The Declaration was adopted and proclaimed by the United Nations General Assembly resolution 217 A (III) of 10 December 1948

[xix] Onuma Yasuaki, ‘Toward an Intercivilisational Approach to Human Rights’ in Joanne Bauer & Daniel Bell (eds), The East Asian Challenge for Human Rights (1999) 103 at 123.8

[xx] Francesca Klug, Values for a Godless Age: The History of the Human Rights Act and its Political and Legal Consequences (2000).9

[xxi] David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ (2001) 3 European Human Rights Law Review 245 at 257.10

[xxii] See Plato, The Republic at Book 4; St Thomas Aquinas, Summa Theologica at Question 50, art 9; Confucius, Analects at Book 20, vole 2; Surah at 12:178.11

[xxiii] John Rawls, A Theory of Justice (1971). 12

[xxiv] Costas Douzinas, The End of Human Rights (2000) at 321.13

[xxv] In Hobbes’ view ‘a Sovereign is as much subject, as any of the meanest of his People’ to ‘the Law of Nature’: see Thomas Hobbes, Leviathan (Revised Ed., 2002) at 237.14

[xxvi] Locke, above n5 at 160–1.Within legal theory, Ronald

[xxvii] see Jean-Jacques Rousseau, The Social Contract (G D H Cole trans, rev ed, 1978) at 17, 176

[xxviii] Ronald Dworkin, Taking Rights Seriously (2nd ed, 1978) at xi.17

[xxix] H L A Hart, Essays in Jurisprudence and Philosophy (1983) at 196–7.18

[xxx] see Edmund Burke, Reflections on the Revolution in France (1790) (William Todd ed, 1965) at 69, 67–75.19

[xxxi] see Karl Marx, ‘On the Jewish Question’ in Early Political Writings (1844) (Joseph O’Malley trans, 1994 ed) at 46.20

[xxxii] Jeremy Bentham, ‘Rights, Representation, and Reform: Nonsense Upon Stilts and Other Writings on the French Revolution’ in Philip Schofield, Catherine Pease-Watkin & Cyprian Blamires (eds), Essays on Legal Reform in French and English: Sixteen Scholarly Contributions (2002) 317–401 at 330.21

[xxxiii] Marie-Bénédict Dembour, Who Believes in Human Rights: Reflections on the European Convention (2006).26

[xxxiv] Michael Ignatieff, ‘Is the Human Rights Era Ending?’ New York Times (5 February 2002) at 25.29

[xxxv] Costas Douzinas, The End of Human Rights (2000) at 321.13

[xxxvi] Norberto Bobbio, The Age of Rights (Allan Cameron trans, 1996 ed) at 15–6