Sasi
K.G.
01. Evolution of the Concept of Human Rights
The evolutions of human rights have taken place
over centuries. Man had to struggle hard in order to achieve the ultimate goal
– living with dignity – which still has to be realized in various societies. India
itself is an example where women, children, dalits, bonded labourers, etc, is
trying hard to be a part of mainstream. In spite of all these, the world
recognized the U.N. Charter of 1945 which states that human rights are
inalienable aspect of mankind. The origin of human rights may be traced to the
theory of Natural Rights derived from the concept of Natural Law, as propounded
by ancient Greek Stoic Philosophers and further developed by Thomas Hobbes and
John Locke. The American and French Revolution gave further impetus to the
struggle of human rights. The evolution and development of human rights in the
international context can be traced to the Magna Carta and the English Bill of
Rights followed by the French Declaration and the American Bill of Rights. The
twentieth century witnessed the crystallization of the philosophy of Human
Rights when the United Nations adopted the UN Charter, 1945, The Universal
Declaration of Human Rights, 1948 and the International Covenants on Human
Rights with further emphasis to protection of rights of Women, Abolition of
Slavery, Racial Discrimination, Civil and Political Rights, Economic, Social and
Cultural Rights and most importantly the Rights of children. In India the
drafters of Constitution took care to incorporate Human Rights for its own
citizens as well as for the aliens.
02. Journey from Magna Carta to the Universal Declaration of Human Rights
01. Magna carta, 1215
The Magna Carta, also known as the Great Charter,
of 1215 is the most significant constitutional document of all human history. The
main theme of it was protection against the arbitrary acts by the king. The 63
clauses of the Charter guaranteed basic civic and legal rights to citizens, and
protected the barons from unjust taxes. The English Church too gained freedom
from royal interferences. King John of England granted the Magna Carta to the
English barons on 15th June 1215. The king was compelled to grant the Charter, because
the barons refused to pay heavy taxes unless the king signed the Charter.
02. The English Bill of Rights, 1689
The next source and avenue of the development of
the philosophy of human rights is the English Bill of Rights, enacted on
December 16, 1689, by the British Parliament. The British Parliament declared its
supremacy over the Crown in clear terms. The English Bill of Rights declared
that the king has no overriding authority. The Bill of Rights codified the
customary laws, and clarified the rights and liberties of the citizens. It lays
down the twin foundations, viz., the supremacy of the law, and the sovereignty
of the nation, upon which, the English constitution rests.
03. The United States Declaration of Independence, 1776
The first colonies to revolt against England were
the thirteen States of America. These states declared their independence from
their mother country on 4th July 1776. The declaration charges the king with
tyranny and affirms the independence of the American colonies. The declaration
of independence has great significance in the history of mankind as it
justified the right to revolt against a government that no longer guaranteed
the man’s natural and inalienable rights.
04. The French Declaration of the Rights of Man and the Citizen, 1789
The fall of Bastille and the abolition of
feudalism, serfdom and class privileges by the National Assembly ushered France
into a new era. On 4th August 1789, the National Assembly proclaimed the Rights
of Man and of the Citizens. The Rights were formulated in 17 Articles. The
Declaration of the Rights of Man and of the Citizen has far reaching importance
not only in the history of France but also in the history of Europe and
mankind. The declaration served as the death warrant for the old regime and
introduced a new social and political order, founded on the noble and
glittering principles. Further the declaration served as the basis for many
Constitutions, framed in different countries, where the framers gave top
priority to human rights.
05. United States Bill of Rights, 1791
The U.S. Constitution was enacted on 17th September
1787. The most conspicuous defect of the original constitution was the omission
of a Bill of Rights concerning private rights and personal liberties. Madison,
therefore proposed as many as twelve amendments in the form of Bill of Rights.
Ten of these were ratified by the State legislatures. These ten constitutional
amendments came to be known as the Bill of Rights. The overall theme of the
Bill of Rights is that the citizen be protected against the abuse of power by
the officials of the States.
06. FIRST Geneva Convention of 1864
The First Geneva
Convention for the Amelioration of the Condition of the Wounded in Armies in
the Field, held in 1864, is the first of four treaties of the Geneva Conventions. It defines "the basis on which rest the rules of
international law for the protection of the victims of armed conflicts."
After the first treaty was adopted in 1864, it was significantly revised and
replaced in 1906, 1929, and finally 1949. It is inextricably linked to the International Committee of the Red
Cross, which is both the instigator for the inception and
enforcer of the articles in these conventions.
The 1864 Geneva
Convention was instituted at a critical period in European political and
military history. Elsewhere, the American Civil War had been raging since 1861 (starting with the Battle of Fort Sumter), and would ultimately claim between 750,000–900,000
lives. Between the fall of the first Napoleon at the Battle of Waterloo in 1815 and the rise of his nephew in the Italian campaign of 1859, the powers had maintained peace in western Europe. Yet,
with the 1853–1856 conflict
in the Crimea, war had returned to Europe, and while those troubles
were "in a distant and inaccessible region" northern Italy was
"so accessible from all parts of western Europe that it instantly filled
with curious observers;" while the bloodshed was not excessive the sight
of it was unfamiliar and shocking. Despite its intent of ameliorating the
ravages of war, the inception of the 1864 Geneva Convention inaugurated "a
renewal of military activity on a large scale, to which the people of western
Europe…had not been accustomed since the first Napoleon had been
eliminated."
The movement for
an international set of laws governing the treatment and care for the wounded
and prisoners
of war began when relief activist Henri
Dunant witnessed the Battle of Solferino in 1859, fought between French-Piedmontese and Austrian armies in Northern Italy. The subsequent suffering of
40,000 wounded soldiers left on the field due to lack of facilities, personnel,
and truces to give them medical aid moved Dunant into action. Upon return to Geneva, Dunant published his account Un Souvenir de Solferino
and, through his membership in the Geneva
Society for Public Welfare, he urged the
calling together of an international conference and soon helped found the
International Committee of the Red Cross in 1863.
The International
Committee of the Red Cross, while recognising that it is "primarily the
duty and responsibility of a nation to safeguard the health and physical
well-being of its own people", knew there would always, especially in
times of war, be a "need for voluntary agencies to supplement…the official
agencies charged with these responsibilities in every country." To ensure
that its mission was widely accepted, it required a body of rules to govern its
own activities and those of the involved belligerent parties.
On 22 August 1864,
several European states congregated in Geneva, Switzerland and signed the Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field:
10.
Kingdom of Spain
Norway–Sweden signed in December.
It "derived
its obligatory force from the implied consent of the states which accepted and
applied them in the conduct of their military operations. Despite its basic mandates, listed below, it
was successful in effecting significant and rapid reforms. This first effort
provided only for:
1.
the immunity from
capture and destruction of all establishments for the treatment of wounded and
sick soldiers,
2.
the impartial
reception and treatment of all combatants,
3.
the protection of
civilians providing aid to the wounded, and
4.
the recognition of
the Red Cross symbol as a means of identifying persons and equipment covered by
the agreement.
Due to significant
ambiguities in the articles with certain terms and concepts and even more so to
the rapidly developing nature of war and military technology, the original
articles had to be revised and expanded, largely at the Second Geneva
Conference in 1906 and Hague Conventions of 1899 and 1907 which extended the articles to maritime
warfare. The 1906 version was updated
and replaced by the 1929 version when minor
modifications were made to it. It was again updated and replaced by the 1949
version, better known as the First Geneva Convention. However, as Jean
S. Pictet, Director of the International Committee of the Red
Cross, noted in 1951, "the law, however, always lags behind charity; it is
tardy in conforming with life's realities and the needs of humankind", as
such it is the duty of the Red Cross "to assist in the widening the scope
of law, on the assumption that…law will retain its value", principally
through the revision and expansion of these basic principles of the original
Geneva Convention.
The original ten
articles of the 1864 treaty have been expanded to the current 64 articles. This
lengthy treaty protects soldiers that are hors
de combat (out of the battle due to sickness or injury), as well
as medical and religious personnel, and civilians in the zone of battle. Among
its principal provisions:
·
Article 12
mandates that wounded and sick soldiers who are out of the battle should be
humanely treated, and in particular should not be killed, injured, tortured, or
subjected to biological experimentation. This article is the keystone of the
treaty, and defines the principles from which most of the treaty is derived,
including the obligation to respect medical units and establishments (Chapter
III), the personnel entrusted with the care of the wounded (Chapter IV),
buildings and material (Chapter V), medical transports (Chapter VI), and the protective
sign (Chapter VII).
·
Article 15
mandates that wounded and sick soldiers should be collected, cared for, and
protected, though they may also become prisoners of war.
·
Article 16
mandates that parties to the conflict should record the identity of the dead
and wounded, and transmit this information to the opposing party.
·
Article 9 allows
the International Red Cross "or any other impartial humanitarian
organization" to provide protection and relief of wounded and sick
soldiers, as well as medical and religious personnel.
There are
currently 196 countries party to the 1949 Geneva Conventions, including this first treaty but also including the
other three.
07. Declaration of International Rights of Man, 1929
After World War I, questions about human rights and
fundamental freedoms began to be raised. In 1929, the Institute of
International Law adopted the Declaration of International rights of Man. The Declaration
declared that fundamental rights of citizen, recognized and guaranteed by
several domestic constitutions, especially those of the French and the U.S.A
constitutions, were in reality meant not only for citizens of the states but
for all men all over the world, without any consideration.
08. Provision of the UN Charter, 1945
The United Nations Charter was drafted, approved
and unanimously adopted by all the delegates of the 51 states, who attended the
United Nations Conference at San Francisco. The UN Charter contains provisions
for the promotion and protection of human rights. The importance of the Charter
lies in the fact that it is the first official document in which the use of
‘human rights’ is, for the first time traceable and which also recognized the
respect for fundamental freedom.
09. Universal Declaration of Human Rights, 1948
After the establishment of the United Nations,
in order to discharge its commitment for the promotion of Human rights it has
established a small committee of nine members on February 15, 1946 to take
steps for the preparation of an International Bill of Human Rights.
In April that year, Mrs. Roosevelt was
appointed as its chairperson. Immediately, after the constitution, the
committee had its preliminary meeting and suggested for the increase of the
members, which was increased to eighteen. (The representatives of the following
countries were appointed. They were Australia, Belgium, Byelorussia of Soviet
Socialist Republic, Chile, China, Egypt, France, India, Iran, Lebanon, Panama, Philippines,
United Kingdom, United States, Union of Soviet Socialist Republics, Uruguay,
and Yugoslavia). On June 21, 1946, the Economic and Social Council framed the
terms of reference on which the committee needed to work for the drafting of
the Universal Declaration.
After the terms of reference to prepare a
universal text for the promotion and protection of human rights, the committee
later converted into the Commission on Human Rights, which functioned till
2006. This was later converted into a permanent inter governmental body known
as Human Rights Council, in 2006 by the General Assembly. At present, the
strength of the council is 47 states.
The Commission on Human Rights after
deliberations appointed, Mr. John Peters Humphrey of Canada as the drafting
committee chairman. John Humphrey prepared the first draft of the universal text.
After that Mr. Rene Cassin, a French Professor of Law and Judge prepared the
final version of the Universal Declaration of Human Rights [UDHR] with 30
Articles on the model of the Napoleon code. In 1968, he received the Noble
Peace Prize for drafting the UDHR.
After the final version of the Draft, the
General Assembly had finally adopted the Universal Declaration of Human Rights
on December 10, 1948. Since then, December 10 is celebrated as Human Rights day
to mark the Universal Declaration and the Fundamental Freedoms of human beings,
which were recognized universally without any discrimination as to race,
religion, sex, language and culture. However, since the declaration has no
legal validity and binding nature on the states under international law, the UN
asked the Commission to take further steps to convert it into two seperate
legal texts. Further, the Declaration being a mixture of both Civil and Political
Rights; Economic, Social and Cultural rights in one single text, it would be difficult
for the states to implement them.
After the Great Depression and World War II, both of
which had devastating effects on virtually every country, on 10 December 1948,
the UN General Assembly adopted the Universal Declaration of Human Rights
(UDHR). It was the first global expression of rights to which all human beings
are inherently entitled. Within a few decades, it came to be regarded as
possibly the single most important document created in the twentieth century.
Certainly, it has become the world standard for human rights. The UDHR is now
accepted as a contract between governments and their peoples. It has inspired 9
UN legally-binding covenants and conventions and more than 60 human rights
instruments which, together, constitute an international standard of human
rights.
The Universal Declaration of Human Rights was
adopted by the General Assembly of the United Nations on 10th December, 1948. The
Declaration consists of thirty Articles and covers civil, political, economic,
social and cultural rights for all men, women and children. The declaration
however is not a legally binding document. It is an ideal for all mankind.
The Universal Declaration
of Human Rights 1948
Article 3 Everyone has the right to life, liberty and security of
person.
Article 5 No one shall be subjected to torture, or to cruel,
inhuman, or degrading treatment or punishment.
Article 7 All are equal before the law and are entitled without any
discrimination to the equal protection of the law...
Article 8 Everyone has the right to an effective remedy by the
competent national tribunals for the acts violating the fundamental rights
granted to him by the constitution or by law.
Article 9 No one shall be subjected to arbitrary arrest, detention,
exile.
Article 10 Everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal in the determination of
his rights and obligations and of the criminal charge against him.
Article 11 1. Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to law in a public trial at
which he has had all the guarantees necessary for his defence.
2. No one shall be held guilty of any penal
offence on account of any act or omission which did not constitute a penal
offence under national or international law, at the time when it was committed.
Nor shall a heavier penalty be imposed than the one that was applicable at the
time the penal offence was committed.
Article 12 No one shall be subjected to arbitrary interferences with
his privacy, family, home or correspondence...
Article 14 1. Everyone has the right to seek and to enjoy in other
countries asylum from persecution.
2. This right may not be invoked in the case
of prosecutions genuinely arising from non-political crimes or acts contrary to
the purposes and principles of the United Nation.
03. International Bill of Rights
The Universal Declaration of Human Rights, 1948 was
not a legally binding document. It lacked enforcements. This deficiency was sought
to be removed by the U.N. General Assembly by adopting in December, 1966, the
two Covenants, viz,
1. International Covenant on Civil and Political
Rights and
2. International Covenant on Economic, Social and
Cultural Rights.
The two International Covenants, together with the Universal
Declaration and the Optional Protocols, comprise the International Bill of
Human Rights. The International Bill of Human Rights represents a milestone in
the history of human rights. It is a modern Magna Carta of human rights.
Today, the Universal Declaration, along
with the two Convenants, make up the International Bill of Rights. The
UN has also developed subsequent Conventions that expand upon, and clearly
define, the nature and scope of specific issues included in the International
Bill of Rights. They are the:
Convention on the Elimination of All
Forms of Racial Discrimination (1965: came into force 1969)
Convention on the Elimination of All
Forms of Discrimination Against Women (1979: in force 1981)
Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984; into force 1987)
Convention on the Rights of the Child
(1989: into force 1990)
Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families (1990: into force
2003)
Convention on the Rights of Persons
with Disabilitities (2006: into force 2008)
Convention for the Protection of All
Persons from Enforced Disappearance (2006: into force 2010)
Among the other human rights
instruments that set non-binding, but generally accepted, norms are:
Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief (1981)
Responsibility to Protect (2005) populations from mass atrocity crimes,
such as genocide, war crimes and ethnic cleansing, when their own country will
not or cannot do so
Declaration on the Rights of Indigenous
Peoples (2007)
04. Significance of Universal Declaration of Human Rights
The UDHR is among
the most important documents of the 20th century. It has been translated into
337 different languages. It has become a touchstone for actions by governments,
individuals, and nongovernmental groups. It has been ratified by every country
in the world. Practically no other international instrument can claim this
honor. In short, the UDHR has acquired a moral and political significance
matched by few documents.
It provides both a
guide to present action and an evolving set of ideas for future implementation
at the national level. Increasingly, the UDHR’s principles have been embodied
in what states do and it serves as the foundation for the International Bill of
Rights and several other crucial human rights agreements. And, not least, the
UDHR has proven a remarkably flexible foundation for a continued broadening and
deepening of the very concept of human rights. How many treaties can claim such
honors?
Several major
treaties, ratified by more than 100 countries, trace their origins to the UDHR.
They include, in chronological order:
·
The International
Convention on the Elimination of Racial Discrimination (1965).
·
The International
Covenant on Economic, Social and Cultural Rights (1966).
·
The International
Covenant on Civil and Political Rights (1966).
·
The Convention on
the Elimination of All Forms of Discrimination against Women (1979).
·
The Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984).
·
The Convention on
the Rights of the Child (1989).
When a country ratifies
an international agreement, it assumes a legal obligation. Citizens of states
signing on to the UDHR and its progeny thus possess rights they may not have
fully enjoyed earlier because their government has acknowledged and pledged to
respect those rights. Signatories to many human rights treaties must prepare
and submit regular reports on their citizens’ freedoms. All these reports go to
U.N. specialists who study them carefully and recommend where changes are
needed.
Citizens groups
increasingly provide their own reports, with additional details. Thus, one of
the hopes of the drafters of the UDHR has been increasingly met: People have a
voice in their own destiny.
Still other
international agreements have stemmed from the UDHR:
·
Prosecution of
indicted war criminals by the International Criminal Court, functioning as of
2002.
·
The
“responsibility to protect,” as approved by the General Assembly in 2005, which
places a moral obligation on countries to help states wracked by widespread
disturbances or civil wars.
·
An August 2006
agreement on a draft convention on the rights of the disabled.
·
Adoption of a
Universal Declaration of Indigenous Rights by the U.N. in September 2007.
·
Reducing or
eliminating the death penalty in much of Europe and elsewhere.
·
Giving more
attention to how transnational corporations affect human rights where they
operate.
These developments
required significant discussion. Nearly 20 years passed between adoption of the
UDHR and the “entry into force” — full acceptance into international law — of
the two international covenants described above. Twenty-five years of
discussion preceded general assembly acceptance of the Universal Declaration of
Indigenous Rights. On the other hand, agreement about establishing the
International Criminal Court came within four years and the convention on
children’s rights in less than a year. The picture is thus mixed.
05. International Covenant on Civil and Political Right and optional Protocols
01. International Covenant on Civil and Political Rights (1966: came into force 1976)
This Covenant is a charter for individual autonomy and
self-determination. It prohibits arbitrary arrest, guarantees humane treatment
if people are detained according to law, and promises fair trials. It prohibits
forced labour or slavery, guarantees freedom to choose where to live, protects
our right to privacy, entitles our right to express opinions, guarantees our
right to peaceful assembly and public participation, protects our right to
preserve our ethnic, religious and linguistic culture, and prohibits incitement
to war or racial or religious hatred.
International Covenant on
Civil and Political Rights
(Adopted and opened for signature and
accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry
into force 23rd March 1976.)
Article 3 The States Parties to the present Covenant undertake to
ensure the equal right of men and women to the enjoyment of all civil and
political rights set forth in the present Covenant.
Article 4 1. In time of public emergency, which threatens the life
of the nation and the existence of which is officially proclaimed, the States
Parties to the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent
with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or
social origin.
2. No derogation from articles 6, 7, 8
(paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant
availing itself of the right of derogation shall immediately inform the other
States Parties to the present Covenant, through the intermediary of the
Secretary General of the United Nations, of the provisions from which it has
derogated and of the reasons by which it was actuated. A further communication
shall be made, through the same intermediary, on the date on which it
terminates such derogations.
Article 6 1. Every human being has the inherent right to life. This
right shall be protected by law. No one shall be arbitrarily deprived of his
life. 2. In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the
law in force at the time of the commission of the crime and not contrary to the
provision of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can be carried out pursuant
to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the
crime of genocide, it is understood that nothing in this Article shall
authorize any State Party to the present Covenant to derogate in any way from
any obligation assumed under the provision of the Convention on the Prevention
of the Punishment Crime of Genocide.
4. Any one sentenced to death shall have the
right to seek pardon or commutation of the sentence. Amnesty, pardon or
commutation of the sentence of death may be granted in all cases.
5. Sentence of the death shall not be imposed
for crimes committed by person below 18 years of age and shall not be carried
out on pregnant woman.
6. Nothing in this Article shall be invoked
to delay or to prevent the abolition of capital punishment by any State Party
to the present Covenant.
Article 7 No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular no one shall be subjected
without his free consent to medical or scientific experimentation.
Article 8 No one shall be held in slavery.
Article 9 1. Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty, except on such grounds and in accordance with
such producer as are established by law
2. Anyone who is arrested shall be informed,
of his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a charge
shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to guarantees to
appear for trial, at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings before a court, in
order that court may decide without delay on the lawfulness of his detention
and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation.
Article 10 1. All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human person.
2. (a) Accused person shall, save in
exceptional circumstances, be segregated from convicted persons and shall be
subject to separate treatment appropriate to their status as unconvicted
persons; (b) Accused juvenile persons shall be separated from adults and
brought as far as possible for adjudication.
3. The penitentiary system shall comprise
treatment of prisoners the essential aim of which shall be their reformation
and social rehabilitation. Juvenile offenders shall be segregated from adults
and be accorded treatment appropriate to their age and legal status.
Article 11 No one shall be imprisoned merely on the ground of
inability to fulfill a contractual obligation.
Article 14 1. All persons shall be equal before the courts and
tribunals. In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair
and public hearing by a competent, independent and impartial tribunal
established by law. The press and the public may be excluded from all part or
part of a trial for reasons of morals, public order (order public) or national
security in a democratic society, or when the interest of the private lives of
the parties so requires, or to the extent strictly necessary in the opinion of
the court in special circumstances where publicity would prejudice the interest
of justice; but any judgment rendered in a criminal case or in a suit at law
shall be made public, except where the interest of juvenile persons otherwise
requires or the proceedings concerns matrimonial disputes or the guardianship
of children.
2. Everyone charged with a criminal charge
shall have the right to be presumed innocent until proved guilty according to
law.
3. In the determination of any criminal
charge against him, everyone shall be entitled to the following minimum
guarantees, in full equality:
(a) To be informed promptly and in detail, in
a language which he understands, of the nature and cause of the charge against
him;
(b) To have adequate time and facilities for
the preparations of his defense and to communicate with counsel of his
choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend
himself in person or through legal assistance of his own choosing; to be
informed, if he does not have legal assistance, of his right; and to have legal
assistance assigned to him, in any case where the interests of justice so
require, and without payment by him in any such case, if he does not have
sufficient means to pay for it;
(e) To examine, or have examined, the witness
against him and to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an
interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against
himself or to confess guilt.
4. In the case of juvenile persons, the
procedure shall be such as will take account of their age and the desirability
of promoting their rehabilitation.
5. Everyone convicted of a crime shall have
the right to his conviction and sentence being reviewed by a higher tribunal
according to law.
6. When a person has by a final decision been
convicted of a criminal offence and when subsequently his conviction has been
reversed or he has been pardoned on the ground that a new or newly discovered
fact shows concussively that there has been a miscarriage of justice, the person
who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished
again for an offence for which he has already been finally convicted or
acquitted in accordance with the law and penal procedure of each country.
Article 15 1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal offence,
under national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable at the time
when the criminal offence was committed. If, subsequent to the commission of
the offence, provision is made by law for the imposition of the lighter
penalty, the offender shall benefit thereby.
2. Nothing in this article shall prejudice
the trial and punishment of any person for any act or omission which, at the time
it was committed, was criminal according to the general principles of law
recognized by the community of nations.
Article 16 Every one shall have the right to recognition everywhere
as a person before the law.
Article17 1. No one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation.
2. Everyone has the right to the protection
of the law against such interference or attacks
The Civil and Political Rights are referred to
as justiciable rights, which are equivalent to the Fundamental Rights of the
Constitution of India. The Economic, Social and Cultural rights are referred to
as Non-Justiciable rights, and are only directives to the states which need to
be promoted and implemented depending upon various factors (these are
comparable to the Directive Principles of State Policy as framed by the
Constitution which are directives to the State. These rights normally, can't be
challenged in a court of law for their non-implementation. However, in the
recent past, at least more than two decades, the Supreme Court of India in no
uncertain terms made it clear through a number of judgments; if the
non-justiciable rights have a substantive bearing on the enjoyment of
fundamental rights, their non-implementation can be challenged).
The Covenant on Civil and Political Rights has
two protocols. The first one was adopted in 1966 and came into force in 1976.
This protocol guarantees to the individual citizens to complain to the UN any
violation of their civil and political rights by their state, after completing
all the formalities and exhausting the remedies including the decision of the
Supreme Court. (This right is guaranteed to the people of those countries,
which ratified the Protocol. Government of India has not yet ratified; the
Indian citizens cannot make any complaint) It has been ratified by 114 fourteen
states till July 2011.
The Second Protocol was adopted in 1989 and
came into force in 1991. It received 73 ratifications by states parties as on
July 2011. This Protocol abolishes death penalty as a deterrent criminal
punishment. Government of India is not a party to this protocol.
Many right specifically mentioned in the Indian
Constitution (called specified Fundamental Right) are also laid down in the
Covenant on Civil and Political Right. Table below shows the Article of
the Indian Constitution and those of the Covenant where similar rights have been
enshrined.
Table
|
Right
|
Indian constitution
|
Covenant on Civil &
Political Rights
|
|
Equality before Law
|
Article14
|
Article14(1)
|
|
Prohibition of
discrimination
|
Article 15
|
Article 26
|
|
Equality of opportunity to
public service
|
Article 16 (1)
|
Article 25 (a)
|
|
Freedom of speech and
expression
|
Article 19 (1) (a)
|
Article 19 (1) &
(2)
|
|
Right for peaceful assembly
|
Article 19 (1) (b)
|
Article 21
|
|
Right to freedom of
association
|
Article 19 (1) (c)
|
Article 22 (1)
|
|
Right to move freely within
the territory of a state
|
Article19 (d) & (e)
|
Article 22 (1)
|
|
Protection in respect of conviction
for offences
|
Article 20 (1)
|
Article15 (1)
|
|
Protection from prosecution
and punishment
|
Article 20 (2)
|
Article14 (7)
|
|
Not to be compelled to
testify against himself
|
Article 20 (3)
|
Article 14 (3) (g)
|
|
Right to life and
liberty
|
Article 21
|
Article 6 (1) & 9 (1)
|
|
Protection against arrest
and detention in certain cases
|
Article22
|
Article 19 (2), (3) &
(4)
|
|
Forced labour
|
Article 23
|
Article 8 (3)
|
|
Freedom of
conscience and religion
|
Article 25
|
Article 18 (1)
|
|
Right to effective
and remedies
|
Article 32
|
Article3
|
The Constitution of India came into force before
the International Covenant on Civil and Political Right. So, Fundamental Rights
were available to Indian citizen much before India ratified the Covenant. With
regard to specified Fundamental Right certain observation that are made are as
follows:
1. Right to life and personal liberty: The right to life (Article21) does not mean mere
animal existence. It means right to live with full human dignity, without
humiliation and deprivation, of denial of any sort. There are various aspect of
right to life and personal liberty. Through its interpretation of Article 21 of
the Constitution, the Supreme Court has included the following main right:
Right to live with human dignity
Right against torture, cruel, inhuman or degrading
treatment or punishment
Right against arbitrary arrest, detention or exile
Right to speed trail
Right to free legal assistance
Right to compensation for wrongful arrest,
detention and torture
Right to reputation
Right to privacy
Right to shelter
Right to clean and wholesome environment
Right to safe and healthy condition of work
Right to health
Right to emergency medical assistant
Right to education till the age of 14
Freedom to go abroad
While making a comparison with right enumerated in
the Covenant on Civil and Political Right, these rights shall be referred as
unspecified fundamental right.
2. Right against self-incrimination: One of the implications of this right (Article20
(3) of the Constitution) is that the accused is offered protection against the
tyranny of the State.
3. Freedom of speech and expression: There are two aspect of the right to freedom of
speech and expression. There are:
Freedom of expression concerning public affairs
Freedom of expression as private right
The Freedom of expression concerning public affairs
is indispensable to the operation of democracy. In Bennet Coleman case, Justice
Mathew observed, “…… the freedom of expression…. is indispensable to the
operation of democratic System. In a democracy the basic premises is governors
and the governed. In order that governed may form intelligent and wise
judgment, it is necessary that they must be apprised of all the aspect of a
question……”
4. Right to assemble peacefully: Democracy loses its meaning if people do not have a
right to assemble. Article 21 of the ICCPR states that there is a close
relationship between freedom of expression and freedom of assembly. However
freedom of peaceful assembly can be restricted if public policy so requires but
the limitations on this freedom must be just and necessary in order with a
democratic society.
5. Freedom of conscience and religion: The Indian Constitution (under Articles 25 and 26)
confers this right subject to some limitation. The right to freedom of religion
finds recognition in Article 18 of the ICCPR and Article 18 of the UDHR, which
provides: ‘Everyone has the right to freedom of thought and religion”.
Unfortunately, some countries, which have ratified the Covenant on Civil
Political Right, do not allow genuine freedom of religion. Pakistan, Iran and
Afghanistan are example. In these countries, Islam is the State religion; and
the citizen does not enjoy genuine freedom to convert to any other religion.
Further, several restriction are imposed on those citizens who do not practice
Islam.
6. Equal access to public services: Article
16(1) of the Indian Constitution lays down that “there shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State”. This Article confers a positive right. Article
16(2) project the negative aspect of the same guarantee. It lays down that no
citizen shall be held ineligible to any office under the State on ground of
religion, race, caste, sex, etc. only.
7. Right to effective remedies: Effective
remedies, by itself, are not a right. But under Article 32, the Indian
Constitution provides this right for enforcement of fundamental right. The
importance of rights enumerated in Article 32 was underlined by Dr. Ambedkar.
He called these rights as the “very soul and heart” of the Constitution. This
Article confers a right on a person to move the Supreme Court directly.
The Covenant on Civil and Political Right is an
international treaty. So it is applicable to States rather than to individual.
Therefore, rights enshrined therein become the obligation of a state only when
they have been incorporated in the State’s internal law. Several judgments of
Indian Court have held this. However, even though several rights are not
specified in Part III of the Constitution as Fundamental Right, they have been
regarded as fundamental by Supreme Court. This has been done by emanation. We
list here those rights which are incorporated in the Covenant on Civil and
Political Right and which are available to the citizens of India, even though
they are not specifically mentioned in the Constitution.
1. Right to privacy: This right is incorporated in the Covenant on
Civil and Political Right (ICCPR) under Article 21. This right covers a number
of other rights. No person shall be subjected to arbitrary interference with
his privacy, family, home or correspondence.
2. Right to travel abroad: The right to travel abroad is laid down under
Article 12(2) of the Covenant. But this right finds no place in part 3 of the Constitution.
However, in Maneka Gandhi v. Union of India, it was held that the expression
“personal liberty” was of the widest possible amplitude. The Court held that no
person can be deprived of his right to go abroad unless there is a law made by
the state prescribing a procedure which cannot be arbitrary, unfair or
unreasonable.
3. Right to speedy trial: Article 9 (3) of the Covenant on Civil and
Political Rights lays down that anyone arrested or detained on a criminal
charge is entitled to trail within a reasonable time or to release. There is no
specific mention of the right to speedy trial in the India Constitution.
However, the Supreme Court has held that this right is covered by Article 21.
4. Right to free legal aid: Article 14(3) of the Covenant provides for the
right to free legal assistance. But Indian Constitution does not provide this
right. However, in M.H. Hoskat v. State of Maharashtra, the Supreme Court held
that free legal aid to poor and deserving is a part of personal liberty under
Article 21. The court went even further in Sukh Das v. Arunachal Pradesh case.
It said that right of a poor person to legal aid exists even if it is not
demanded by him.
5. Right of prisoners to be treated with humanity: Article 10(1) of the Covenant on Civil and
Political Right lays down that all persons deprived of their liberty should be
treated with humanity and with respect for the inherent dignity of the human
person. But in part 3 of the Indian Constitution there is no such provision.
Under Article 21, the Supreme Court has developed a whole charter of dignity.
The court has held that the dignity belongs to all human beings, both inside
and outside the prison.
6. Right not to be imprisoned for inability to
fulfill a contractual obligation: Article 11 of the Covenant on Civil and Political Right lays down that no
one shall be imprisoned merely on the ground of inability to fulfil a
contractual obligation. But in part 3 of the Constitution this right is not
specifically provided.
7. Right to compensation: Article 9(5) of
the Covenant on Civil and Political Right provides for enforceable right to
compensation to the victim of unlawful arrest or detention. But the Indian
Constitution has no such provision. However, the Supreme Court has held that
Compensatory justice comes into play in case of (a) wrongful arrest, detention
and torture and (b) custodial death.
8. Right to Information: Article 19(2) of Covenant on Civil and Political
Right provided for the right to Covenant on Civil and Political Right provides
for the right to seek, receive and impart information. The Indian Constitution
guarantees the freedom of speech and expression as fundamental right under
Article 19(1) (a); but the right to information is not specifically mentioned.
The Right to Information Act was passed in 2005 by the Parliament. It is
proving to be a great weapon against corrupt and inefficient government
officials.
02. Reservation to Right in the Covenant
While acceding to the Covenant on Civil and
Political Right, India has made certain reservation. These reservations, called
“Declaration”, restrict the application of the Covenant in our country. The
following are the declaration with regard to the Covenant on Civil and
Political Right:
1. Right on Self-Determination: Our country cannot allow the right of
self-determination to its people. This is because doing so would result in
secession of parts of the country from the Union of India.
2. Right to freedom: Various rights to freedom have been provided by
Article 19(1) of the Indian Constitution. These right are subject to
restriction laid down in paras (2), (3), (4) and (5) of the same Article.
Similar right has also been recognized in the Covenant; and the Covenant too
lays down restriction in the Covenant are different from those laid down in the
Indian Constitution.
3. Protection against arbitrary arrest and
detention: With regard to this
right, provisions of Article 9 of the Covenant are slightly different from
those laid down by Article 22 of the Indian Constitution. For example, in India,
this right is not available to an enemy alien or to a person arrested or
detained under a preventive detention law. Further, by Article 9(5), the
Covenant provides enforceable right to compensation to person who claims to be
victims of unlawful arrest or detention. But in the Indian Constitution there
is no provision for enforceable compensation. However, as we have stated in
Section 6, Indian courts have held that the suit for compensation against the
State is maintainable in such cases. In view of this, this reservation is
irrelevant.
4. Right of aliens: Article 13 of the Covenant lays down several
safeguard with regard to expelling an alien from the territory of India. Part 3
of the Declaration by India provides that the Government of India reserves its
right to apply its laws relating to foreigners.
03. Emergency Provision in India and in the Covenant
The Covenant on Civil and Political Right provides
certain safeguards when emergency has been declared by a State. In the Indian
Constitution no such safeguard have been explicitly laid down. After the
declaration of Emergency declared in India, the 44th Amendment Act,
1978 has significantly changed the position. This amendment has made the
following main changes: Article 19 would be suspended only in case of war or
external aggression. The right to life and personal liberty would not be
suspended during emergency. Of course, the above changes were made to prevent
the abuse of the fundamental right of people by the executive. But these
changes have also made the provision of the Constitution consistent with the
Covenant.
06. International Covenant on Economic, Social and Cultural Rights, 1966
01. The International Covenant on Economic, Social and Cultural Rights (ICESCR)
ICESCR is a multilateral treaty adopted by the United Nations General Assembly on 16 December
1966, and in force from 3 January 1976. It commits its parties to work toward
the granting of economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust
Territories
and individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living. As of 2015, the
Covenant has 164 parties. A further six countries, including the United States,
have signed but not ratified the Covenant.
The ICESCR is part
of the International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights
(ICCPR), including the latter's first and second Optional
Protocols.
Genesis
The ICESCR has its
roots in the same process that led to the Universal Declaration of Human Rights. A
"Declaration on the Essential Rights of Man" had been proposed at the
1945 San Francisco Conference which led to the
founding of the United Nations, and the Economic and Social Council was given the task
of drafting it. Early on in the process, the document was split into a
declaration setting forth general principles of human rights, and a convention
or covenant containing binding commitments. The former evolved into the UDHR
and was adopted on 10 December 1948.
Drafting continued
on the convention, but there remained significant differences between UN
members on the relative importance of negative civil and
political versus positive economic, social
and cultural rights. These eventually caused the convention to be split into
two separate covenants, "one to contain civil and political rights and the
other to contain economic, social and cultural rights." The two covenants
were to contain as many similar provisions as possible, and be opened for
signature simultaneously. Each would also contain an article on the right of
all peoples to self-determination.
The States Parties
to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust
Territories,
shall promote the realization of the right of self-determination, and shall respect
that right, in conformity with the provisions of the Charter of the United
Nations.
The first document
became the International Covenant on Civil and
Political Rights,
and the second the International Covenant on Economic, Social and Cultural
Rights. The drafts were presented to the UN General Assembly for discussion in
1954, and adopted in 1966.
Summary
The Covenant
follows the structure of the UDHR and the ICCPR, with a preamble and thirty-one
articles, divided into five parts.
Part 1 (Article 1)
recognises the right of all peoples to self-determination, including the
right to "freely determine their political status" pursue their
economic, social and cultural goals, and manage and dispose of their own
resources. It recognises a negative right of a people not to
be deprived of its means of subsistence, and imposes an obligation on those
parties still responsible for non-self governing and trust territories
(colonies) to encourage and respect their self-determination.
Part 2 (Articles 2–5)
establishes the principle of "progressive realisation" – see below.
It also requires the rights be recognised "without discrimination of any
kind as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status". The
rights can only be limited by law, in a manner compatible with the nature of
the rights, and only for the purpose of "promoting the general welfare in
a democratic society".
Part 3 (Articles 6–15)
lists the rights themselves. These include rights to
·
work, under "just and favourable
conditions", with the right to form and join trade unions (Articles 6, 7,
and 8);
·
an adequate standard of living, including
adequate food, clothing
and housing, and the
"continuous improvement of living conditions" (Article 11);
·
health, specifically "the highest
attainable standard of physical and mental health" (Article 12);
·
education, including free universal primary
education, generally available secondary education and equally accessible
higher education. This should be directed to "the full development of the
human personality and the sense of its dignity", and enable all persons to
participate effectively in society (Articles 13 and 14);
·
participation in cultural life (Article 15).
Many of these
rights include specific actions which must be undertaken to realise them.
Part 4 (Articles 16–25)
governs reporting and monitoring of the Covenant and the steps taken by the
parties to implement it. It also allows the monitoring body – originally the United Nations Economic and Social Council – now the
Committee on Economic, Social and Cultural Rights – see below – to make general
recommendations to the UN General Assembly on appropriate
measures to realise the rights (Article 21)
Part 5 (Articles 26–31)
governs ratification, entry into force, and amendment of the Covenant.
02. Principle of progressive realisation
Article 2 of the Covenant
imposes a duty on all parties to
take steps... to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures.
This is known as
the principle of "progressive realisation". It acknowledges that some
of the rights (for example, the right to health) may be difficult in practice
to achieve in a short period of time, and that states may be subject to
resource constraints, but requires them to act as best they can within their
means.
The principle
differs from that of the ICCPR, which obliges parties to "respect and to
ensure to all individuals within its territory and subject to its
jurisdiction" the rights in that Convention. However, it does not render
the Covenant meaningless. The requirement to "take steps" imposes a
continuing obligation to work towards the realisation of the rights. It also
rules out deliberately regressive measures which impede that goal. The Committee
on Economic, Social and Cultural Rights also interprets the principle as
imposing minimum core obligations to provide, at the least, minimum essential
levels of each of the rights. If resources are highly constrained, this should
include the use of targeted programmes aimed at the vulnerable.
The Committee on
Economic, Social and Cultural Rights regards legislation as an indispensable
means for realising the rights which is unlikely to be limited by resource
constraints. The enacting of anti-discrimination provisions and the
establishment of enforceable rights with judicial remedies within national
legal systems are considered to be appropriate means. Some provisions, such as
anti-discrimination laws, are already required under other human rights instruments,
such as the ICCPR.
03. Labour rights
Article 6 of the Covenant
recognises the right to work, defined as the
opportunity of everyone to gain their living by freely chosen or accepted work.
Parties are required to take "appropriate steps" to safeguard this
right, including technical and vocational training and economic policies aimed
at steady economic development and ultimately full employment. The right implies
parties must guarantee equal access to employment and protect workers from
being unfairly deprived of employment. They must prevent discrimination
in the workplace
and ensure access for the disadvantaged. The fact that work must be freely
chosen or accepted means parties must prohibit forced or child labor.
The work referred
to in Article 6 must be decent work. This is
effectively defined by Article 7 of the Covenant, which recognises
the right of everyone to "just and favourable" working conditions.
These are in turn defined as fair wages with equal
pay for equal work,
sufficient to provide a decent living for workers and their dependants; safe working conditions; equal opportunity in the
workplace; and sufficient rest and leisure, including limited working hours and regular, paid holidays.
Article 8 recognises the
right of workers to form or join trade unions and protects the right to strike. It allows these
rights to be restricted for members of the armed forces, police, or government
administrators. Several parties have placed reservations on this clause,
allowing it to be interpreted in a manner consistent with their constitutions
(e.g., China, Mexico), or extending the
restriction of union rights to groups such as firefighters (e.g., Japan).
04. Right to social security
Article 9 of the Covenant
recognizes "the right of everyone to social security, including social insurance". It requires
parties to provide some form of social insurance scheme to protect people
against the risks of sickness, disability, maternity, employment injury,
unemployment or old age; to provide for survivors, orphans, and those who
cannot afford health care; and to ensure that families are adequately
supported. Benefits from such a scheme must be adequate, accessible to all, and
provided without discrimination. The Covenant does not restrict the form of the
scheme, and both contributory and non-contributory schemes are permissible (as
are community-based and mutual schemes).
The Committee on
Economic, Social and Cultural Rights has noted persistent problems with the
implementation of this right, with very low levels of access.
Several parties,
including France and Monaco, have reservations allowing them to set residence
requirements in order to qualify for social benefits. The Committee on
Economic, Social and Cultural Rights permits such restrictions, provided they
are proportionate and reasonable.
05. Right to family life
Article 10 of the Covenant
recognises the family as "the natural and fundamental group unit of
society", and requires parties to accord it "the widest possible
protection and assistance". Parties must ensure that their citizens are
free to establish families and that marriages are freely contracted and not forced. Parties must also
provide paid leave or adequate social
security to mothers before and after childbirth, an obligation which overlaps
with that of Article 9. Finally, parties must take "special measures"
to protect children from economic or social exploitation, including setting a
minimum age of employment and barring children from dangerous and harmful
occupations.
06. Right to an adequate standard of living
Article 11 recognises the right of everyone to an adequate standard of living. This includes,
but is not limited to, the right to adequate food, clothing, housing, and
"the continuous improvement of living conditions". It also creates an
obligation on parties to work together to eliminate world hunger.
The right to
adequate food, also referred to as the right to food, is interpreted as
requiring "the availability of food in a quantity and quality sufficient
to satisfy the dietary needs of individuals, free from adverse substances, and
acceptable within a given culture". This must be accessible to all,
implying an obligation to provide special programmes for the vulnerable. This
must also ensure an equitable distribution of world food supplies in relation to
need, taking into account the problems of food-importing and food-exporting
countries. The right to adequate food also implies a right to water.
The right to adequate
housing, also referred to as the right to housing, is "the
right to live somewhere in security, peace and dignity". It requires
"adequate privacy, adequate space, adequate security, adequate lighting
and ventilation, adequate basic infrastructure and adequate location with
regard to work and basic facilities – all at a reasonable cost". Parties
must ensure security of tenure and that access is free of discrimination, and
progressively work to eliminate homelessness. Forced evictions, defined as
"the permanent or temporary removal against their will of individuals,
families and/or communities from the homes and/or land which they occupy,
without the provision of, and access to, appropriate forms of legal or other
protection", are a prima facie violation of the Covenant.
The right to
adequate clothing, also referred to as the right to clothing, has not been
authoritatively defined and has received little in the way of academic
commentary or international discussion. What is considered "adequate"
has only been discussed in specific contexts, such as refugees, the disabled,
the elderly, or workers.
07. Right to health
Article 12 of the Covenant
recognises the right of everyone to "the enjoyment of the highest
attainable standard of physical and mental health". "Health" is
understood not just as a right to be healthy, but as a right to control one's
own health and body (including reproduction), and be free from interference
such as torture or medical
experimentation. States must protect
this right by ensuring that everyone within their jurisdiction has access to
the underlying determinants of health, such as clean water, sanitation, food,
nutrition and housing, and through a comprehensive system of healthcare, which
is available to everyone without discrimination, and economically accessible to
all.
Article 12.2 requires parties
to take specific steps to improve the health of their citizens, including
reducing infant mortality and improving child health, improving environmental
and workplace health, preventing, controlling and treating epidemic diseases,
and creating conditions to ensure equal and timely access to medical services
for all. These are considered to be "illustrative, non-exhaustive
examples", rather than a complete statement of parties' obligations.
The right to health
is interpreted as requiring parties to respect women's' reproductive rights, by not limiting
access to contraception or
"censoring, withholding or intentionally misrepresenting" information
about sexual health. They must also ensure that women are protected from
harmful traditional practices such as female
genital mutilation.
Right to health is
inclusive right extending not only to timely and appropriate health care but
also to the underlying determinants of health, such as access to safe and
potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions.
Article 13 of the Covenant
recognises the right of everyone to free education (free for the primary level and
"the progressive introduction of free education" for the secondary and higher levels). This is to be directed
towards "the full development of the human personality and the sense of
its dignity", and enable all persons to participate effectively in
society. Education is seen both as a human right and as "an indispensable
means of realizing other human rights", and so this is one of the longest
and most important articles of the Covenant.
Article 13.2 lists a number of
specific steps parties are required to pursue to realise the right of
education. These include the provision of free, universal and
compulsory
primary education, "generally available and accessible" secondary
education in various forms (including technical and vocational training), and
equally accessible higher education. All of these must be available to all
without discrimination. Parties must also develop a school system (though it
may be public, private, or mixed), encourage or provide scholarships for
disadvantaged groups. Parties are required to make education free at all
levels, either immediately or progressively; "[p]rimary education shall be
compulsory and available free to all"; secondary education "shall be
made generally available and accessible to all by every appropriate means, and
in particular by the progressive introduction of free education"; and
"[h]igher education shall be made equally accessible to all, on the basis
of capacity, by every appropriate means, and in particular by the progressive
introduction of free education".
Articles 13.3 and
13.4
require parties to respect the educational freedom of parents by allowing them
to choose and establish private educational institutions for their children,
also referred to as freedom of education. It also
recognises the right of parents to "ensure the religious and moral
education of their children in conformity with their own convictions".
This is interpreted as requiring public schools to respect the freedom of
religion and conscience of their students, and as forbidding instruction in a
particular religion or belief system unless non-discriminatory exemptions and
alternatives are available.
The Committee on
Economic, Social and Cultural Rights interpret the Covenant as also requiring
states to respect the academic freedom of staff and
students, as this is vital for the educational process. It also considers corporal punishment in schools to be
inconsistent with the Covenant's underlying principle of the dignity of the
individual.
Article 14 of the Covenant
requires those parties which have not yet established a system of free compulsory primary education,
to rapidly adopt a detailed plan of action for its introduction "within a
reasonable number of years".
Article 15 of the Covenant
recognises the right of everyone to participate in cultural life, enjoy the
benefits of scientific progress, and to benefit from the protection of the
moral and material rights to any scientific discovery or artistic work they
have created. The latter clause is sometimes seen as requiring the protection
of intellectual property, but the Committee on Economic, Social and Cultural
Rights interprets it as primarily protecting the moral
rights
of authors and "proclaim[ing] the intrinsically personal character of
every creation of the human mind and the ensuing durable link between creators
and their creations". It thus requires parties to respect the right of
authors to be recognised as the creator of a work. The material rights are
interpreted as being part of the right to an adequate standard of living, and
"need not extend over the entire lifespan of an author."
Parties must also
work to promote the conservation, development and diffusion of science and
culture, "respect the freedom indispensable for scientific research and
creative activity", and encourage international contacts and cooperation
in these fields.
Reservations
A number of parties
have made reservations and interpretative
declarations to their application of the Covenant.
Algeria interprets parts
of Article 13, protecting the liberty of parents to freely choose or establish
suitable educational institutions, so as not to "impair its right freely
to organize its educational system."
Bangladesh interprets the
self-determination clause in Article 1 as applying in the historical context of
colonialism. It also reserves
the right to interpret the labour rights in Articles 7 and 8 and the
non-discrimination clauses of Articles 2 and 3 within the context of its
constitution and domestic law.
Belgium interprets
non-discrimination as to national origin as "not necessarily implying an
obligation on States automatically to guarantee to foreigners the same rights
as to their nationals. The term should be understood to refer to the
elimination of any arbitrary behaviour but not of differences in treatment
based on objective and reasonable considerations, in conformity with the
principles prevailing in democratic societies."
China restricts labour
rights in Article 8 in a manner consistent with its constitution and domestic
law.
Egypt accepts the
Covenant only to the extent it does not conflict with Islamic Sharia law. Sharia is
"a primary source of legislation" under Article 2 of both the suspended
1973 Constitution and the 2011 Provisional Constitutional Declaration.
France views the Covenant
as subservient to the UN Charter. It also reserves
the right to govern the access of aliens to employment, social security, and
other benefits.
India interprets the
right of self-determination as applying "only to the peoples under foreign
domination" and not to apply to peoples within sovereign nation-states. It
also interprets the limitation of rights clause and the rights of equal
opportunity in the workplace within the context of its constitution.
Indonesia interprets the
self-determination clause (Article 1) within the context of other international
law and as not applying to peoples within a sovereign nation-state.
Japan reserved the right
not to be bound to progressively introduce free secondary and higher education,
the right to strike for public servant and the
remuneration on public holidays.
Kuwait interprets the
non-discrimination clauses of Articles 2 and 3 within its constitution and
laws, and reserves the right to social security to apply only to Kuwaitis. It
also reserves the right to forbid strikes.
Mexico restricts the
labour rights in Article 8 within the context of its constitution and laws.
Monaco interprets the
principle of non-discrimination on the grounds of national origin as "not
necessarily implying an automatic obligation on the part of States to guarantee
foreigners the same rights as their nationals",and reserves the right to
set residence requirements on the rights to work, health, education, and social
security.
New Zealand reserved the right
not to apply Article 8 (the right to form and join trade unions) insofar as
existing measures (which at the time included compulsory unionism and
encouraged arbitration of disputes) were incompatible with it.
Norway reserves the right
to strike so as to allow for compulsory arbitration of some labour disputes.
Pakistan has a general
reservation to interpret the Covenant within the framework of its constitution.
Thailand interprets the
right to self-determination within the framework of other international law.
Trinidad and Tobago reserves the right
to restrict the right to strike of those engaged in essential occupations.
Turkey will implement the
Covenant subject to the UN Charter. It also reserves the right to interpret and
implement the right of parents to choose and establish educational institutions
in a manner compatible with its constitution.
United Kingdom views the Covenant
as subservient to the UN Charter. It made several reservations regarding its
overseas territories.
United States – Amnesty
International
writes that "The United States signed the Covenant in 1979 under the
Carter administration but is not fully bound by it until it is ratified. For
political reasons, the Carter administration did not push for the necessary
review of the Covenant by the Senate, which must give its 'advice and consent'
before the US can ratify a treaty. The Reagan and George H.W. Bush
administrations took the view that economic, social, and cultural rights were
not really rights but merely desirable social goals and therefore should not be
the object of binding treaties. The Clinton Administration did not deny the
nature of these rights but did not find it politically expedient to engage in a
battle with Congress over the Covenant. The George W. Bush administration
followed in line with the view of the previous Bush administration." The
Obama Administration stated "The Administration does not seek action at
this time" on the Covenant. The Heritage Foundation, a critical
conservative think tank, argues that signing it would obligate the introduction
of policies that it opposes such as universal health
care.
08. Optional Protocol
The Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights is a
side-agreement to the Covenant which allows its parties to recognise the
competence of the Committee on Economic Social and Cultural Rights to consider
complaints from individuals.
The Optional
Protocol was adopted by the UN General Assembly on 10 December 2008. It was
opened for signature on 24 September 2009, and as of February 2013 has been
signed by 40 parties and ratified by 10. Having passed the threshold of
required ratifications it has entered into force on 5 May 2013.
09. Committee on Economic, Social and Cultural Rights
The Committee on
Economic, Social and Cultural Rights is a body of human rights experts
tasked with monitoring the implementation of the Covenant. It consists of 18
independent human rights experts, elected for four-year terms, with half the
members elected every two years.
Unlike other human
rights monitoring bodies, the Committee was not established by the treaty it
oversees. Rather, it was established by the Economic and Social Council
following the failure of two previous monitoring bodies.
All states parties
are required to submit regular reports to the Committee outlining the
legislative, judicial, policy and other measures they have taken to implement
the rights affirmed in the Covenant. The first report is due within two years
of ratifying the Covenant; thereafter reports are due every five years. The
Committee examines each report and addresses its concerns and recommendations
to the State party in the form of "concluding observations".
07. Right to Development
The relationship between the processes
of economic development and international human rights standards has been one
of parallel and rarely intersecting tracks of international action. In the last
decade of the 20th century, development thinking shifted from a growth-oriented
model to the concept of human development as a process of enhancing human
capabilities, and the intrinsic links between development and human rights
began to be more readily acknowledged. Specifically, it has been proposed that
if strategies of development and policies to implement human rights are united,
they reinforce one another in processes of synergy and improvement of the human
condition. Such is the premise of the Declaration on the Right to Development,
adopted by the UN General Assembly in 1986.
No comments:
Post a Comment