International Human Rights Law: Classification, Evolution, Protection
By: Pradeep yadav
On: 5 June, 2019
On: 5 June, 2019
Human rights are the fundamental rights which are essential for life as a human being. These are the birthrights, so they are given to each and every human being irrespective of his nationality. All human rights are derived from the dignity of humans.
Evolution of Human Rights
Initially, it used to be believed in the 19th Century that Human rights are the matters which are the concerns of the state and of the subjects. The Magna Carta granted by King John of England to protect rights of the lords in 1215. The theme of those rights was protection against arbitrary acts by the King. The Bill of Rights included all English men which acted as the superiority of the Parliament over the crown.
The declaration of Independence of the USA (Virginia Declaration) 1776 affirmed that all men are by nature equal. The Constitution of the USA (1787) gave various Human rights. The French Declaration of rights, 1789 gave various rights to men like liberty, property, security and resistance to oppression.
The declaration of the United Nations signed on January 1, 1942, at Washington was the first document which used the term Human rights.
The declaration of Independence of the USA (Virginia Declaration) 1776 affirmed that all men are by nature equal. The Constitution of the USA (1787) gave various Human rights. The French Declaration of rights, 1789 gave various rights to men like liberty, property, security and resistance to oppression.
The declaration of the United Nations signed on January 1, 1942, at Washington was the first document which used the term Human rights.
Theories of Human Rights
1. Natural law theory: Ancient thinkers use to believe that Human rights are derived from the Divine law or moral law. Natural rights derive from Natural law. They maintain that Human rights are inherent in Human beings. The critics of Natural law theory believe that it is unscientific.
2. Legal right theory: Rights are the creation of a state. They are fundamental rights of the individual. Positivists are the people who support this theory. It is the state who creates and enforces them.
2. Legal right theory: Rights are the creation of a state. They are fundamental rights of the individual. Positivists are the people who support this theory. It is the state who creates and enforces them.
3. Historical Theory of Right: They believe that the custom crystallizes in a right through the historical process. But in reality, rights don’t only come from customs as it will prove to be detrimental for the social reforms. Many customs are often stopped by the law only.
4. Social Utility theory: Under this theory, those rights are considered as genuine human rights which tend to increase the total happiness of human beings.
4. Social Utility theory: Under this theory, those rights are considered as genuine human rights which tend to increase the total happiness of human beings.
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Classification of Human rights
French Jurist Karel Vasak, after being inspired by the French Revolution classified Human rights into 3 categories:
1. Civil and Political rights: These rights are often named as the 1st Generation rights. These rights have found a place in the constitution of all the major countries in the world. They are also called as the negative rights as the governments are required to abstain from doing those activities that would violate them.
2. Economic, social and cultural rights: These rights are the 2nd Generation Human rights. The Socialist states believe that civil and political rights got no meaning without the Economic independence of the people of a state. These rights had their origin from the Russian Revolution of 1917.
1. Civil and Political rights: These rights are often named as the 1st Generation rights. These rights have found a place in the constitution of all the major countries in the world. They are also called as the negative rights as the governments are required to abstain from doing those activities that would violate them.
2. Economic, social and cultural rights: These rights are the 2nd Generation Human rights. The Socialist states believe that civil and political rights got no meaning without the Economic independence of the people of a state. These rights had their origin from the Russian Revolution of 1917.
3. Collective Rights: These are the 3rd Generation rights. These are the latest rights which are supported by the developing countries. These are to be enjoyed collectively by the people of the state. These rights include the right to Development, Right of Self Determination, Right to safe environment etc.
Protection from Slavery is one of the Fundamental Human rights under Article 8 of ICCPR, 1966
Protection of Human rights under the United Nations
The UN Charter was signed in 1945, which brought the Human rights in the international limelight. It was followed by United Declaration of Human rights, 1948
1. The United Nations Charter
The preamble of the UN puts faith in fundamental human rights, in the equal rights of men and women. Article 1 of the UN charter lays down the principle of maintaining international peace. Article 13 (1) (b) talks about the purpose of realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
1. The United Nations Charter
The preamble of the UN puts faith in fundamental human rights, in the equal rights of men and women. Article 1 of the UN charter lays down the principle of maintaining international peace. Article 13 (1) (b) talks about the purpose of realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.
2. Universal Declaration of Human rights (UDHR), 1948
The expansion of the UN Charter came in the form of UDHR which was adopted at Geneva by the General Assembly on 10th December 1948. It explained the various intricacies of Human rights. Human rights day is celebrated all over the world on December 10 to commemorate the adoption of UDHR. It is not just a mere resolution of the General Assembly but a Constitution of the Charter. The UDHR consists of 30 Articles. Article 1 of the Declaration provides that, “All human beings are born free and equal in dignity and rights. Article 2 gives the rights and freedom to everyone irrespective of colour, sex, race, language etc.
There are various rights given under Articles of UDHR like Right to life, liberty, Freedom from Slavery, Prohibition against torture, Right to seek Asylum, Right to nationality etc.
There are various rights given under Articles of UDHR like Right to life, liberty, Freedom from Slavery, Prohibition against torture, Right to seek Asylum, Right to nationality etc.
3. International Covenant on Civil and Political Rights (ICCPR), 1966
The Preamble of this Covenant talks about creating the conditions where everyone can enjoy his civil and political rights as well as economic, social and cultural rights. It comprises of 53 articles in 6 parts. Some of the important articles of this covenant are as follows:
• Article 6: Right to life
• Article 7: Prohibition of torture or cruel, inhuman treatment
• Article 8: Prohibition of slavery
• Article 9: Right to liberty
• Article 16: Right to be recognized as a person before the law
• Article 19: Right to freedom of opinion and expression
• Article 27: Right to ethnic, religious or linguistic minorities
• Article 6: Right to life
• Article 7: Prohibition of torture or cruel, inhuman treatment
• Article 8: Prohibition of slavery
• Article 9: Right to liberty
• Article 16: Right to be recognized as a person before the law
• Article 19: Right to freedom of opinion and expression
• Article 27: Right to ethnic, religious or linguistic minorities
4. International Covenant on Economic Social and Cultural Rights (ICESCR), 1966
The two covenants (ICCPR & ICESCR) are adopted by the General Assembly in 1966 and came into force in 1976 are having legal force as treaties. The ICESCR comprises of 31 Articles:
• Article 6: Right to work freely chosen
• Article 7: Right to just and favourable conditions of work
• Article 8: Right to form and join trade unions
• Article 9: Right to social security and social insurance
• Article 12: Right to physical/mental health
• Article 13: Right to Education
• Article 6: Right to work freely chosen
• Article 7: Right to just and favourable conditions of work
• Article 8: Right to form and join trade unions
• Article 9: Right to social security and social insurance
• Article 12: Right to physical/mental health
• Article 13: Right to Education
5. International Bill of Human Rights (1976)
It is an informal name given to the three international treaties and Conventions established by the United Nations. It consists of UDHR (1948), ICCPR (1966) & ICESCR (1966). It has become a backbone of the Human rights Jurisprudence.
6. Covenants on Vulnerable groups
There are vulnerable groups like Women, Children, Disabled persons, minorities etc. These groups need support and protection. Some of the covenants representing these groups are as follows:
• The Convention on the elimination of all forms of Discrimination against Women (1981)
• The convention on the rights of a child (1989)
• The international convention on the elimination of all forms of racial discrimination (1981)
• The Convention on the elimination of all forms of Discrimination against Women (1981)
• The convention on the rights of a child (1989)
• The international convention on the elimination of all forms of racial discrimination (1981)
Human rights protect all the major rights of Children.
7. The World Conference on Human rights (The Vienna Declaration and Programme of Action)
This declaration emphasized the importance of Economic, social and cultural rights. It recommended increased coordination for human rights. It also kept its focus on human rights education, training and public information.
Implementation and Monitoring of Human Rights at the International Level
The protection of Human rights at the international level is difficult because of the following reasons:
• ICJ is open to states only; individuals got no access to it.
• Jurisdiction of ICJ depends on the consent of the states.
• There is no international police to implement the judgments of the IC J
• States believe that the enforcement of human rights by international organizations is an interventionist act.
• ICJ is open to states only; individuals got no access to it.
• Jurisdiction of ICJ depends on the consent of the states.
• There is no international police to implement the judgments of the IC J
• States believe that the enforcement of human rights by international organizations is an interventionist act.
International bodies to deal with the violation of Human rights
There are many Human rights bodies which are monitoring the cases of violations of Human rights.
1. Conventional Mechanism: There are 8 core human rights treaties.
• Human Rights Committee (HRC) by the International Covenant on Civil and Political Rights (ICCPR)
• Committee on Economic, Social and Cultural Rights (CESCR) by ICESCR.
• Committee on the Elimination of Discrimination against Torture (CEDAW).
• Committee against Torture (CAT).
• Committee on the Rights of the Child (CRC).
• Committee on Racial Discrimination (CRD).
• Committee on the Rights of Migrant Workers and Members of their Families (CMW).
• Committee on the Rights of Persons with Disabilities.
2. Extra Conventional Mechanism: In addition to treaties there is the United Nations Commission on Human Rights and its various sub-commissions. The experts of these committees send a report to the commission, which asks the Governments to comment on the reports and the present situation. The annual report of these groups is published every year.
1. Conventional Mechanism: There are 8 core human rights treaties.
• Human Rights Committee (HRC) by the International Covenant on Civil and Political Rights (ICCPR)
• Committee on Economic, Social and Cultural Rights (CESCR) by ICESCR.
• Committee on the Elimination of Discrimination against Torture (CEDAW).
• Committee against Torture (CAT).
• Committee on the Rights of the Child (CRC).
• Committee on Racial Discrimination (CRD).
• Committee on the Rights of Migrant Workers and Members of their Families (CMW).
• Committee on the Rights of Persons with Disabilities.
2. Extra Conventional Mechanism: In addition to treaties there is the United Nations Commission on Human Rights and its various sub-commissions. The experts of these committees send a report to the commission, which asks the Governments to comment on the reports and the present situation. The annual report of these groups is published every year.
Human Rights Committee
Under the ICCPR, the Human rights Committee is formed. It consists of 18 members. It seeks a report from various nations on the condition of Human rights every year. Secretary-General of ICCPR transmits the report to HRC. The HRC shall study the report and forward it with comments to state parties. The main function of HRC is to give a friendly solution to the matter of Human rights. The main difference between the HRC and UN Human Rights Commission is that the later is open to all the members of the UN, while in case of Committee, the obligation to submit a report is limited to the members of the ICCPR only.
The violation of Human rights of Individual member cases can also be approached to the HRC. An individual who claims to be a victim of violation can make such communication. Anonymous complaints are inadmissible under HRC.
The violation of Human rights of Individual member cases can also be approached to the HRC. An individual who claims to be a victim of violation can make such communication. Anonymous complaints are inadmissible under HRC.
Human Rights Council
Various leaders of the world adopted a document named a World Summit Outcome. This created a UN Human Rights Council which is responsible for the protection of Human rights and Fundamental freedom of all. It consists of 47 members who are elected by secret ballot. The membership of a member can be suspended if a state commits gross violations of Human Rights.
Following are the functions of the council:
• It promotes human rights education.
• It is a forum of dialogue on human rights violation.
• It promotes the implementation of the Human rights obligations of states.
• It takes universal periodic review
• It submits an annual report to the General Assembly
Following are the functions of the council:
• It promotes human rights education.
• It is a forum of dialogue on human rights violation.
• It promotes the implementation of the Human rights obligations of states.
• It takes universal periodic review
• It submits an annual report to the General Assembly
European Convention on Human Rights
The European Convention on Human rights was signed in Rome in November 1950 and came into force in 1953. The European Convention on Human rights incorporates civil and political rights. The greatest achievement of ECHR is giving the individual the right to bring cases directly to it, even against its own government.
Rights and Freedoms under ECHR:
• Article 2: Right to life and liberty
• Article 3: Freedom from torture or inhuman treatment
• Article 4: Freedom from Slavery
• Article 6: Right to a fair hearing
• Article 7: Non-retroactive application of criminal law
• Article 10: Right to freedom of expression
• Article 2, Protocol 1: Right to Education
Rights and Freedoms under ECHR:
• Article 2: Right to life and liberty
• Article 3: Freedom from torture or inhuman treatment
• Article 4: Freedom from Slavery
• Article 6: Right to a fair hearing
• Article 7: Non-retroactive application of criminal law
• Article 10: Right to freedom of expression
• Article 2, Protocol 1: Right to Education
Implementation and Protection of Human rights in India
The Indian Constitution gives various Fundamental rights contained in Part 3 of the Constitution. The UDHR contained civil and political as well as economic, social and cultural rights. While Civil and political rights have been incorporated in part 3 of the Indian Constitution, economic, social and cultural rights have been incorporated in part 4 of the Constitution.
Some of the Fundamental rights (civil and political rights) which are incorporated are as follows:
• Article 21: Right to life, liberty and security
• Article 23: Prohibition of slavery
• Article 14: Right to equality before the law
• Article 11(2): Right against ex post facto laws
• Article 18: Right to freedom of thought, conscience and religion
Some of the Economic, Social and Cultural Rights are as follows:
• Article 23(1): Right to work
• Article 23(2): Right to equal pay for equal work
• Article 23(3): Right to just and favourable remuneration
• Article 24: Right to rest and leisure
• Article 28: Right to proper social order
Some of the Legislative measures to protect Human rights are as follows:
1. Protection of Civil rights Act, 1955
2. Child Laws:
• Child labour (Prohibition and Regulation Act), 1986;
• Juvenile Justice (Care and Protection of Children) Act, 2000;
• Prohibition of Child Marriage Act, 2006;
• Young persons (Harmful publications) Act, 1956;
3. Women Laws:
• The Immoral Traffic (Prevention) Act, 1956;
• The Dowry Prohibition Act, 1961;
• The Maternity Benefit Act, 1961;
• National Commission for Women Act, 1990;
Some of the Fundamental rights (civil and political rights) which are incorporated are as follows:
• Article 21: Right to life, liberty and security
• Article 23: Prohibition of slavery
• Article 14: Right to equality before the law
• Article 11(2): Right against ex post facto laws
• Article 18: Right to freedom of thought, conscience and religion
Some of the Economic, Social and Cultural Rights are as follows:
• Article 23(1): Right to work
• Article 23(2): Right to equal pay for equal work
• Article 23(3): Right to just and favourable remuneration
• Article 24: Right to rest and leisure
• Article 28: Right to proper social order
Some of the Legislative measures to protect Human rights are as follows:
1. Protection of Civil rights Act, 1955
2. Child Laws:
• Child labour (Prohibition and Regulation Act), 1986;
• Juvenile Justice (Care and Protection of Children) Act, 2000;
• Prohibition of Child Marriage Act, 2006;
• Young persons (Harmful publications) Act, 1956;
3. Women Laws:
• The Immoral Traffic (Prevention) Act, 1956;
• The Dowry Prohibition Act, 1961;
• The Maternity Benefit Act, 1961;
• National Commission for Women Act, 1990;
Protection of Human Rights Act, 1993
In India, the Protection of Human rights act was passed to protect the human rights of Indians. Under this Act, there are a constitution of the National Human Rights Commission, States Human Rights Commission and Human Rights courts. India ratified the ICCPR and ICESCR covenants but they are not directly enforceable in India. They are only enforceable as much as the rights given under the Fundamental Right of the Indian Constitution.
National Human Rights Commission (NHRC)
It is set up under the Protection of Human Rights Act. It consists of a chairperson (Retired Chief Justice of India), one retired Judge of Supreme court, one chief justice of high court and two members having knowledge of Human rights.
Powers and Functions of NHRC (Section 12)
• It promotes Human rights
• It shall inquire suo moto or on a petition presented to it by the victim.
• It may intervene in any proceeding involving violation of Human Rights.
• It shall study treaties and various international treaties on Human rights.
• It shall submit an annual report to the Central/State government.
Powers and Functions of NHRC (Section 12)
• It promotes Human rights
• It shall inquire suo moto or on a petition presented to it by the victim.
• It may intervene in any proceeding involving violation of Human Rights.
• It shall study treaties and various international treaties on Human rights.
• It shall submit an annual report to the Central/State government.
State Human Rights Commissions (SHRC)
It is set up under chapter 5 of the protection of Human rights Act. Its chairperson is the retired chief justice of High court, one member who has been the retired Judge of the high court, one retired District Judge with minimum 7 years of experience and one knowledgeable person of Human rights. It has been established in 17 states so far.
Human rights Education
There is a need to develop a culture of human rights. This can be done by a variety of means:
• Free Education about Human rights
• Organize courses, seminars on violations of Human rights.
• Strengthen human rights training and awareness.
• In-service training of the police officers
• Encourage the private sector to promote Human rights by the media
• Increase the use of new information and internet knowledge of Human rights.
The struggle for Human rights is continuing from past many decades. All efforts should be taken to protect the human rights of everyone.
• Free Education about Human rights
• Organize courses, seminars on violations of Human rights.
• Strengthen human rights training and awareness.
• In-service training of the police officers
• Encourage the private sector to promote Human rights by the media
• Increase the use of new information and internet knowledge of Human rights.
The struggle for Human rights is continuing from past many decades. All efforts should be taken to protect the human rights of everyone.
