Human rights are such rights which are in general presumed to be inherent in our nature and without which one fails to survive as a human being in one’s surroundings. These are the rights to which a person is entitled by virtue of one’s human existence as humans hold these rights universally & equally. The lens of human rights is being adopted as an attempt to decide & determine human dignity and its worth along with carving a niche for a human rights’ culture in our society. These rights stand on mankind’s relentless pursuit of demanding a life instilled with inherent dignity, respect & protection.
Human rights have time & again enabled us to develop completely & use our human qualities, such as conscience, intelligence to satisfy our spiritual and other needs. Emmanuel Kant an eminent jurist and philosopher has attributed human beings with an intrinsic value which one fails to find in inanimate objects and as such violation of human rights would conclude a failure in acknowledging the worth of human life. The meaning of human rights has been widening day by day with each word adding a different perspective and a more humane touch to it. We find human rights intertwined with our laws, codes, customs & religion in an intricate manner and as such we find ourselves able to live a life of dignity and able to exercise our Human Rights apart from other rights.
What Rights constitutes Human Rights?
Human Rights include a bunch of laws which are inherent to every human being on this earth owing to him/her being a human. These rights entail civil and political rights such as:
- The right of freedom of expression
- The right to privacy
- The right to vote
- The right of assembly as per one’s freedom, etc
Human rights apart from civil & political rights encompass certain economic & social rights as well which include:
- The right to education
- The right to an adequate standard of living, etc
What are International Human Rights treaties and when are they binding upon a nation?
To understand International Human Rights Treaties one must be well versed with the term ‘treaty’ and the dynamics governing such treaties.
Treaty
Starke defines a Treaty as an agreement between two or more states whereby they seek to establish a relationship among themselves governed under the pall of International Law. [1] Hence we understand that, when two or more States or International Organisations enter an agreement in order to establish a relation amongst themselves, such an agreement is called a ‘treaty’. We know treaty by various names such as – conventions, accord, covenant, alliance etc. Treaties are of profound importance in the whole gamut of International Law. Article 38 which originally belonged to Permanent Court of International Justice (PCIJ), 1920 and was re-enacted into the 1946 statute of International Court of Justice (ICJ) in Clause -1 emanates the importance of treaties by claiming the treaties to be the primary source of International law. [2]
Treaties have times and again ensured to be medium to remove hostility among the nations and promote peaceful & friendly relations among the states. They can be sponsored by States or International Organisations. We have witnessed a significant change in the concept of treaties. From being oral and concluded by swearing an oath on God as a medium for binding such treaty to a written and legal approach ensued to bind the same, we have witnessed certain notable transitions in the history the treaties. [3]
When does a treaty become binding on a State?
Since the treaties and the contents included within are of paramount importance to the Sovereign state, it has become somewhat necessary that the process is surrounded by proper steps which are in compliance with certain formal requirements and reducing the agreement into a formal document. The initial steps include; Accrediting of representatives (Where is the state conducting such negotiations appoint a representative for this purpose) followed by Negotiations (between these representatives pertaining to the matters concerning the treaty in question). These are later followed by the important steps of signing & ratification.
Signing: Once the delegates representing the states involved in such treaty have concluded the negotiations, reached an agreement & final draft is prepared, it is followed by affixing the signature at a formal closing session. By signing the treaty, intention to comply with its norms and rules is implied by the signatory state. Although it is pertinent to mention that this expression of intent is not binding in itself.
Ratification: By ratifying a treaty, the State confirms its willingness to conform with the obligations imposed by a treaty. So long as a treaty is not ratified by a competent authority within the constitution following the states internal procedure, it is deemed to be bereft of a formal sanction. Post ratification, the treaty is formally binding on the state
Types & kinds of treaties
Treaties depend on the number of parties involved in a treaty, treaties are of two types:
- Bi-lateral Treaties: Bi-lateral treaties are the treaties which are signed between two entities ; be it between two states, two International Organisations or a State and an International Organisation. However a bi lateral treaty may arise between more than two parties as well, such as seen in the bilateral treaties among Switzerland & European Union. In which the treaty even if signed between 17 parties is a bi lateral treaty in which the member states are divided into two parts viz; the Swiss & the EU as
- Multilateral Treaties: Treaties between three or more States or International Organisations is a multilateral Treaty. These treaties can be domestic as well as International.
Treaties are of different kinds as well depending upon the subject matter of the treaties. Eminent of these include:
Contractual treaties
Parties to the treaties in order to benefit are mutually dependent on each other for a particular treatment and where the parties possess rights & obligations towards each other are called Contractual Treaties. These most commonly include, treaties with a few number of parties such as bilateral treaties. Contractual treaties enable what in simpler words we used to call as ‘barter system’ by focus on subject matters such as conveyance or exchange of goods which one party to the treaty may lack and others possess and furnish the same in exchange of something else.
Law Making Treaties
As compared to Contractual Treaties, the subject matter of law making treaties is more of a statutory nature that stands for a common cause grounded in fulfilment of objectives. The emergence of international legal order brought with itself a need to bring certain rules which possessed statutory force to overcome the old existing rules which governed voluntary legal relation between States. These treaties come with independent obligations meaning thereby that these obligations have a binding force and must be followed by the parties to this treaty. Examples of such treaties include Human Rights Treaties, Maritime regime treaties among others.
International Human Rights Treaties
These are the treaties or international agreements which encompass codification of Human Rights. The International Human Rights Treaties are commonly called as conventions or covenants. It is these treaties which dispense an agreed collection of human rights standards and institute a modus operandi to guide the path for implementation of the treaty. Every State which ratifies the International Human Rights treaties agrees to legally obligate the provisions of treaty. Some of the core International Human Rights Treaties are as:
- Universal Declaration of Human Rights – 1948
- International convention on elimination of all forms of racial discrimination -1965
- International Covenant on Civil and Political rights – 1966
- International Covenant on Economic, Social & Cultural rights – 1966
- Convention on the Elimination of All Forms of Discrimination against Women – 1979
International bill of Human Rights
The United Nations General Assembly Resolution 217 (III) (which put forward The United Nations Declaration of Human Rights) along with two international treaties of International Covenant on Civil and Political Rights (ICCPR, 1966) and the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) collectively are called as International Bill of Human Rights. These are also accompanied by the two optional protocols attached with the ICCPR. This Bill over the course of time has been able to influence the actions and decisions of the Government pertaining to State, Non -State, social, economic & cultural rights. It also ensures that these rights are focused on the most while forming and implementing the policies & laws of national & international level. [6]
Moving forward with the influence of International Bill of Human Rights (specifically UDHR & ICCPR) on India, its constitution and policies towards its subjects following is the synopsis of underpinnings of the Bill and its influence in shaping India.
Universal Declaration of Human Rights
One of the most important documents and a milestone in terms of world peace building initiative has been the Universal Declaration of Human Rights (UDHR). Composed of 30 articles, it was on 10 december, 1948 that the Declaration was adopted for the first time in the UN General Assembly at Palais de Chaillot in Paris, France. [4] The Declarations were adopted as a response to the horrific events surrounding World War II and gross violation of human rights during this era. Acting as a compass for the road towards freedom, equality and respect of basic rights, the Universal Declaration of Human Rights became one of the first instances of agreement among different countries (of diverse socio-economic backgrounds) for recognising the need for universal protection of certain rights.
The core themes of UDHR is to strive towards dignity & justice or all, pulverisation of poverty & promotion of overall development, removal of gender based inequalities, protection of culture, environment among others. [5] The 30 Articles forming the Declaration are categorised into following 4 categories:
- General Article (Art 1 & 2)
- Civil & Political Rights ( Art 3 to 21)
- Socio – economic & cultural Rights (Art 22 to 28)
- Concluding Provisions (Art 29 & 30)
Being ratified by 179 states, these articles represent fundamental freedoms and basic human rights. The Universal Declaration of Human Rights has ensured with time the humans their right to live life with dignity, to enjoy social security and basic fundamental rights.
Influence on India
Indian Constitution
UDHR in its preamble speaks for human rights as a mutual achievement for all people and nations. Although a declaration does not formally bind a State, however, it acts as a guiding map for different States for building a close to ideal society. Its Articles pose an immense influence on constitutions of multitude of nations and India is one of them. With utmost care taken to innumerable occurrences happening around the world & significance of the Articles of UDHR, the Indian Constituent Assembly on December 26, 1949 adopted the world’s longest written constitution. Part III and Part IV of the Indian Constitution which respectively represent the ‘fundamental rights’ and the ‘Directive Principles of State Policy’ adhere a close semblance to the rich content of UDHR. In Fact such has been the impact of UDHR that most of the Constituent debates revolving around Part III & Part IV of the Constitution took place after December 10, 1948. Some of the instances of Indian Constitution where it is clearly evident that the founders of Indian constitution gave due recognition to the UDHR and its provisions are as:
Equality before Law: Both Article 7 of the Universal Declaration of Human Rights and Article 14 of the Indian Constitution strive for equality before law & equal protection of law.
Prohibition of discrimination: Article 15 (1) of the Indian Constitution shows influence of Article 7 of the Universal Declaration of Human Rights in forbidding discrimination among its subjects on different grounds.
Equal opportunity: Another occurrence of influence of UDHR on Indian Constitution is evident through Article 16. Article 16(1) of the Indian Constitution and Article 21(2) of Universal Declaration of Human Rights speak for equal opportunity to the citizens of a nation in various matters.
Freedom of peaceful assembly: Article 21 (1) of UDHR and Article 19(1)(b) of the Indian constitution promote freedom of the subjects of the country to assemble peacefully without any arms.
Right to form unions or associations: Article 19 (1) (c) of the Indian constitution is one more example where the provisions of UDHR {Article 23 (4)} are moulded to strike a common goal which here enables workers and other people with a right to form unions or associations.
Freedom of movement within the border: Article 13 (1) of the Universal Declaration of Human Rights provides that every person has the right to move completely freely within his country. So does Article 19 (1) (d) of the Indian Constitution.
Protection of life and personal liberty: Article 9 of the Universal Declaration of Human Rights against arbitrary arrest or detention without good reason. Proclaiming in a similar fashion article 21 of the Indian Constitution provides for protection of life and personal liberty except according to due procedure established by law.
Innocent until proven guilty: Article 11(2) of the UDHR strives for protection of an accused person upon conviction for any offence and Article 20(1) of the Indian Constitution provides similar rights to its subjects.
Protection against slavery and servitude: Article 23 of the Indian constitution and article 4 of the Universal Declaration of Human Rights resemble in their resolve against slavery & forced labour.
Freedom of religion and conscience: Article 18 & Article 25 (1) of the UDHR and Indian constitution show semblance in their resolve to maintain freedom among subjects to practice and have their own religion and conscience.
Enforcement of rights: Influenced by article 8 of the Universal Declaration of Human Rights the Constituent Assembly of India inserted article 32 into the Indian constitution which provides and protects the freedom of an individual to enforce his rights.
Right to work: Article 23 (1) of the UDHR and Article 41 of the Indian constitution resemble in their determination to secure right to work.
Right to Education: both article 26 of the UDHR and article 21-A of the Indian Constitution provide for securing the right for education.
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Indian Judiciary
Indian Judiciary has time and again increased the scope of personal liberty of the subjects of India by referring to UDHR. Some of the stark instances of influences of UDHR on Indian Judiciary are:
- Kesavananda Bharati vs State of Kerala [7]: in this case, the Supreme Court observed that “the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of Human Rights at the time the Constitution was adopted.” Thereby indicating the influence of the United Universal Declaration of Human Rights on the constitutional interpretation in India.
- Chairman, Railway Board and others v Mrs. Chandrima Das [8] : it was observed by the Supreme Court that an international recognition is possessed by the Declaration in the form of “Moral Code of Conduct ” since adopted by the UNGA.
The Covenant and the Indian
After ratifying both the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) on March 27, 1979, India has established upon itself a responsibility on the international platform to oblige to the encompassed articles.
ICCPR
On 16 December, 1966, the United Nations adopted a multilateral treaty under the title of the International Covenant on Civil and Political Rights (ICCPR) which came into force on 23 March, 1976.
The Covenant was adopted so as to show a sense of regards & respect to the civil & political rights including right to freedom of speech, freedom to assemble peacefully, freedom of expression and similar rights of people. The Covenant currently has 173 parties along with 6 signatories awaiting to ratify.
Created with the intent to bind the ratifying countries with a legal liability, the ICCPR was the Great Wall in the arena of Human Rights enforcement. The ICCPR speaks for establishment of a Human Rights Committee (under Article 28) comprising a total of eighteen members.
India & the ICCPR
India ratified the ICCPR on 9 July 1993. The National Human Rights Commission (NHRC) is the regulatory body within India for protection of human rights. Since the covenant enables all the ratifying parties to put forward some declarations, India has not shied away from this opportunity by contributing certain declarations. A set of rights present in part III of the Indian Constitution which provides a plethora of rights inherent to all humans is titled ‘Fundamental Rights’. The scope of the fundamental rights has been increasing with each passing day and with each passing significant change in the society. This is done so as to stay consistent with the commitments made towards the ICCPR. A further leap of commitment was shown by India by obliging with the principles of the ICCPR with establishing the National Human Rights Commission on 12 october 1993. The said commission was provided with wide range powers and jurisdiction. The commission is empowered to take suo moto cognizance of the issues of human rights violation and other allied violations and can forward the courts with recommendations pertaining to allied human rights cases.
Influence on Indian Constitution
On a keen look, at the Covenants and the Indian constitution, the latter seems to be influenced to a great extent from the former with a considerable number of fundamental rights enumerated in the Indian Constitution being present in the Covenant also. Some of the such instances are as:
Action against Forced labour : Art 8(3) of the ICCPR expressly prohibits slavery and every form of trade of slaves and obeying the Covenant, Article 23 of the Indian Constitution forbids traffiking of humans, beggers and other forms of forced labour.
Promotion of Equality before law : Art 14 of the Indian constitution lays the onus on the state to ensure its subjects are treated with equal and uniform law throughout its territory along with equal protection of law and concurrently, Article 14 (1) of the ICCPR speaks for equality before the courts of law and fair hearing along with Article 26 which speaks for equality of all persons before law barring any discrimination to the equal protection of law.
Prohibition of discrimination : Article 26 of the ICCPR is another instance where the Covenant speaks not only in favour ‘equality before the law’ but also speaks against any form of discrimination be it against be it on race, colour, sex, religion or other ground. Same attitude has been adopted by the Indian Constitution in Article 15 (1) where the Constitution prohibits the State from discrimination against any citizen.
Equal opportunity : Article 25 ( c ) of the ICCPR bars distinctions to be created while accessing public service in a country and likewise, Article 16 (1) of the Indian Constitution calls for equal opportunity in matters relating to employment or appointment.
Right to life and liberty : Indian Constitution and The ICCPR concurrently make efforts towards ensuring that no person is bereft of his life or personal liberty in Article 21 of Indian constitution and Article 9 (1) 6(1) of the ICCPR
Right of freedom of association : Article 22 of the Covenant finds itself parallel to Article 19 (1) ( c ) of the Indian Constitution in enabling the citizens with freedom of association (without ‘arms’ in the latter).
Influence on Indian Judiciary In Secretary General, Supreme Court vs Subhash Chandra Agarwal [9]
It was held that the ICCPR embodies ‘procedural Guarantees in Civil & Criminal Trials’ and so does Article 14 which talks about equality of law. Thereby to determine a criminal charge against a person or his rights and obligations in a lawsuit, everyone shall be entitled to a public and fair hearing held by an independent, impartial & a competent tribunal which is established by law. This cardinal procedure is derived from earlier statements of universal principles.
Conclusion
The two world wars of 1928 and 1945 have left indelible marks on the world particularly when it comes to grave violations of human rights. It was the strenuous efforts of the countries to comprehend a world of peace which led to the establishment of a number of international organisations such as the United Nations which strided forward in its struggle in reconciling the differences among hostile countries & provide a future to look far. Treat and be treated with dignity is the very essence of the human race. Human Rights form an inherent right possessed by every person in the world. The Universal Declaration of Human Rights (1948) became a rich semblance of human & other rights adopted by democracies throughout the world. The ICCPR & ICESCR made it legally binding on countries to move towards the betterment of human life by imbibing a set of rules.
While India has ratified these declarations & covenants, followed their idea and theme of creation of a more humane society, it is lately being accused of human rights violations and anti minority approach.
REFERNCES
[1] Starke an introduction to International Law. 4th Ed., p280.
[2] Article 38 of the Statute of the International Court of Justice: A Complete Reference Point for the Sources of International Law? (Published 5 april 2019) by Israr Khan.
[3 Concept of Treaties in International Law, available at;
https://www.google.com/amp/s/blog.ipleaders.in/concept-treaties-international-law/amp/ (last visited on December 14, 2020)
[4] History of the document, available at; https://www.un.org/en/sections/universal-declaration/history-document/index.html (last visited on December 14, 2020)
[5] Universal Declaration of Human Rights – In six cross-cutting themes, available at; https://www.ohchr.org/en/udhr/pages/crosscuttingthemes.aspx (last visited December 14, 2020)
[6] International Bill of Human Rights, available at; https://www.escr-net.org/resources/international-bill-human-rights (last visited December 14,2020)
[7] AIR 1973 SC 1461
[8] AIR 2000 SC 988
[9] LPA No.501/2009 https://indiankanoon.org/doc/1342199/ (last visited on December 20, 2020)
BY SYED ROVEAL MURTAZA | UNIVERSITY OF KASHMIR