DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

Transcription

1 DEVELOPMENT OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS Dr.V.Ramaraj * Introduction International human rights instruments are treaties and other international documents relevant to international human rights law and the protection of human rights in general. They can be classified into two categories: declarations, adopted by bodies such as the United Nations General Assembly, which are not legally binding although they may be politically so as soft law; and conventions, which are legally binding instruments concluded under international law. International treaties and even declarations can, over time, obtain the status of customary international law. A great number of international declarations, resolutions and recommendations relating to human rights have been adopted under the auspices of the United Nations which have established broadly recognized standards in connection with human rights issues despite the fact that they are not legally binding on the States. It is time to analysis the evolution of international instruments on human rights, which will be helpful for further development. Universal Declaration The Universal Declaration of Human Rights (UDHR) was adopted in the General Assembly of United Nation on 10 th December The date is well known. It has subsequently proclaimed as the Human Rights Day of the United Nations i. It was a remarkable achievement in many respects. The articles of UDHR as follows: Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-selfgoverning or under any other limitation of sovereignty. Article 3: Everyone has the right to life, liberty and security of person. Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. * The author is an eminent advocate Page 149

2 Article 6: Everyone has the right to recognition everywhere as a person before the law. Article 7: All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9: No one shall be subjected to arbitrary arrest, detention or 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 any 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 interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13: (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. 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 from acts contrary to the purposes and principles of the United Nations. Article 15: (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16: (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17: (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20: (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. Article 21: (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and Page 150

3 resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23: (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24: Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25: (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26: (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27: (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. Article 28: Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29: (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein ii. International Covenants International Covenant on Civil and Political Rights (ICCPR) is adopted and opened for signature, ratification and accession by General Assembly on 16 December 1966, entry into force 23 March It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of April 2014, the Covenant has 74 signatories and 168 parties. The Covenant follows with a preamble and fifty-three articles, divided into six parts. Page 151

4 Part 1 (Article 1) recognizes 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) obliges parties to legislate where necessary to give effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights. It also requires the rights be recognised "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," and to ensure that they are enjoyed equally by women. The rights can only be limited "in time of public emergency which threatens the life of the nation," and even then no derogation is permitted from the rights to life, freedom from torture and slavery, the freedom from retrospective law, the right to personhood, and freedom of thought, conscience and religion. Part 3 (Articles 6 27) lists the rights themselves. These include rights to physical integrity, in the form of the right to life and freedom from torture and slavery (Articles 6, 7, and 8); liberty and security of the person, in the form o freedom from arbitrary arrest and detention and the right to habeas corpus (Articles 9 11); procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Articles 14, 15, and 16); individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Articles 12, 13, 17 24); prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Article 20); political participation, including the right to the right to vote (Article 25); Non-discrimination, minority rights and equality before the law (Articles 26 and 27). Many of these rights include specific actions which must be undertaken to realise them. Part 4 (Articles 28 45) governs the establishment and operation of the Human Rights Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise the competence of the Committee to resolve disputes between parties on the implementation of the Covenant (Articles 41 and 42). Part 5 (Articles 46 47) clarifies that the Covenant shall not be interpreted as interfering with the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources". Part 6 (Articles 48 53) governs ratification, entry into force, and amendment of the Covenant. International Covenant on Economic, Social and Cultural Rights is adopted and opened for signature, ratification and accession by General Assembly resolution on 16 December 1966 entry into force 3 January 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 Covenant follows 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. Page 152

5 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); social security, including social insurance (Article 9); family life, including paid parental leave and the protection of children (Article 10); 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. Universal Human Rights Instruments In addition to the International Bill of Rights and the core human rights treaties, there are many other universal instruments relating to human rights. The legal status of these instruments varies: declarations, principles, guidelines, standard rules and recommendations have no binding legal effect, but such instruments have an undeniable moral force and provide practical guidance to States in their conduct; covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them. iii The Instruments Concerning Specific Issues iv as follows; Prevention of discrimination 1. International Convention on the Elimination of All Forms of Racial Discrimination (1966), entered into force on 4 January International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), entered into force on 18 July ILO Convention (No. 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value (1951), entered into force on 23 May UNESCO Convention against Discrimination in Education (1960), entered into force on 22 May UNESCO Protocol Instituting a Conciliation and Good Offices Commission to be responsible for seeking the settlement of any disputes which may arise between States Parties to the Convention against Discrimination in Education (1962), entered into force on 24 October Page 153

6 6. ILO Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (1958), entered into force on 15 June ILO Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (1958), entered into force on 15 June ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (1981), International labour conventions and recommendations , entered into force on 11 August International Convention against Apartheid in Sports (1985), entered into force on 3 April ILO Revised Convention (No. 169) concerning Indigenous and Tribal People in Independent Countries (1989), entered into force on 5 September 1991 Crimes against humanity 11. Convention on the Prevention and Punishment of the Crime of Genocide (1948), entered into force on 12 January Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (1968), entered into force on 11 November Rome Statute of the International Criminal Court (1998), entered into force on 1 July International Convention for the Suppression of Terrorist Bombings (1997), entered into force on 23 May International Convention for the Suppression of the Financing of Terrorism (1999), entered into force on 10 April International Convention for the Suppression of Acts of Nuclear Terrorism (2005), entered into force on 7 July Torture 17. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), entered into force on 26 June Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2002), entered into force on 22 June International Convention for the Protection of All Persons from Enforced Disappearance (2006), not entered into force as at 31 May Slavery, traffic in persons, forced labour: 20. Protocol amending the Slavery Convention signed at Geneva on 25 September 1926 (1953), entered into force on 7 December Page 154

7 21. Slavery Convention signed at Geneva on 25 September 1926 and amended by the Protocol done at the Headquarters of the United Nations, New York, on 7 December 1953, entered into force on 7 July Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956), entered into force on 30 April Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1950), entered into force on 25 July ILO Convention (No. 29) concerning Forced Labour (1930), entered into force on 1 May ILO Convention (No. 105) concerning the Abolition of Forced Labour (1957), entered into force on 17 January Freedom of information and expression: 26. Convention on the International Right of Correction (1953), entered into force on 24 August Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005), UNESCO, entered into force on 18 March 2007 Aliens, refugees, stateless persons: 28. Convention relating to the Status of Refugees (1951), entered into force on 22 April Protocol relating to the Status of Refugees (1967), entered into force on 4 October Convention relating to the Status of Stateless Persons (1954), entered into force on 6 June Convention on the Reduction of Statelessness (1961), entered into force on 13 December Workers 32. ILO Convention (No. 11) concerning the Rights of Association and Combination of Agricultural Workers (1921), entered into force on 11 May ILO Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize (1948), entered into force on 4 July ILO Convention (No. 98) concerning the Application of the Principles of the Right to Organize and Bargain Collectively (1949), entered into force on 18 July ILO Convention (No. 122) concerning Employment Policy (1964), entered into force on 15 July ILO Convention (No. 135) concerning Protection and Facilities to be afforded to Worker s Representatives in the Undertaking (1971), entered into force on 30 June ILO Convention (No. 141) concerning Organizations of Rural Workers and their Role in Economic and Social Development (1975), entered into force on 24 November ILO Convention (No. 151) concerning Protection of the Right to Organize and Procedures for Determining Conditions of Employment in the Public Service (1978), entered into force on 25 February International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families (1990), entered into force on 1 July Page 155

8 Women 40. Convention on the Political Rights of Women (1953), entered into force on 7 July Convention on the Nationality of Married Women (1957), entered into force on 11 August Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962), entered into force on 9 December Convention on the Elimination of All Forms of Discrimination against Women (1979), entered into force on 3 September Optional Protocol to the Convention on the Elimination of Discrimination against Women (1999), entered into force on 22 December Children 45. Convention on the Rights of the Child (1989), entered into force on 2 September Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2000), entered into force on 12 February Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (2000), entered into force on 18 January ILO Convention (No. 138) concerning Minimum Age for Admission to Employment (1973), entered into force on 19 June ILO Convention (No. 182) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (1999), entered into force on 19 November Persons with disabilities 50. Convention on the Rights of Persons with Disabilities, (2006), entered into force on 3 May Optional Protocol to the Convention on the Rights of Persons with Disabilities, (2006), entered into force on 3 May Combatants, prisoners and civilians: 52. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), entered into force on 21 October Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), entered into force on 21 October Geneva Convention relative to the Treatment of Prisoners of War (1949), entered into force on 21 October Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), entered into force on 21 October Page 156

9 54. Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977), entered into force on 7 December Additional Protocol to the Geneva Conventions of 12 August 1949 relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977), entered into force on 7 December The United Nations has taken great efforts to promote and protect the human rights by way of international instruments. It is time to codify the same. A review on international human rights instruments is essential by way of convening a special conference on human rights. Conclusion This study makes an attempt to study the international human rights law. The United Nations has taken effective initiations on the International Human Right Law. In order to strengthen human rights it is essential to concentrate on the following measures. i. The study identified that United Nation's work on human rights is remarkable. But, it has to review the same and has to work more to strengthen the human rights. ii. United Nations has to codify the International Human Rights Law. The International Law Commission has to work for it. iii. The United Nations has to convene a special conference for the codification of International Human Rights Law. The governments, civil societies, the private sectors and other non-governmental organizations has to support the UN to strengthen the concept of codification of International Human Right Law. ************** i Guðmundur S. Alfreðsson, Asbjørn Eide (Ed.,), The Universal Declaration of Human Rights: A Common Standard of Achievement, Martinus Nijhoff Publishers, London, p xxxiii. ii iii iv Major International Instruments, UNESCO, Paris, 2010, p Page 157