January 23, 2022

Documents relating to Protection of Human Rights: UDHR, ICCPR and ICESCR

Human Rights

Introduction

Every rational and reasonable individual understands the importance of law in society. And with the increasing inequality and injustice over the years, protecting human rights became essential. Thomas Hobbes was among the first who published a book in 1651 “Leviathan” in which he focused on power-sharing between the king and the natural rights of the individual. Hobbes quite rightly believed that humans have liberty and have natural rights which should be recognized and respected. He also distinguished between Law and Right. According to Hobbes, law is an obligation which every individual need to comply with and rights, on the other hand, means absences of obligation or privileges that every individual should enjoy.

 Similarly, John Locke advocated for the natural liberty and equality. According to him, every man is born free and has rights and privileges. They have the right to protect their life and liberty. He also believed that every individual has the right to protect his property from any injury by the other members of the society.

 It was after the 2nd world war enforcing Human Rights globally became the need of the hour. Rights like freedom of speech and expression, freedom of every person to worship God in his own way, freedom from want and freedom of fear, was included as human rights and enforcing these rights became essential to safeguard every individual from barbarous act like wars, slave trade, discrimination, ill-treatment, etc. Traces of Human Rights can be found, in the Universal Declaration of Human Rights and subsequent treaties. Human Rights include security rights, equality rights, minority rights, social rights, etc.

Universal Declaration of Human Rights (UDHR)

In 1946 UN Commission on Human Rights was constituted to form an International Bill of Rights, this was done with aim to enforce Human Rights globally and give Human Rights a global recognition. The drafting committee consisted of eight countries and Eleanor Roosevelt headed the committee. The International bill consisted of Universal Declaration of Human Rights (UDHR), ICCPR and ICESCR.  The Universal Declaration of Human Rights came into force on 10 December, 1948. It consists of 30 Articles in which, it covers civil, political, social and economic rights. Some of the rights mentioned under UDHR were also adopted as “Fundamental rights” in the Indian Constitution, which included rights like equality before law, prohibition of discrimination, right to life and liberty, freedom of movement, etc. The Supreme Court in Keshwananda Bharti V State of Kerala observed that “The universal Declaration may not be legally binding instrument but India being a signatory member has understood the nature and the importance of human rights at the time Constitution was formed”[1].

UDHR is considered to be the most important document as it consist all the essential rights and 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.[2] It provides rights which can be implemented both in present and in the future. The Declaration is a yardstick by which to measure the degree of respect for, and compliance with, international human rights standards everywhere on earth[3].

UDHR has helped to form other treaties like:

  • 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).

Important Rights mentioned Universal Declaration of Human Rights (UDHR)

1) Right to Equality– is considered the most important right as it helps to create a balanced society, a society where every individual is treated equally and it also enlarges the scope of unity among its members. There are different articles under UDHR which deals with equality, for example Article 1 of the UDHR provides that all the human beings are born free and are equal in dignity and rights, Article 7 deals with equality before law and equal protection against any discrimination, Article 10 provides that every individual have equal opportunity for a fair and free public hearing by an independent and impartial tribunal[4].

2) Right to Freedom– Article 13(1), Article 19, Article 20(1), and Article 23(4) of the UDHR protects rights like freedom of movement, freedom of speech and expression, freedom of peaceful assembly, freedom to form association and union, respectively. In Union Of India vs. Association For Democratic Reforms And Another, the Supreme Court held that “article 19 of universal declaration of human rights, 1948 (UDHR) recognizes right to receive information, “everyone has 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 area and regardless of frontiers.” There is no gainsaying that without participation of citizens, democracy is ineffective. To enable citizens to actively participate in governance information should be made available”.[5]

3) Right to life and liberty– UDHR states that every individual have the right to life and liberty. These rights are provided since the very birth of an individual and these rights are inalienable.

4) Protection from Slavery or Slave trade– slavery and slave trade was a major issue. The Universal of Abolition of the Slave Trade in 1815 was the first to voice this issue and since then 300 agreements were formulated to abolish slavery. In the 19th century both England and USA had already passed legislation to outlaw slave trade. In UDHR Article 4 clearly specifies “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”[6]. Also Article 5 of UDHR protects from ill treatment, torture or cruelty or kind of punishment.

5) Freedom of Conscience and Religion– religion is considered one of the most sensitive topics, and UDHR quite rightly has recognized that every individual has the freedom to practice any religion of their own choice, Article 18 states that “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”[7].

6) Remedy for enforcement of right– Article 8 of UDHR seeks that every individual has the right to get an effective remedy by the competent tribunal. In Uppalapati Nirupa Rani Another vs. Koganti Lakshmi, and Others, 2010 the Andhra Pradesh High Court held that, “Article 8 of UDHR and Articles 3(a), 3(c) of ICCPR, Articles 14 and 21 of Constitution read with Section 154 CrPC make it clear that, if a cognizable offence is not registered and investigated, it would result in violation of human rights”[8].

 UDHR also had to face its own share of criticism. As UDHR has no legal recognition, enforcement of these rights became questionable. Michael Ignatieff said that “The West now masks its own will to power in the impartial, universalizing language of human rights and seeks to impose its own narrow agenda on a plethora of world cultures that do not actually share the West’s conception of individuality, selfhood, agency, or freedom”[9] Country like Saudi Arabia abstained from the vote on the declaration, arguing that Articles 16 and 18 (the rights for men and women to marry who they choose, and the right to freedom of religion) were in opposition to Islamic faith and teachings which emphasis patriarchal authority.[10] UDHR does try to maintain peace and equality in the society but we can’t deny that the society consists of different individual with different mindsets, so sometimes it becomes difficult to be on the same page.

International Covenant on Civil and Political Rights (ICCPR)

International Covenant on Civil and Political Rights came into force on March 23, 1976. Till 2019 it had 173 signatory countries. This covenant consists of 53 Articles and is divided into 6 parts. ICCPR protects rights like the right to life, liberty, fair trial, freedom of speech and expression, etc.

The purpose of forming ICCPR was to recognize the inherent dignity of each individual and undertake to promote conditions within states to allow the enjoyment of civil and political rights. The main intention behind forming ICCPR was to strengthen the legal bases of Human Rights. The fact that UDHR is not legally enforceable, and ICCPR on the other hand, is legally enforceable; the signatory countries that have ratified this covenant and now under the obligation to abide by the Articles mentioned under ICCPR and any violation of these right are considered, as punishable offences. Any report, if made by an individual or by an organization regarding of violation of any human rights made by their state, shall be investigated. Article 28 of ICCPR states that there should be a Human Rights Committee which shall perform different functions, like making reports, enforcing the rights, etc. Article 40 and 41 of ICCPR indicates how the reports are to be formed and to whom it should be submitted, and what are the things that should be mentioned in the report.

ICCPR and Indian Constitution

  • Article 1– provides that the states that the right to self-determination is universal and calls upon States to promote the realization of that right and to respect it.
  • Article 2– each state party must respect and ensure that the rights provided under this covenant is enforced and the rights are provided to each and every individual of the state irrespective of their race, gender, caste, sex, language, religion, political or other opinions. The article further provides that every individual whose rights are violated should be provided with a suitable remedy.
  • Article 6, 7 and 8 –protecting the individual against any death penalty, in India the death penalty still prevails. In Bachchan Singh v. the State of Punjab, the Supreme Court observed that the provisions for the capital punishment under section 302 IPC are not violative of Article 21 of the Indian Constitution, though Article 72 of the Indian Constitution gives the President the power to grant a pardon, remit or commute a sentence of any person convicted of any offence under this law. Article 7 prohibits human degrading punishment, cruel treatment, and Article 8 protects every individual against the slave trade or forced labor.
  • Article 9– protects the individual against arbitrary arrest or detention.
  • Article 10– states that no matter whether the person has committed the crime or not he should be treated with respect and dignity. In Charles Shobraj v. Superintendent, Central Jail, Tihar, New Delhi, AIR 1978, the apex court recognized that the ‘right to life’ is more than mere animal existence or vegetable substance. Even in prison, a person is required to be treated with dignity and one enjoys all the rights specified in Article 19 and 21. Article 10 also provides that the state should also set up juvenile prisons.
  • Article 11- protects the individual against breach of contract, in Jolly George Verghese v. Bank of Cochin, AIR 1980[11], it was held by the Supreme Court that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is a violation of Article 21 of the Constitution.
  • Article 12- provides freedom of movement and freedom to reside anywhere in the state and the right to travel to different countries. The Supreme Court in Satwant Singh v. Assistant Passport Officer, New Delhi, AIR 1967, SC 1836, held that the right to go abroad is a part of the ‘personal liberty’ within the meaning of Article 21 of the Constitution, and consequently, no person can be deprived of this right except according to procedure deprived of this right except according to the procedure established by law. Again, in Maneka Gandhi v. Union of India, AIR 1978, 597, the Supreme Court upheld the decision of Satwant Singh’s case, 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 the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure[12].
  • Article 14- ensure that every individual is equal before the law. And every individual has the right to a fair trial, conducted by an independent and impartial tribunal. The article also provides that the press or public may be excluded during the trial for maintaining morals, public order and security. Article 20 of the Indian Constitution strongly supports the idea of fair trial, so that every individual gets the opportunity to be heard.
  • Article 18 and 19- establishes freedom of religion. Article 19 of ICCPR provides freedom of speech and expression. In Secretary Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, 1995, the Supreme Court held that right to impart and receive information is a species of the right to freedom of speech and expression.
  • Article 21 and 22 – states that every individual has the right of peaceful assembly and shouldn’t be restricted to enforce their rights until and unless it is in conformity with the law and doesn’t disturb the public order and security of the society. Similarly, Article 22 states that every person has the right to form an association and join trade union, again it should be in conformity with law and shouldn’t violate the rights of others.

 There are different rights mentioned under ICCPR which are similar to the rights provided in the Indian Constitution, and they are:

i) Equality of Opportunity to public service- Article 25(c)

ii) Right to move freely within the territory of a state- Article 22(1)

iii) Protection in respect of conviction of offences- Article 15(1)

 iv) Protection from prosecution and punishment- Article 14(7)

v) Not to be compelled to testify against himself- Article 14(3) (g)

International Covenant on Economic, Social and Cultural Rights (ICESCR)

On 3rd March 1976, ICESCR came into force, and as of 2019 it has 173 signatory countries. It consists of 31 Articles which are divided in 5 parts. ICESCR majorly deals with rights like, right to education, right to an adequate standard of living, right to health, labour rights, etc.

ICESCR aims secure the social, economical and cultural rights of an Individual. There are certain rights under ICESCR which are similar to the Indian Constitution, and they are:

i) Equal pay for equal work- Article 7(a) (i),

ii) Safe & humane condition of work- Article 7(b),

iii) Maternity relief- Article 10(2),

iv) Right to work- Article 6(1),

v) Opportunities to children- Article 10(3),

vi) Compulsory education to children- Article 13(2) (a), and so on.

Optional Protocols to ICCPR and ICESCR

Optional protocols to ICCPR- There are 2 optional protocols to the International Covenant on civil and Political Rights. The first Optional Protocol was enforced on 23 March 1976 by May 2020 it had 35 signatories and 116 states parties. The aim of forming this protocol was to act as a complaint mechanism which would record and address the complaint of individual whose rights under the Covenant has been violated. Committees were set up to address the issues and provide suitable solution within 6 months to the relevant parties. The second protocol to the ICCPR focuses on abolition of the death penalty. The parties to the second Optional Protocol have expressed their view that the abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights.

Optional protocol to ICESCR– provides a medium to the aggrieved individual who’s social, economical and cultural rights have been violated to present his complaint in the international level and seek remedy. The optional protocol includes 3 procedures[13]:

1. A complaints procedure

2. An inquiries procedure

3. An inter-State complaints procedure

Comparison Between UDHR and ICCPR

UDHR and ICCPR are considered as essential documents when it comes to Human Rights. There are similarities between UDHR and ICCPR, for example, they consist of similar rights like right to life, liberty, freedom of speech and expression, etc. Some differences can also be found between UDHR and ICCPR. The first and the most apparent difference is that UDHR is not legally binding but ICCPR binds each of its signatory countries legally to the covenant, violation of the rights under the covenant is a punishable offence. ICCPR is the most comprehensive document as compare to UDHR. UDHR touches every aspect of human rights but ICCPR mostly focuses on civil and political rights. However, irrespective of the fact that whether there are similarities between the two or not, or whether one is overlapping the other, we can’t deny that these rights are immensely important, not just in our present situation but also for our better future.

Conclusion

Every individual is entitled to the basic human rights by birth. Human Rights are inalienable and inherent rights.  It is very essential to understand the importance of human rights and one must acknowledge it. These rights form a quintessentially part of every human being, and that is why every democratic country is working towards the enforcement and protection of these rights. It is also an individual responsibility of every human being to respect these rights and abstain from violating them.

For more notes on Human Rights, Click Here.

For law notes, Click Here.


[1] Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461

[2] Universal Declaration of Human Rights: Why does it matter? By Claude Welch

[3] Fact Sheet No.2 (Rev.1), The International Bill of Human Rights

[4] https://www.un.org/en/universal-declaration-human-rights/

[5] https://www.casemine.com/judgement/in/5609adc5e4b01497114123ad#53

[6] https://www.un.org/en/universal-declaration-human-rights/

[7]https://www.un.org/en/universal-declaration-human-rights/

[8] https://www.legitquest.com/case/uppalapati-nirupa-rani-another-v-koganti-lakshmi-others/1B447

[9] Debating Human Rights- Universal or Relative to Culture? By Tom O’ Connor

[10] Debating Human Rights- Universal or Relative to Culture? By Tom O’ Connor

[11] https://indiankanoon.org/doc/1741605/

[12] http://extradition-treaty-498aipc.blogspot.com/

[13] https://www.escr-net.org/ngo-coalition-op-icescr/what-op-icescr


Author Details: Roshni Kalam [Student, Techno India University]

Law Library LawBhoomi

Leave a Reply