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E-Notes Human Rights Unit- 2
Human Rights (Guru Gobind Singh Indraprastha University)
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E-Notes
: BALLB/BBALLB Sem VIIth (A+B+C)
: HUMAN RIGHTS LAW
: LLB-407
: Ms. Akansha Singh
Unit-2
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CLASS & SECTION
SUBJECT NAME
SUBJECT CODE
FACULTY
INTERNATIONAL HUMAN RIGHTS LAW
a. UN CHARTER
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The United Nations (UN) is an international organisation whose stated aims
are to facilitate cooperation in international law, international security,
economic development, social progress and human rights issues. The
principal institutional framework for furthering human rights in the world
community is United Nations (UN), the only intergovernmental structure
with a general mandate for realizing all human rights in all countries. The
UN is a tool of geopolitics for some and a beacon of hope for others.
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HUMAN RIGHTS IN THE UN CHARTER
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The founders of the UN, not content to treat human rights as merely one
among many shared objectives of UN member governments, implicitly
articulated a theory of peace according to which respect for human rights
and fundamental freedoms is a necessary condition for peace within and
among nations. The Charter’s Preamble places “faith in fundamental human
rights” immediately after its aim “to save succeeding generations from the
scourge of war.” Yet the Charter does not apply this theory to the relative
powers of the UN’s main organs. Instead, the human rights provisions are
relegated, in the chapter on the purposes of the UN, to achieving
international cooperation (art. 1(3)) and, in the chapter on international
economic and social cooperation, to promoting “universal respect for, and
observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion” (art. 55). The UN General
Assembly (UNGA) may initiate studies and make recommendations for the
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purpose of “assisting in the realization of human rights” (art. 13(1)) and the
Economic and Social Council (ECOSOC) may make recommendations and
draft conventions on human rights (art. 62(2) & (3)) as well as set up
commissions, including to promote human rights (art. 68), which it did in
1946 by establishing the UN Commission on Human Rights (replaced in
2006 by the UN Human Rights Council or HRC). The Charter language was
deliberately weak, emphasizing “promotion” rather than “protection” by the
General Assembly and ECOSOC, while granting to the UN Security Council
(UNSC) sole authority to render binding decisions and require states, under
the threat of economic, military, or other sanction, to modify their aggressive
behaviors.
MAIN BODIES OF THE UN
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The main bodies of the United Nations are the General Assembly, the Security
Council, the Economic and Social Council, the Trusteeship Council, the
International Court of Justice, and the UN Secretariat. All were established
under the UN Charter when the Organization was founded in 1945. The UN
Charter assigns to the Security Council primary responsibility for the
maintenance of international peace and security.
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The Security Council has primary responsibility, under the UN Charter, for the
maintenance of international peace and security. It has 15 Members (5
permanent and 10 non-permanent members). Each Member has one vote. Under
the Charter, all Member States are obligated to comply with Council decisions.
The Security Council takes the lead in determining the existence of a threat to
the peace or act of aggression. It calls upon the parties to a dispute to settle it by
peaceful means and recommends methods of adjustment or terms of settlement.
In some cases, the Security Council can resort to imposing sanctions or even
authorize the use of force to maintain or restore international peace and
security.
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Economic and Social Council
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Designed to be the UN’s main venue for the discussion of international
economic and social issues, the Economic and Social Council (ECOSOC)
directs and coordinates the economic, social, humanitarian, and cultural
activities of the UN and its specialized agencies. Established by the UN
Charter, ECOSOC is empowered to recommend international action on
economic and social issues; promote universal respect for human rights; and
work for global cooperation on health, education, and cultural and related
areas. ECOSOC conducts studies; formulates resolutions, recommendations,
and conventions for consideration by the General Assembly; and coordinates
the activities of various UN programs and specialized agencies. Most of
ECOSOC’s work is performed in functional commissions on topics such as
narcotics, population, social development, statistics, the status of women,
and science and technology; the council also oversees regional commissions
for Europe, Asia and the Pacific, Western Asia, Latin America, and Africa.
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The International Court of Justice is the principal judicial organ of the United
Nations. Its seat is at the Peace Palace in Hague (Netherlands). The Court’s role
is to settle, in accordance with international law, legal disputes submitted to it by
States and to give advisory opinions on legal questions referred to it by
authorized United Nations organs and specialized agencies. The International
Court of Justice functions in accordance with its Statute.
PURPOSE AND AIMS OF UNITED NATION
The UN Charter sets forth the "inherent dignity" and the "equal and
inalienable rights of all members of the human family." Upholding these
human rights principles as "the foundation of freedom, justice, and peace in
the world" is fundamental to every undertaking of the United Nations.
The pursuit of human rights was a central reason for creating the UN. It was
founded in 1945 and began with fifty countries signing the United Nations
Charter. As of 2007, there are 192 United Nations member states,
encompassing almost every recognised independent state. The UN Charter
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obliges all member nations to promote “universal respect for, and
observance of, human rights” and to take “joint and separate action” to that
end.
Article 1
The Purposes of the United Nations are:
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The Charter consists of a preamble and a series of articles divided into
chapters. It includes: purposes of the United Nations; criteria for
membership; the organs and institutions of the UN; arrangements for
integrating the UN with established international law; and the enforcement
powers of UN bodies.
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1. To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats
to the peace, and for the suppression of acts of aggression or other
breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which
might lead to a breach of the peace;
2. To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace;
3. To achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character,
and in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
4. To be a centre for harmonizing the actions of nations in the attainment
of these common ends.
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of
all its Members.
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2. All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain
from giving assistance to any state against which the United Nations
is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of
the United Nations act in accordance with these Principles so far as
may be necessary for the maintenance of international peace and
security.
7. Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter; but this
principle shall not prejudice the application of enforcement measures
under Chapter Vll.
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b. UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR)
In December 10, 1948 the General Assembly of the United Nations adopted
and proclaimed the Universal Declaration of Human Rights the full text of
which appears in the following pages. Following this historic act the
Assembly called upon all Member countries to publicize the text of the
Declaration and "to cause it to be disseminated, displayed, read and
expounded principally in schools and other educational institutions, without
distinction based on the political status of countries or territories".
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The 1948 Universal Declaration of Human Rights is probably the most
famous human rights document and at the same time is the cornerstone of
international human rights protection.
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Until World War II human rights and its protection were almost exclusively
a matter for national constitutions and only very few questions were ruled on
at an international level. The effects of the war and fear of communism
however led to a turnaround. During the war the Allies explained that they
were willing to create conditions for all humans to live in freedom and free
from any fear and shortage.
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Therefore the UN Charter of 1945 contains the clear order to the community
of states to encourage the respect and realisation of human and basic rights.
The general explanation of human rights states that civil, political and social
rights belong to human beings in order to preserve one’s dignity. The thirty
articles of the Universal Declaration of Human Rights guarantees protection
of the person, of procedural law (claim of effective legal remedy), classical
freedom rights such as freedom of expression, as well as economic, social
and cultural rights. These rights should apply to all people irrespectively of
their race, gender and nationality, as all people are born free and equal. The
general explanation of human rights is not a legally binding document,
however it has a political and moral importance and many of its guarantees
have today become standard expectations.
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The UDHR was significantly important in terms of its content and a
benchmark for the establishment of binding UN human rights Conventions
since 1950’s.
c. COVENANTS OF 1966
United Nations eventually adopted the two covenants that are International
covenant on civil and political rights (ICCPR) and International covenant on
economic, social and cultural rights (ICESCR) in two separate instruments.
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INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS (ICCPR)
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The preamble of the covenant which was adopted in 1966 but ratified and
came into force in 1976 acknowledged that the state parties to the covenants
consider principles in the charter of the UN and recognized the civil and
political rights in Universal Declaration of Human Rights (UDHR) and
duties of individual to other individuals and community, it can be said that
this covenant has its foundation in Universal Declaration of Human Rights
and UN Charter.
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Currently, there are 165 state parties and 72 signatories to the ICCPR, 113
states are also parties to the First Optional Protocol to the ICCPR.
The Second Optional Protocol on abolition of death penalty was adopted for
ratification in 1989 and came into force in 1991 with 71 state parties.
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The Covenant can be divided into a preamble and six parts, Part I –III
(Articles 1 to 28) constitutes civil and political rights comparable to
European and American conventions on Human Rights and African Charter
on Human and Peoples’ rights and majority of these are ‘negative’ rights and
briefly they are, the right to self-determination, the right to life, freedom
from torture ,degrading treatment freedom from slavery and slave trade,
right to liberty and security ,the right of detained persons, freedom from
imprisonment from debt, freedom of movement and choice of residence,
freedom of aliens from arbitrary expulsion, right to fair trial, Prohibition
against retroactivity of criminal law, right to recognition everywhere as a
person before the law, right to privacy, right of freedom of thought,
conscience and religion, right of opinion and expression, prohibition of
propaganda for war and of incitement to national, racial or religious hatred,
right to peaceful assembly, freedom of association, right to marry and found
a family, rights of the child, political rights, equality before the law, right of
person belonging to the minorities.
Part IV to VI (Articles 28 to 53) contains monitoring provisions,
interpretation and final clauses. The First optional protocol has 14 articles
with nexus to procedures on individual complaints while second optional
protocol basically amended the right to life in article 6 of ICCPR.
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INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS (ICESCR)
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The covenant was adopted alongside ICCPR to develop UDHR rights, it
contains ‘second generation’ rights. it was opened for signature in 1966.it
came into force in 1976 with 155 States as parties as at January 2007.
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During the cold war, western countries showed preference for political and
civil rights while socialist states became sponsors of economic, social and
cultural rights. ICESCR covenant with new optional protocol has preamble
that is similar to ICCPR that is, ‘founded on the inherent dignity of the
human person’. it also has five parts, Part I of the covenant is solely on
Article 1,which on right of all people to self-determination with free right to
pursue economic, social and cultural development and right to deal freely
with their natural resources and wealth.
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Part II of the covenant in Article 2 to 5 states obligations and clauses that
are applicable to Part III generally.
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Part III constitutes substantive provisions, what Cravens called ‘the heart of
the covenant’ Includes, the right to work, the right of fair condition of
employment, the right to join and form trade unions, the right to social
securities, the right to protection of family, right to adequate standard of
living, the right to health, right to education, and the right to culture and
enjoyment of scientific progress.
Part IV is about system of supervision by submission of periodic report to
UN, the reports which will be scrutinized by economic and social council of
the UN (ECOSOC). The part also contain ‘saving clause’ with University,
Delhi) intention of ensuring developed states did not interfere excessively by
means of the supervisory system in the utilization of natural resources within
developing countries’.
Part V is on ratification, process of amendment, its application to federal
,states ‘without any limitations or exceptions’ and its entry into force Some
of the article of the covenant are recognised in other international convention
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like Convention on the Rights of Child(1989),Convention on the Elimination
of all Forms of Racial Discrimination(1965) etc.
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The supervision of the covenant by virtues of Articles 16 and 17 is by
Economic and Social Council (ECOSOC), one of the UN organs, states send
their report to the Secretary General of UN, who will in turn transmit the
report to ECOSOC for consideration. ECOSOC in 1985 created a new body
to assist in report consideration, the body is the Committee on Economic,
Social and Cultural Rights, now the main supervisory body. d. Optional
Protocols an optional protocol is a treaty that complements and adds to an
existing human rights treaty. For this reason, only States that have already
agreed to be bound by a parent treaty may choose to be parties to optional
protocols. There are only two kinds of optional protocols in the UN Human
Rights Treaty System: a) Those that address a new substantive area that has
not been included in the original text of a treaty.
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For example the Second Optional Protocol to the International Covenant on
Civil and Political Rights which considers the question of the abolition of
the death penalty; and b) Those that address procedural aspects that may
affect the way a treaty operates and is enforced. For instance, by creating
new compliance mechanisms as in the case of the Optional Protocol to the
CEDAW Convention.
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Optional protocols establish grievance procedures by which individuals and
groups of individuals can file formal complaints in cases where States have
violated rights recognized in a human rights treaty. In this connection, when
an optional protocol creates one or more enforcement mechanisms, the
monitoring body established by the parent treaty administers these. Through
complaints and inquiry procedures, the international bodies in charge of
supervising the implementation of a human right treaty can elaborate on the
meaning of the rights contained on this treaty and contribute to the
development of international jurisprudence. The Optional Protocol to the
ICESCR (OP-ICESCR) is a separate treaty open for signature and
ratification by States that are already parties to the ICESCR. The OPICESCR does not create any new substantive rights. It sets a mechanism that
makes it possible for individuals or groups to submit a complaint to the
Committee in regard to violations of their economic, social and cultural
rights by a State party.
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For example, a community that was wrongfully evicted by the local
authorities without being able to benefit from any remedies provided by
national courts would be able to file a complaint directly to the Committee
on ESCR. Unless the Optional Protocol to ICESCR is ratified and enters into
force, individuals or groups of individuals cannot seek redress or obtain
remedies in an international forum for violations to the economic, social and
cultural rights protected in this treaty. One of the limitations of the Reporting
Procedure as stated in the Covenant is that it does not enable the Committee
to focus on individual victims or to make recommendations on their behalf.
The OP-ICESCR provides a forum for complaint and an avenue for
disadvantaged groups within societies to obtain remedies for breaches of
their economic, social and cultural rights.
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Sd/Ms. Akansha Singh
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