Human Rights and International Law
Human nature has a habit that in any society, even one of the most civilized one, is sure to witness disputes between men, man and the society, and of course man and State, and so on. The Civilised societies have, always sought to establish the rule of law in order to maintain peace and order. Medieval period, virtually around the world, witnessed a rise in strength of tyrants with expansionist plans. A group of tiny European countries, wrested control over and established their colonies in huge geographical areas and almost everywhere, in specifically in Africa and Asia. It came in the form of colonialism, neo-colonialism, apartheid, and racism, pitted upon weaker States by mighty ones. The greed and lust for power and the myth of race based superiority, along with a sensitive impunity, had led us to the two World wars that has seen the millions of lives being taken away without any reason. At the time when the powers of the World were sitting across the table, after the Second World War, to establish UNO, were guided by the previous experiments on the given subject, mainly by the ones during the early 19th century which focused on the abolishing of slavery & inhuman laws of war and the protection of minorities. Abandoning of trafficking of slaves in the colonies of Britain in 1807 resulted in a number of International Conventions and Protocols including the Vienna Conference in 1815, Berlin Conference in 1885, Conference in Brussels 1890 and League of Nations Covenant which resulted in the Convention on Slavery in 1926. The matters relating to the humanitarian laws of warfare, the emergence can be traced to the time immomemorable, the earliest being the times, according to Hindu belief, of Lord Rama who had talked of the Dharma Yudh.
UNIVERSAL NATURE OF HUMAN RIGHTS
There can be no particular sets of human rights for a particular region of humanity. To call them as ‘rights' means that they are claimed ‘as rights' and not merely the appeals of grace, or that of charity, brotherhood or love; rather they need not be earned or to be deserved. These are more than the normal aspirations or reasoning of ‘the good' but claims about the entitlement and the corresponding duty in a political system under the provided applicable law, and if only in a moral order which obliges a moral law. Medieval period has seen a lot of infringements of human rights of a large number of people by a handful of dictators, has become a thing of past. The colonial period is over across the globe. The day when the United Nation had come into being for bringing order and peace within the Nations as well as across the whole world, has travelled in a positive way. Thus, the World in present day situation is described as being made up of few groups, the higher position being acquired by the industrialized economies which are referred to as ‘First world' Countries and the lower positioned, and being constituted by bulk of population, known as the ‘Third world', Countries or the developing economies. International law emerges out from the need of interdependence by different parts of the world upon each other.
Declaration made in U.N. Charter for Protection of Human Rights
The most important right for protection of Human Rights emerges out from the Universal Declaration of Human Rights, proclaimed and adopted by the General Assembly of UN on 10th of December 1948. The Preamble talks about the Human Rights and its Universal Declaration as it is of great importance.
International Covenants for Protection of Human Rights
The International Covenant relating to Civil and Political Rights provides that all the humans “have been provided with the right to self determination” and henceforth, there is a right of “independent determination of the political status and to pursue their economic activities, cultural and their social development freely” and for such reasons to “freely dispose their natural wealth and as well as resources” but to do this “without any prejudice to any of the obligations arousing out of the global economic cooperation which is based upon the principles of mutual benefit”.
This International Covenant once again talked about the inherent right to life and right to be protected by the law as also right against torture or cruel degradation treatment or punishment. Article 9 reaffirms the right to liberty and security of person. Article 12 extends the right to liberty so as to include within it the liberty of movement, subject to restrictions provided by the law on concerns of national security, public order, public health or morals. Equality before law; right to privacy; right to found family; freedom of thought, conscience, belief, religion and opinion; freedom of association or assembly, right against discrimination; right to equality of opportunity were reiterated. The Covenant thus makes comprehensive provisions with regards to rights concerning self determination by the free people of every State.
The General Assembly of the United Nations had adopted on 9th December 1975, a Declaration on protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment. In order to, “make more effective the struggle against torture and other such degrading treatment” Convention against Torture was adopted as obligatory upon every State, amongst others, to “take effective, legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. This convention created a legal ground at the international arena for “mutual judicial assistance” between different States. History would bear testimony to the fact that, more often than not, it is them who fall victim to acts designed for exploitation
. The Declaration of the Elimination of Discrimination against Women was transformed into a multilateral treaty through the Convention adopted by the United Nations General Assembly in December 1979. By adopting this Convention, the United Nations reaffirmed its faith “in fundamental human rights, in the dignity and worth of the human persons” of men and women alike. Taking a note of the obligation of the State to ensure the equal rights of men and women in the matter of economic, social, cultural, civil and political rights on one hand and the continuation of extensive discrimination against women on the other, a measure was considered requisite to ensure that obstacles were removed in the participation of women alongside men, so as to promote the growth of prosperity of society and the family. Thus, in order to secure full development of the potentialities of the women in the services of their countries and of humanity in the matters concerning & including food, health, education, training and opportunities for employment etc.,
Protection of Human Rights of Women & Children
United Nations has declared through its determination for implementing the principles set up for the Declaration on the Elimination of Discrimination against Women. Some detailed provisions were devised in the several Articles of this Convention to provide for the equality of opportunity and the dignity in all the spheres of life to women similar to that of men. It imposed upon the States to adopt for the measures in order to make the promises held in the Convention converted into the real rights. It may be added here that the above Convention was followed by Optional Protocol opened for signatures on the Human Rights Day i.e., 10th December 1999 by the United Nations' General Assembly, enlarging the provisions so as to fully eliminate all forms of discrimination against women. As it has been mentioned earlier, the international law has also been concerned about the rights of the children. The Convention on the Rights of the Child adopted on 20.11.1989 generally treats every human being under the age of 18 years as a child. It seeks to protect every child in the matters concerning not only inherent right to life but also those concerning survival and the development, in the protection and guardianship of a caring family, into a self sufficient, healthy and useful human being.
The Optional Protocol to this Convention on the involvement of children in armed conflict and the Optional Protocol on the subject matter of sale of children, child prostitution and child pornography, both adopted on 25th May 2000 by the General Assembly enlarged the rights of children across the globe. These are examples of the growth of international law in its tremendous contribution in establishing a universal Human Rights regime for protection of the interests of human beings, cutting across political barriers, irrespective of cultural relativism and realist theory that cause some hindrance to such holistic perspective.
The UN human rights treaties are at the core of the international system for the promotion and the protection of human rights. Every UN member state is a party to one or more of the seven major human rights treaties. It is a universal human rights legal system, which applies virtually to every child, woman or man in the world. The instances of negation of international norms by the powerful countries in the matter of human rights' violation have been far too many for comfort. The peace loving nations of the world did show a realization through the United Nations for creation of a just order, and conditions of stability and well being of people across the world by assuring them basic human rights as a prerequisite for international peace.
The UN High Commissioner for Human Rights at the international level and Human Rights Commissions created by member States have all along been making the efforts to enforce the said international norms which were formalized as Conventions or Declarations more by cajoling or persuasion. The Human Rights Committee had till now been perhaps the only Committee that would formally follow up on cases where there has been a violation of a treaty right. It would keep a track of whether or not a state has followed through on its views and/or has given to the victim an appropriate remedy. It would, however, not have the capacity to force the state to provide for a remedy to the victim, and depend, as a result of the practice of follow up, to put some pressure on the state party to comply with its decision.
Effectiveness of International Law in Protection of Human Rights
The critics who query about the very legitimacy of international law on the subject of protection of Human Rights would raise concern regarding the treaties being the result of negotiation by executive wing of Governments which do not necessarily reflect the willingness of the public of the member States; there are defects in the processing of ratifying and consequently testing it on the constitutional distribution of powers; wide generality of the terms used therein the provisions contained in international law instrument, missing in precision, and questioning the sovereignty of the member Countries.
The Conventions, Treaties, Declarations or Protocols remain merely paper promises until they are formally ratified by the member States and then acted upon by bringing about legislative measures in accordance with the Constitution of the country so as to translate the rights declared at the international level into real municipal rights. The journey from the stage of the declaration in the international instruments to real enforceable rights in each of the Member State has been slow and tardy. In the matters of implementation, different countries have been selective in their approach. Further, mere declaration of a right in the domestic law of the country cannot be sufficient. It has to be backed by effective machinery that can actually enforce the rights, bring to justice and punish those who violate these rights. Indeed, such machinery is required at two levels; one, to deal with violations by the subjects of the country within itself and the second, where these violations take place at the behest of one State against another State or against the subjects of the latter.
The phenomenon of terrorism, which has become a concerning for a free society, mainly after 9/11, essentially involves human rights' violations. The instrumentality at the international level to deal with such violations has to be a body with requisite sanction and support of the world community. The International Court of Criminal Justice has so far not yet provided the answer, given its toothless structure. But then, these are the subjects that would beg for answers perhaps for some more time to come. The Declaration made therein at St. Petersberg of 1868, the first Hague Conference of 1899 followed by Hague Rules of Air Warfare of 1923 and the Convention for the Protection of Civilian Population Against New Engines of War, adopted by the International Law Association in 1938, brought about the semblance of some order. Of course, the Geneva Conventions of 1927 & 1949, and Article 25 of the Covenant of the League of Nations, created a duty for humane approach even in the matters of war, which has been one of the constants of human history.
The Charter of the United Nations was the final turning point on the subject matter of human rights vis Ã vis international law.
Incorporation of International Law into Municipal Law to protect Human Rights
While talking regarding the human rights at International level, it must be quite necessary to take into consideration the track record of own country as well in this context. It can be also said that there is a reason for us to be proud of the Indian contribution in this field. India have had been a major party to these meaningful instruments and have been cooperative on the subject matter of human rights from the time of our independence. Article 253 was inserted within our Constitution for divesting within the Parliament of the “power of making any law” within the Indian territorial regime “for the implementation of a treaty, an agreement or a convention” which is made at any of the “International Conferences, Associations or through any other Body”. India was established as a liberal democratic State which guarantees to all persons, not merely its citizens, and certain basic human rights as included in the Part III dealing with Fundamental Rights, making them justiciable, rendering the Supreme Court the guarantor. Article 51, included in Part IV dealing with Directive Principles of State Policy, casts a duty upon the Indian State, amongst others, “to foster respect for international law and treaty obligations”. The international conventions on the subject of human rights of various kinds have been converted into legislative measures by the Indian Parliament. The examples would include Protection of Human Rights Act, Juvenile Justice Act, Domestic Violence Act, and Immoral Traffic (Prevention) Act. The list could be non exhaustive. Indian Judiciary has been proactive and has scrupulously and with zeal has guarded the rights fundamental for human existence.
The scope of right to life has been widened so as to read within it the right to live with dignity, right to healthy environment, right to humane conditions of work, right to education, right to shelter and social security, right to know, right to adequate nutrition and clothing and so on. This has been done on the premise that the international instruments cast an obligation upon the Indian States to see that the message is not drowned, that the core principle is never forgotten and as far as possible effect is given to the commitment made to the global community and for such purposes regard is given to the international norms for construing domestic laws, more so when there is a void in the latter and there is no inconsistency between the international law and the local law. If any illustration is required to this approach of Indian judiciary, reference can be readily made to the cases of Apparel Export Promotion Council Vs. A.K. Chopra [(1999) 1 SCC 759]; Vishaka v. State of Rajasthan [(1997) 6 SCC 241] and T.N. Godavarman Thirumalpad v. Union of India & Ors. [(2002) 10 SCC 606]. One method for ratification of International treaty obligations is that of ‘automatic incorporation'. India, like majority of sovereign States, however, follows the mode of ‘legislative incorporation'. Since ratification brings in additional responsibilities, including those to introduce a legislation, there are difficulties inherent in a democratic setup in achieving a consensus on certain areas as every interest group looks at it from its own preferred vantage point.
Realization had showered upon the civilized region of the humanity, wherefore its future is dependent upon the very establishment of a global community that is based on the basic principles involving, the rights & equality of men and women, and one which has enjoyed these rights as the ones being endowed to all of the living creatures and where there is no discriminatory action on any account, as if the is community wedded for the target of achieving common good. The human rights concept is lying upon the principle that these are some sacrosanct bundles of interests vested upon the human beings so that they can be able to live a dignified life and that too “not by some chance or choice but because of being human”. As put succinctly therein the US Declaration of Independence, these spring forth from self evident truths “that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness”. Rules of international law were designed to protect the human rights as we now know, use or enforce are by and large a phenomenon created by the world order established by United Nations. One cannot comprehend the significance and utility of the various Conventions, Declarations or Treaties on the subject unless one appreciates these concepts in a proper perspective. This has naturally required a balance to be created between individual rights and public interest. Human rights thus came to be evolved as those natural rights which are fundamental to the very existence and growth of a human being and which every civilized society would like to ensure unto them, albeit in its own larger interest. By this reckoning, the concept of human rights has to be of universally applicable.