As per the jurisprudential approach, human rights are understood as those rights which every human holds by the virtue of being human beings. These rights are internationally recognized rights and are entitled to humans irrespective of their gender, caste, religion, creed, race, or colour and no one shall be discriminated against on any of these grounds mentioned hereto. As per the Convention on the Rights of the Child, ‘Human rights are those rights which protect the dignity of all human beings’. It further states about the relationship between the humans and the State, how the rights and obligations arise and moreover, about the well-being of humans living in the society. [1]
Introduction to Human Rights
Human rights are formally recognized under International Human Rights Law. They may be in the form of guidelines, treaties, customs, etc. These are secured and protected rights that prevent the interference of government in human dignity and freedom. However, there is no particular definition of human rights; they are understood as rights that are entitled to every person by being a human. Therefore, the protection of human rights is expressed in treaties or other sources of law, which protect the rights of humans by abandoning the government in indulging with the personal right to enjoyment or other rights pertaining thereto. However, in the interest of justice, the government is allowed to interfere when there is any infringement or violation of rights. [2]
Universally, human rights are protected in the Universal Declaration of Human Rights (UDHR) which was proclaimed by the UN General Assembly in 1948. It is a milestone declaration that has for the first time, in the history of human rights recognized & protected human rights universally. The only document which has been translated in more than 500 languages around the world by various legal representatives is further divided into two covenants, International Covenant on Civil & Political Rights & International Covenant on Economic, Social, and Cultural Rights together as UDHR. [3]
States protecting Human rights
Every person has rights and obligations under human rights law including State. The primary duty of the State is to respect the individual’s rights and to protect the rights which are violated by a third party against such an individual. The rights are protected by the State both at the national & international levels. It is the duty of the States to maintain standards and institutions as per the individual’s needs and wants. In fact, they are the first ones to inform international standards regarding the violation of any human rights. [4]
Many rights are provided by the States to all individuals, while certain rights are assigned to the individuals living within the territory of a particular State, e.g. right to vote. It is a mandatory obligation of the State to implement the human rights mentioned under the provisions of the Declaration and to ensure each and every person within the juridical limits is able to enjoy the rights peacefully. Further, States shall bring awareness about the various human rights, so that every individual can exercise their fundamental rights without any interference and thereby, creating the institutions for the promotion and development of human rights, e.g. Commission on Human Rights or others. Therefore, the States shall take all the necessary measures needed for facilitating human rights at the domestic and international levels socially, economically, or politically. [5]
In the International Human Rights Law, the obligation of states has been divided into two different categories: negative obligations & positive obligations. This means, if a person is found guilty of an offence after conducting a fair trial then his right to freedom of movement can be restricted by the State. Such obligations are considered as positive obligations wherein they secure the fundamental rights of individuals by punishing the offenders. On the contrary, where any police official or other person acting on his behalf, willingly or arbitrarily kills the victim, then in such cases, States have a negative obligation by not making any decision that harms the individual’s right or dignity. [6]
However, the State may restrict or suspend certain rights in case of emergency but these restrictions can never be discriminatory or arbitrary & intimidation of the same shall be made to the Secretary-General of the United Nations. The exception to suspension of rights has been mentioned under Article 4 para 3 of the International Covenant on Civil & Political Rights (ICCPR) which says that basic rights like the right to life, freedom from torture, right to care, or others cannot be suspended even in the case of emergency by the respective State.
Human rights law vis-à-vis Humanitarian law
The above two laws are internationally recognized laws and have some similar aims. Human Rights Law is recognized and protected under UDHR whereas International Humanitarian Laws are embodied in the four Geneva Convention of 1949 & its two additional protocols on the Protection of Victims of International and Non- international Armed Conflicts of 1977. To prevent atrocities or cruelty during the war or situation of armed conflict there was a need to frame a legislation called International Humanitarian Laws (IHL). IHL is applicable to protect the persons engaged or no longer engaged in war or armed conflict or are wounded, shipwrecked, prisoners, or combatants. Hence, in all the Geneva Conventions of 1949 on IHL Article 3 of the conventions mentions the minimum standards to be followed in internal armed conflicts, that is, the person must be treated with humanity or care even if they are hostiles. [7]
It is ascertainable that human rights are universally recognized rights and humanitarian laws are applied only in case of war or armed conflict, the distinction of the laws raises a conflict between the two whether the latter is lower than the former in terms of applicability.
The International Court of Justice has explained the relationship between the two & hereby it states that:
‘The legal protection offered by conventions on human rights cannot cease in context of war or armed conflict not even in the case of emergency and with respect to the IHR and IHL, some rights may be for human rights others for international humanitarian law and remaining which covers both the branches of International law wherein Humanitarian law shall be treated as lex specialized i.e. special law.’ [8]
In terms of monitoring both the international bodies of law, one body of law must be preferred over other which provides more protection to individuals, meaning thereby, human rights have detailed provisions with respect to ‘free trial’ than it must be preferred over humanitarian laws and considering the violation of civil rights or political rights the provisions are specifically mentioned under humanitarian laws. [9] Therefore, it can be concluded that laws which are more specific will prevail over others. In order to determine the most specific rules or procedures, the pragmatic approach must be taken while monitoring the body of principles so that no conflict can arise by the very legal bodies discussed.
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Human rights: International Standards and Principles
The very foundation of international human rights has been derived from the Universal Declaration of Human rights (UDHR) in 1948. It is the main body which has legally binding human right treaties. The body has ensured that every human rights must be entitled to the basic rights such as the right to food, right to life, right to dignity, or others pertaining thereto irrespective of their colour, caste, sex, religion, or creed. Therefore, these rights are inalienable and are equal for all. UDHR has inspired many treaties and declarations for the promotion and protection of human rights. Earlier to this, the rights of people existed at the domestic level which was protected through rights derived from the Constitution. [10]
The rich body has been drafted by the Commission of Human Rights led by Eleanor Roosevelt who adopted human rights and later on it became UDHR, which is the first universal document containing details on fundamental rights. It may also be ratified by the States to become a part of the international community under the UN Charter. The UDHR had been further categorized into two major covenants i.e. International Covenant on Civil & Political Rights and International Covenant on Economic, Social, and Cultural Rights together called the International Bill of Human Rights. The two major covenants legally bind the State which has widely ratified them.[11]
a) International Covenant on Civil & Political Rights (ICCPR):
These rights are ‘first generation rights’ which specifically relate to liberty and freedom from governmental interference. The covenant displays the State responsibility to administer justice and rule of law and moreover, in discharging the responsibilities in securing the rights both of victims and accused. The first generation rights encompass the basic human rights, and relate it to ‘physical injury rights’ such as the right to life, right of protection, liberty rights, slavery, etc., & ‘due process rights’ such as protection against arrest or detention, right to freedom, equality rights, etc., and further ‘personal rights’ such as privacy rights, freedom of speech and expression, right to religion, etc. The covenant permits the State to restrict or suspend the right of an individual whenever there are circumstances threatening the nation. Therefore, certain rights like the right to food, life, personal liberty can never be suspended in any circumstances.[12]
b) International Covenant on Economic, Social and Cultural Rights (ICESCR)
The International covenant was adopted in 1966 by the General Assembly. Civil and political rights are more internationally promoted as compared to any other right this led to the erroneous presumption that such civil or political rights have gained more legal scrutiny than economic, social and cultural rights. The rights adopted by the present covenant are generally considered as ‘second generation rights’, which are necessary for societal well-being, the living standards of human, and prosperity. These rights are designed to maintain the standards at the working place more specifically rights which are needed for social protection such as the right to work, right to property, right to freely participate in cultural life which also includes, right to fair and free environment, etc. Herein, the State ensures the rights are legally-recognized and involve resources and funding. The legal obligation towards the State is to take necessary &positive steps to ensure that these rights are implemented as per the human living standards with maximum resources. [13]
The above two international covenants are major or core in the area of promotion and protection of human rights. There are other core universal human rights which are based on women, child, racial discrimination, convention against torture and other degrading treatment or punishment. Further, there are conventions on the protection of migrant workers and their family members including the convention on persons with disabilities.
Conclusion
The author in the present article concludes that the internationally recognized human rights law has embarked its journey at a long pace. The various conventions and declarations by legally recognizing and protecting human rights have actually determined ‘what is a human?’, although no particular definition of human rights has been mentioned therein. These rights are not only secured but they also put an obligation or duty towards the State to respect and protect the rights as per the connivance of human needs and securing dignity in the society. The States in certain circumstances can put reasonable restrictions wherever needed in the interest of society at large. However, some specific rights cannot be erupted even by the States in any case. The significance of human rights can be seen from the milestone document of UDHR, which has universally recognized human rights. The scope of human rights is broad enough to cover each and every right entitled by the consequence of human beings and in this regard, the progressive steps are taken by various declarations, conventions, or treaties. Therefore, it should be the duty of every individual to stand up for their rights to protect them and the rights of others as a human being.
References:
[1] The UN Convention Children’s Fund, What are Human rights?, available at: https://www.unicef.org/child-rights-convention/what-are-human-rights (last visited on October 15, 2020).
[2] The Equality and Human Rights Commission, What are Human rights?, available at: https://www.equalityhumanrights.com/en/human-rights/what-are-human-rights (last visited on October 15, 2020).
[3] The UN, Peace, dignity and equality on a healthy planet, Human Rights, available at: https://www.un.org/en/sections/issues-depth/human-rights/ (last visited on October 17, 2020).
[4] Icelandic Human Rights Centre, The Role of State, available at: https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-actors/the-role-of-states (last visited on October 18, 2020).
[5] The UN Social Rapporteur on situation of Human Rights Defenders, What are the obligations of States?, available at: https://www.protecting-defenders.org/en/content/what-are-obligations-states (last visited on October 19, 2020).
[6] Tatyana Eatwell, State Responsibility for Human Rights Violation committed in the State’s territory by armed non-State actors, GA 12/43 (December, 2018).
[7] International Committee of The Red-cross, IHL and human rights law, available at: https://www.icrc.org/en/document/ihl-human-rights-law (last visited on October 19, 2020).
[8] The UN Manual on human rights monitoring, Applicable International Human rights law and International Humanitarian law during armed conflict framework 1-15, available at: https://www.ohchr.org/Documents/Publications/Chapter05-MHRM.pdf
[9] Id.
[10] Shapsea, Introduction to Human Rights Standards 38, (International Standards, 2nd edn., 2016).
[11] Id.
[12] Stewart, David P., Terrorism and Human Rights: The Perspective Of International Law” (Middle East Institute, June 2018).
[13] Id.
BY SURABHI SHARMA | UPES, DEHRADUN