HUMAN RIGHTS

Rights

A right means a claim advanced by an individual or a group of individuals enforceable in a court of law.

Hence it is to say that, “all rights are claim but all claims are not right.

Example: man is a national animal”.

It is also said that “all demand are want but all want are not demand”.

Example: A bigger who has a demand for a car but he can not afford it for want of wealth.

Right is an interest created by ordinary law by the constitution?

Example: Fundamental rights, Bill of rights.

Human right, the essential elements of human right, fundamental right

Human rights are these of legal and moral rights which are inherent by nature. These rights come with birth and are applicable all members of the human family irrespective of their six, calour, race, etc.

We also say that human rights are universally inherent, inalienability and inviolable rights of all members of the human family which the states are primarily to ensure to their citizens by providing a well defined procedure.

If we analyze this definition then we get three essential elements of human rights. These are given below:

(i) Universal inherent.

(ii) Inalienability.

(iii) Obligation of the state to ensure human rights to their citizen by providing well defined procedure.

Philosophy:

no discrimination can be made in respect of the enjoyment of human rights in the ground of sex, colour, religion or language. It concern with dignity and worth.

Human rights are 4 types:

(1) Civil rights

(2) Political rights

(3) Social and cultural rights

(4) Economic rights.

Fundamental rights:

When certain human rights are written down in a constitution and are protected by constitutional guaranties they are called Fundamental rights. They are called Fundamental rights in the sense that they are placed in the supreme or Fundamental law of the land which has a supreme sanctity over all other law of the land.

Difference between the human right and fundamental right

If we analyzed the definition than we get some difference, these are given below:

Fundamental rights Human rights

1. Fundamental rights are the subject of constitutional law. 1. Human rights are the subject of international law.

2. Fundamental rights are only applicable individual living in a state. 2. Human rights are applicable all members of the human family, in respect of sex, calour, etc.

3. Fundamental rights are judiciary enforceable by the court of law of a state. 3. Human rights are not judiciary enforceable by the court of law of a state.

4. Fundamental rights can be suspended during the proclamation of emergency. 4. The question of suspending Human rights due the proclamation of emergency does not at all arise.

5. Fundamental rights have territorial limitation. They have no application as Fundamental rights out side the territory of a

Particular case.

6. Fundamental rights are the part.

5. Human rights have no territorial limitations, they have universal application.

6. Human rights are the whole.

At last we can say that all Fundamental rights are Human rights, but all Human rights are not Fundamental rights.

Human right involved to a great extent, as a result of political absolutism

Human rights are those legal and moral rights which are inherent by nature. This right comes with birth and are applicable all members of the human family irrespective of their sex, colour, and race e.t.c.

The idea to a great extent evolved as a result of political absolutism since right of man became a slogan against the injustices and indignities committed by tyrannical or despotic governments. In order to limit the power of such government, attempts began to be made by the leaders of revolution to set down certain minimum rights in charters, bills, petitions or declarations that could be demanded by all citizens.

Thus the provision of the magna carta, which was in fact a treaty of peace in June 1215 between king john of England and the wealthy land owners or barons in arms, were designed to ensure the prohibition of imposition of arbitrary taxation by the king without the assent, of the create council and arbitrary seizure of property by royal officials freedom of movement for merchants within the realm trial by jury e.t.c. the object of the magna carta was to protect the barons from inferior treatment by the government , subsequently many of the rights and grunts granted to them were extended to the common people. Thus the magna carta, which was in no sense a peoples charter and contained in addition to the preamble 63 clauses, subsequently become the charter of England liberties’ and at presents, it is considered as of the most important landmarks in the history of human rights and free government.

The struggle of the Englishman in the 1600s also resulted in two more very significant human rights documents. The petition of rights of 1628 and the bill of rights of 1689. The petition of rights which was adopted by the parliament in a legal form protected the individuals against arbitrary taxation or benevolence without parliamentary approval, arbitrary imprisonment, and despotic quartering troops in private home.

Whom the English revolution arises disposed of King James II in 1688. The parliament with a view to consolidate the results of the revolution and to prevent another re-emergence of arbitrary royal rule, adopted the Bill of rights in the form of a statue. This Bill of Rights is considered as one of the most important documents in English Constitutional history.

Thus the petition of Rights and the Bill of Rights placed on the king’s power and gave more power to the parliament and the courts.

The American revolution arise, triumphant over the English king who refused to allow the colonists to have a say in the governance of the colony and subjected them to unfair taxation without representation, adopted the Bill of Rights in Virginia on 12 June 1776.

The French revolution Aries , who were the middle class and peasant people, having disposed of the nobles and bing in July 1789 set forth with remarkable lucidity in the history’ declaration of rights of man and of the Citizen. It proclaimed that “men are born and remain free and equal in rights”.

The karabvasaks notion of 3 generation of Human Right

The context of Human Right is of 4 kinds:

(i) civil rights

(ii) political rights

(iii) economic rights

(iv) social and cultural rights

The first two kinds of rights i.e. civil and political rights are called the first generation of Human Rights.

The rest two kinds of rights i.e. economic, social and culture rights are called the 2ed generation of Human Rights.

Apart from these rights there is other kind of rights which is called the solidarity rights. It is known as 3rd generation of Human Rights. It is some time called the collective rights. Such as “peoples rights to self determination”.

The real history of Human Rights

Before the 2nd world war the concept of human rights was a matter within the domestic jurisdiction of the stages to grant or deny rights to their citizens.

During the pre-world war efforts for the protection of religious freedoms, protection for war prisoners and treatment wended, protection of minorities can not be described as universal. Because they were not general human rights to which all members of the human family entitled.

But in course of time as, result of the work of international, regional governmental and non governmental organization, human rights transcend national boundaries and become a international concern.

The United Nations organization which was established in 24 October 1945 and one of the purposes of the United Nations organization is to promote respect for human rights and fundamental freedoms. The charter of the UNO embodies to the concept of Human Rights.

The charter of the UNO is the first international instrument in which the nations of the world community agreed to promote human rights and fundamental freedoms on an international level.

The universal declaration of human rights which was adopted by the general assembly of UNO on 10 December 1948, which contains a vast content of Human Rights. The declaration exercised a powerful influence through out the world both internationally and nationally and have inspired the preparation of international human rights instruments both within and outside the United Nations sustem.

Thus it can be said that the real history of human rights at the level of international law began during the later part 20th century.

The content of Human Rights

It may be mentioned here that the content of human rights – civil, political, economic, social and cultural rights, has broadly been defined at various stages of modern history. It is noticeable that the human rights mentioned in the English petition of rights and the Bill of Rights, as well in the Virginia Bill of Rights and the American declaration of independence and in the franc declaration of the rights of man are all civil and political rights. The civil and political rights are primarily associated with the English, American, and France “bourgeois” revolutions of the 17th and 18th centuries on the other hand economic, social, and cultural rights find its origins primarily in the socialist and Marxist revolutions of the early 20th century.

The movement against the slave trade

Slave trade and slavery are inconsistent to personal freedom and the dignity of man. For this reason there was the protected movement both at national and international levels to abolish slavetrade and slavery.

At the national level, for the first time the slave trade was abolish in Denmark 1807.

In Briten the parliament abolish slave trade in 1807.

But later on in 1833 Briten adopted of abolishing slavery.

In France slave trade was prohibited by Napoleon in 1814.

At the internation lave, for the first time USA and UK agree to abolish slave trade through a treaty in 1814.

In 1815 the five great powers the treaty of Vienna to abolish slavery.

The treaty of Vienna was followed by number of anti slavery treaties, agreement and conference.

Later on in 1841 the treaty of London was adopted to abolish slavery.

In 1842 USA and UK 1845 franc and Great Briten agree to co-operate in the central of slave trade. Antislavery treaties were also adopted in of African and Brussels.

In the Brussels agreement 16 nation agree to terminate the slave trade.

After the First World War the Great powers also at the peace conference fell the necessity to out law slavery.

The latest anti-slavery convention was signed by 49 nations under United Nations auspices in 1956.

Thus we say that the movement against the slave trade gradually transformed into a moment against slavery itself.

The concept of civilized nation as a need of protection of the international level

The pre world war ii international attempts to preserve certain rights of the groups of individuals was unorganized and can not be considered as universal in nature.

During the pre world war II attempts to secure religious freedom were efforts by members of one religion on behalf of their co-religionist else where. Protestant power generally tried to secure religious freedom for Protestants in etholic countries but not for Muslims, Buddhist or jeues.

To abolish slavetrad and slavery attempts were taken nationally and internationally. But most of the efforts which were taken internationally to abolish slavery were only in principle.

During the 19th century and early part of the 20th century there were same international attempts to ensure better protection for prisoners of war and treatment of wounded. But the attempts were almost isolated.

For the protection of minorities, peace treaties and minorities treaties were adopted. But the obligation under these treaties were imposed on the defeated states and the new or league of nation did not undertake similar obligation. Moreover the international protection of rights was only extended to the minorities, while the some rights if the victims belonged to the majority of the population, out of reach of the protection of the League of nation.

During the first part of the 20th century attempts were also taken to ensure the welfare of individual workers under the covenant of the League of Nations obligation were adopted for this purpose. ILO was also established under the League of Nations. But the failure of the League of Nations some what destroyed all these attempts.

This it appears that all the efforts during the pre world II for the protection of religious freedom, protection for war prisoners and treatment of ownded, protection of minorities and laborers can not be described as universal in nature.

Relation between war violation of Human Rights and peace and enter cement of Human Rights

Violation of Human Rights is a common matter during the war time. In no ages war was expected. Growing threat of was particularly necle or war treaded the peace and seceerity.

Dispossession and extermination of Jews and minorities arbitrary plaice change and seizer, imprisonment torture and execution with out public treat cause unanimous violation of Human Rights the gross violation at Human Rights due to illegal war, still threading the peace.

In fact World War II becomes a cru sate for Human Rights. Political leaders took measures for the international protection of Human Rights to ensure international peace.

Peace is a matter of Human Rights. When the demand of Human Rights arises as an international concern it was realized that peace and ………

The significance of the declaration

The real history of Human Rights at the international level began with the adoption of the universal declaration of Human Rights 1948. Even the UN charter did not contain any definition or catalogue of Human Rights and fundamental freedoms, the universal declaration of Human Rights introduce for the first time a full catalogue of Human Rights and fundamental freedom. It is the basic international statement of the inalienable and inviolable rights of all members of the human family.

The general assembly on 10th December 1948 proclaims the declaration as a common standard of achievement for all peoples and all nations.

(Next answer in the seat)

The jurisdictions of Human Rights committee

There are 3 jurisdiction of the Human Rights committee.

i) Supervisory jurisdiction under the provision of article UO of the International covenant of civil and political rights.

The state parties to the present covenant undertake to submit report on the measures they have adopted which give effect to the protected rights and on the progress made in the enjoyment of this rights.

All report shall be submitted to the secretary. General of the United nation, who shall transmit them to the committee for consideration.

The secretary general of the united nation may, after conclusion with the committee, transmit to the specialized agencies.

ii) To deal with state communication under the provision the Article 41-43 of international covenant of civil and political rights it shall make available its good efface to the state parties concerned with a view to reaching an amicable solutions of the matter which is satisfactory for them. If this result is not brought about the committee shall submit a report to the state parties concerned within 12 months. It is to be noted that this report has no binding affect whatever on the state parties.

The committee shall consist of fix persons acceptable to the states parties concerned.

iii) And to deal with individual communication under Article 1-6 of the first optional protocol, to the international covenant of civil and political rights.

The optional protocol to the international covenant of civil and political rights which was to enter into force after ratification by 10 countries. Provides that any state party can by ratification of the protocol, recognized the competence of the HRC to receive and consider communication from individuals subject to its jurisdiction, who claim to be victims of violation of any rights set forth in the covenant, the state concerned shall be enforce of the communication by written explanation and a statement of any remedies provided in the case.

The significance of UN charter concerning in respect of Human Rights

There are 2 theories concerning and significant the UN charter in respect of Human Rights.

The charter embodies nice direct reference to the concept of the Human Rights and fundamental freedoms in the preamble, Articles: 1(3), 8, 13(i) (b), 55(c), 56, 62(2), 68 and 76(c). That is why it is said that- the idea of the recognition and protection of Human Rights is a woven like a golden thread thought the entire charter as are of the principle objectives of the United Nation organization.

The responsibility for international implementation of the obligation of promoting and encouraging respect for Human Rights and fundamental freedoms for all is vested in the general assembly and under its authority in the Economic and Social council and trust ship council.

The charter of the united nation is the first international instrument in which the nation of the world community agreed to promote respect for Human Rights and fundamental freedoms on an international level. Under Auricle 56 , all members pledge themselves to take joint and separate action in co-operation with the organization for the achievement of the purposes set forth in article 55 to promote respect for and observance of Human Rights and fundamental freedoms for all without distinction as to race, sex, religious and language.

Although Human Rights constituted a theme which recurs again through out the charter and is singular in its predominance, the charter contains no definition, catalogue of Human Rights and fundamental freedoms.

The charter has little to say directly about Human Rights are scattered, thus we cryptic the term Human Rights appears infreignently, although in vital contexts.

Many have a promotional or programmatic character for they refer principally to the purposes or goals of the UN or to the competent of different UN organs. Encouraging respect for Human Right assisting in the realization of Human Rights promote…….universal respect for and observance of Human Rights not even a provision such as Article-56 which refers to undertakings of the UN, contains clear language of obligation. It notes only that states pledge themselves including the promotion of observance of Human Rights. Note also the prominence in these provisions of the nation of equal protection.

Pp118-119

International Human Rights in context law, polities, morels.

Henry j, Sterner ……and Philip abstain 1996.

The references of the Human Rights of UN charter are scattered

That is why it is said “The idea of the recognition and protection of Human Rights is woven like a golden thread throughout the entire charter as one of the principle objectives of the United Nation organization.

The charter of the United Nation is the first international instrument in which the nation of the world community agreed to promote Human Rights and fundamental freedoms on an international level.

UN shall promote respect for and observance of Human Rights and fundamental freedoms, for all without distinct is to race, sex, language religion.

Although Human Rights constitutes a theme which recurs again and again through out the charter and is singular in its predominance, that is why it is said that the reference of the Human Rights of UN charter one scattered.

The provision of the UN charter concerning Human Rights

Unlike the constitution of the League of Nations, which is the predecessor of the UN, the charter/ constitution of the newly established organization recognize that there could be no real and enduring peace among the nation of the world without of the individual who made up this nation. Although the proposals put forward by the delegation of Chile, Cuba, and panama (panama even urged the incorporation of bill of rights) to insure the protection of specified Human Rights by the UN was explicitly rejected at the charter embodies 9 direct reference of Human Rights and fundamental freedoms in the preamble, Article-1(3), Article-13(1)(b), Article-55e, Article-56, Article-62(2), Article-68, Article-8 and Article-76(c).

(Article 2 the international covenant on Economic, Social and Cultural Rights).

Article 6-15 of the ICESCR set forth 10 rights. Article 6-27 of the JCCPR provides 22 rights.

The provision of Article 2(7) of the UN charter

However there have been a number of obstacles to the realization of the full potential of this principle. The major impediment in establishing the obligatory nature of the Human Rights provision has always been Article 2(7) of the charter itself the so called “domestic jurisdiction clause”.

On the basis of this clause it has been frequently argued that the protection of Human Rights is a matter which is essentially within the domestic jurisdiction of the member state, and that there fore any obligation within that context is precluded by the application of Article 2(7). The whole question of Human Rights is bedeviled by the rule of the sovereign state and the idea of domestic jurisdiction.

However the conclusion that Article 2(7) in no manner modifies the pledge to respect Human Rights. It is only relevant in considering the power of the United Nation in enforcing the obligation. The only effect it could possible have is to limit the powers of the Economic and Social council, and of the general assembly together with other subsidiary bodies, in initialed studies, discussing situations and making recommendation in the field of Human Rights.

Paragraph 7 of article 2 refers only to such action on the part of the United Nation as amount to intervention. It does not rule out measures falling short of intervention. Intervention is a technical term of, on the whole unequivocal connotation.

Intervention is thus a predatory demand or an attempt at interference accompanied by enforcement or threat of enforcement in case of non-compliance. That interpretation of the term intervention complies an answer with the question of the limits of the action of the organ of the UN. Undertaking in order to encourage and promote the observance.

Human Rights

Preamble: we the peoples of the United Nations determined to save succeeding generation from the scourge of war, which twice in jour life time has brought untold sorrow to man kind, and

To reaffirm in fundamental Human Rights in the dignity and worth of the human person in the equal rights of men and woman and of nations large and small, and

To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

To promote social progress and letter standards of life in large freedom.

Art 1(3): To achieve international corporation 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.

Art 8: The United Nations shall place no restriction on the eligibility of men and women to participate in any capacity and under conditions of equality in its principle and subsidiary organs.

Art(1b): Promotion international cooperation in the economic, social, cultural, educational and health fields and assisting in the realization of Human Rights and fundamental freedoms for all without distinction as to race, sex, language and religion.

Art 55(c): Universal respect for and observance of Human Rights

And fundamental freedoms for all without distinctions to race, sex, language or religion.

Art 56: All members pledge themselves to take joint and separate action in cooperation with the organization for the achievement of the purposes set forth in act 55.

Art 62(2): It may make recommendations for the purpose of promoting respect for and observance of Human Rights and fundamental freedoms for all.

Art 68: The economic and social council shall up set commission in economic and social fields and for the promotion of Human Rights and such other commission as may be required for the performance of its functions.

Art 76(c): To encourage respect for Human Rights and for fundamental freedoms for all without distinction as to race, sex, language or religious and to encourage recognition of the inter dependence of the peoples of the world.