Category Archives: Law of Human Rights




Universal Declaration of Human Rights

Universal Declaration of Human Rights
A very big question is whether the provisions of the charter have a binding force to bring the various countries and the human rights provisions they have legislated within its ambit. But whatever be the situation, fact is that being a multi lateral treaty, whenever and wherever there is a violation of human rights, it is helpful in resolution of disputes. Voices were raised to form international bill of rights. Finally the work of formulation of bill of rights was interested to Human Rights Council. In the draft committee formed under the chairmanship of Elenad Roosvelt, some of the participants favoured a convention whereas others favoured a declaration.
In its 3rd session of the commission various facets of declaration, convention and execution were determined. General council rectified the same.
In June 1999, this draft was sent to economic and social council which sent the same to general council without a vote on the same. General council adopted the same on 10th December, 1998. 98 states adopted the same without any adverse consent 8 states kept a distance from the same. There are 30 articles in this declaration apart from the preamble.
Preamble of universal Declaration of Human Rights
High Standard political ideals: establishes a general standard for are the nations education, culture, independence, justice, peace, liberty, fraternity among nations. Gist: Independence, Equality, Indiscrimination and fraternity.
(1) Personal Rights
(2) Rights of persons relating to outer world, community.
(3) Political Rights
(4) Economic, Social and Cultural Rights.
Provisions of universal declaration of human rights
This declaration does not address nations or member nations of UNO. Rather it addresses every person. It is not a legal declaration either. But it has special importance because of the international respect and performance it accords to Human Rights. It has been propounded as a general standard of Human Rights and not in the form of a legal declaration.
Classification of Human Rights in UDHR
a. Civil and political rights—2 to 21.
b. Economic and social rights—22 to 27.
29(2): only such limitations shall be imposed on use of rights and freedom which affects others morality public order, common welfare is the key.
Legal Form of Declaration
This Declaration does not impose any legal obligation. It is basically a recommendation without any strict legal form. But it has a legal importance because it includes the authoritative interpretation of provisions of UNO charter. General council has made it standard for all and has requested all the nations to implement the same.
European Countries have done tremendous efforts towards implementation of the same. European Convention of Human Rights 1950: Council has established a commission and a court. Now in light of the same, list of conventions have been held as a result of which it has taken a legal shape and form.
1960- Tehran Declaration: Independence to colonies
1963: Abolition of are types of racial discrimination
1968: Informal meeting in Montreal on Human Rights
Effect of Declaration
Universal Declaration of Human Rights has been accepted as an International Standard.
Effect on European Convention: Peace declaration by Japan constitutions which came in force after 2nd world war. Indonesia, seria, haity, libuja, sudan, India, Maley, Somacia etc.
Declaration in the form of international customary land.
India and Declaration.
Group rights, also known as collective rights, are rights held by a group qua group rather than by its members severally;[1] in contrast, individual rights are rights held by individual people; even if they are group-differentiated, which most rights are, they remain individual rights if the right-holders are the individuals themselves.[2] Group rights have historically been used both to infringe upon and to facilitate individual rights, and the concept remains controversial.[3]
Overview
In Western discourse, individual rights are often associated with political and economic freedom, whereas group rights are associated with social control. This is because in the West the establishment of individual rights is associated with equality before the law and protection from the state. Examples of this are the Magna Carta, in which the English King accepted that his will could be bound by the law and certain rights of the King’s subjects were explicitly protected.
By contrast, much of the recent political discourse on individual rights in the People’s Republic of China, particularly with respect to due process rights and rule of law, has focused on how protection of individual rights actually makes social control by the government more effective. For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law.
Organizational group rights
Besides the rights of groups based upon the immutable characteristics of their individual members, other group rights cater toward organizational persons, including nation-states, trade unions, corporations, trade associations, chambers of commerce, political parties. Such organizations are accorded rights which are particular to their specifically-stated functions and their capacities to speak on behalf of their members, i.e., the capacity of the corporation to speak to the government on behalf of all individual customers or employees or the capacity of the trade union to negotiate for benefits with employers on behalf of all workers in a company.
Constitutions
In the United States, the Constitution outlines individual rights within the Bill of Rights. In Canada, the Canadian Charter of Rights and Freedoms serves the same function. One of the key differences between the two documents is that some rights in the Canadian Charter can be overridden by governments if they explicitly do so according to Section 33 of the Charter.[4] In practice, the Quebec government used the provision frequently in the early 1980s as a protest, and since then to maintain a ban on non-French public signs for five years. The government of Saskatchewan has used it for back-to-work legislation, and the government of Alberta sought to use it to define marriage as strictly heterosexual.[5]
Philosophies
In the minarchist political views of classical liberals and some right-libertarians, the role of the government is solely to identify, protect, and enforce the natural rights of the individual while attempting to assure just remedies for transgressions. Liberal governments that respect individual rights often provide for systemic controls that protect individual rights such as a system of due process in criminal justice. Collectivist states are generally considered to be oppressive by such classical liberals and libertarians precisely because they do not respect individual rights.
Ayn Rand, developer of the philosophy of Objectivism, asserted that a group, as such, has no rights. She maintained that only an individual can possess rights, and therefore the expression “individual rights” is a redundancy, while the expression “collective rights” is a contradiction in terms. In this view, a person can neither acquire new rights by joining a group nor lose the rights which he does possess. Man can be in a group without want or the group minority, without rights. According to this philosophy, individual rights are not subject to a public vote, a majority has no right to vote away the rights of a minority, the political function of rights is precisely to protect minorities from the will of majorities, and the smallest minority on earth is the individual.[6] Rand offers several unique perspectives on rights, holding that 1. ontologically, rights are neither attributes nor conventions but principles of morality, having, therefore, the same epistemic status as any other moral principle; 2. rights “define and sanction man’s freedom of action,”;[7] 3. as protectors of freedom of action, rights do not mean “entitlements” to be supplied with any goods or services;[8] 4. “Man’s rights can be violated only by the use of physical force. It is only by means of physical force that one man can deprive another of his life, or enslave him, or rob him, or prevent him from pursuing his own goals, or compel him to act against his own rational judgment.”[9] and 5. rights derive from the mind’s needs: for an organism that survives by means of reason, freedom is a survival-requirement:initiated force negates or paralyzes the thinking mind. Rand’s overall argument is that rights protect freedom in order to protect reason. “Force and mind are opposites.”[10]
Adam Smith, in 1776 in his book An Inquiry into the Nature and Causes of the Wealth of Nations, describes the right of each successive generation, as a group, collectively, to the earth and all the earth possesses.[11] The Declaration of Independence states several group, or collective, rights of the people as well as the states, for example the Right of the People: “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it” and the right of the States: “… as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.”
The division of human rights into three generations was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg. He used the term at least as early as November 1977.[1]Vasak’s theories have primarily taken root in European law.
His divisions follow the three watchwords of the French Revolution: Liberty, Equality, Fraternity. The three generations are reflected in some of the rubrics of the Charter of Fundamental Rights of the European Union.[citation needed] The Universal Declaration of Human Rights includes rights that are thought of as second generation as well as first generation ones, but it does not make the distinction in itself (the rights listed are not in specific order).
Generation Human Rights
First-generation human rights[edit]
First-generation human rights, often called “blue” rights, deal essentially with liberty and participation in political life. They are fundamentally civil and political in nature: They serve negatively to protect the individual from excesses of the state. First-generation rights include, among other things, the right to life, equality before the law, freedom of speech, the right to a fair trial, freedom of religion and voting rights. They were pioneered by the United States Bill of Rights and in France by the Declaration of the Rights of Man and of the Citizen in the 18th century, although some of these rights and the right to due process date back to the Magna Carta of 1215 and the Rights of Englishmen, which were expressed in the English Bill of Rights in 1689.
They were enshrined at the global level and given status in international law first by Articles 3 to 21 of the 1948 Universal Declaration of Human Rights and later in the 1966 International Covenant on Civil and Political Rights. In Europe, they were enshrined in the European Convention on Human Rights in 1953.
Second-generation human rights[edit]
Second-generation human rights are related to equality and began to be recognized by governments after World War II. They are fundamentally economic, social, and cultural in nature. They guarantee different members of the citizenry equal conditions and treatment. Secondary rights would include a right to be employed in just and favorable condition, rights to food, housing and health care, as well as social security and unemployment benefits. Like first-generation rights, they were also covered by the Universal Declaration of Human Rights, and further embodied in Articles 22 to 28 of the Universal Declaration, and the International Covenant on Economic, Social, and Cultural Rights.
In the United States of America, President Franklin D. Roosevelt proposed a Second Bill of Rights, covering much the same grounds, during his State of the Union Address on January 11, 1944. Today, many nations, states, or groups of nations have developed legally binding declarations guaranteeing comprehensive sets of human rights, e.g. the European Social Charter.
Some states have enacted some of these economic rights, e.g., New York State has enshrined the right to a free education,[2][3] as well as “the right to organize and to bargain collectively,”[4] and workers compensation,[5] in its constitutional law.
These rights are sometimes referred to as “red” rights. They impose upon the government the duty to respect and promote and fulfill them, but this depends on the availability of resources. The duty is imposed on the state because it controls its own resources. No one has the direct right to housing and right to education. (In South Africa, for instance, the right is not, per se, to housing, but rather “to have access to adequate housing,”[6] realised on a progressive basis.[7])
The duty of government is in the realization of these positive rights.
Third-generation human rights[edit]
Third-generation human rights are those rights that go beyond the mere civil and social, as expressed in many progressive documents of international law, including the 1972 Stockholm Declaration of the United Nations Conference on the Human Environment, the 1992 Rio Declaration on Environment and Development, and other pieces of generally aspirational “soft law”. Because of the present-day tilting toward national sovereignty and the preponderance of would-be offender nations, these rights have been hard to enact in legally binding documents.
The term “third-generation human rights” remains largely unofficial, just as the also-used moniker of “green” rights, and thus houses an extremely broad spectrum of rights, including:
• Group and collective rights
• Right to self-determination
• Right to economic and social development
• Right to a healthy environment
• Right to natural resources
• Right to communicate and communication rights
• Right to participation in cultural heritage
• Rights to intergenerational equity and sustainability
The African Charter on Human and Peoples’ Rights ensures many of those: right to self-determination, right to development, right to natural resources and right to satisfactory environment. Some countries also have constitutional mechanisms for safeguarding third-generation rights. For example, the Hungarian Parliamentary Commissioner for Future Generations, the Parliament of Finland’s Committee for the Future, and the erstwhile Commission for Future Generations in the Knesset in Israel.
Some international organizations have offices for safeguarding such rights. An example is the High Commissioner on National Minorities of the Organization for Security and Co-operation in Europe. The Directorate-General for the Environment of the European Commission has as its mission “protecting, preserving and improving the environment for present and future generations, and promoting sustainable development.”
A few jurisdictions have enacted provisions for environmental protection, e.g. New York’s “forever wild” constitutional article, which is enforceable by action of the New York State Attorney General or by any citizen Ex rel with the consent of the Appellate Division.