Human Rights

Description

CHAPTER I
CONCEPTUAL BACKGROUND OF HUMAN RIGHTS
General Notion of Human Rights 22
Evolution of the Human Rights concept 22
Origins and evolution of the Human Rights concepts 23
Origin and Evolution 27
Development of Human Right Regime 28
Human Rights and Duties: 30
Rights: Inherent, Inalienable, Universal, Indivisible 30
Meaning of a Right 30
Natural Rights 31
Legal Rights 32
Claim rights and Liberty Rights 32
Positive Rights and Negative Rights 32
Individual and Group Rights 33
Universal Rights 33
Dignity 36
Liberty 36
Equality 37
Justice 38
Ethics and Morals 38
Unity in Diversity 39

CHAPTER II
PHILOSOPHICAL AND HISTORICAL PERSPECTIVES
Historical Foundations of Human Rights 41
The Magna Carta and Human Right 42
Human Rights under the U.N. Charter 44
Universal Declaration of Human Rights and the Commission on Human Rights 45
Civil and Political Rights in the Universal Declaration 46
Economic and Social Rights in the Universal Declaration 47
International Judicial System-International Criminal Court 47
Declaration on the Right to Protect Human Rights 48
Human Rights Movements 50
French Revolution 50
U.S.A Right Revolution 50

CHAPTER III
INTERNATIONAL HUMAN RIGHTS STANDARDS
THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 52
The Covenant’s Implementation Mechanisms 53
Analysis of the Difference in Human Rights Behavior in Party-States and Non-Party States under the Convention 54
Model of Human Rights Behavior 55
Population Size 55
Economic Development 55
Civil War Experience 55
International War Experience 56
Leftist Regime for Human Rights 56
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966 57
Evolution of International Covenant on Economic, Social and Cultural Rights 1966 57
The United Nations Charter 1945 59
UN Secretariat’s First Draft of the UDHR, June 1947 60
Key Themes and Issues in the Drafting of Particular Rights 61
Social security and an adequate standard of living (UDHR Articles 22, 23(3) and 25) 61
Work rights (UDHR Articles 23 and 24) 62
The right to education (Article 26) 63
The right to take part in cultural life (Article 27) 64
The right to property (UDHR Article 17) 64
Final Remarks on the UDHR 64
Comparisons and Contrasts between the UDHR and ICESCR Provisions 65
CONVENTION ON ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION 1965 68
Implementation of Convention 69
Direct Reference to the Convention in United States Courts 69
The Most Critical Legal Issue: Our Scale of Scrutiny in Discrimination Cases 70
The International Standard 70
The U.S. Constitutional Standard 71
The Most Critical Practical Issue: Substantive Equality 72
Process to Implement Convention 72
The Uses of the Reporting Procedure 72
Domestic Advocacy: Bringing CEDAW Home 73
CONVENTION ON THE RIGHTS OF THE CHILD 1989 74
What Is Childhood? 75
The Children’s Rights Discourse 77
The Children Rights Discourse and Power Relations 79

CHAPTER IV
SOCIALLY AND ECONOMICALLY DISADVANTAGED AND HUMAN RIGHTS
Human Rights of Women 82
Gender Bias, harassment and offences against women 82
Violence against Women in India 82
Legal Status of Women 83
UN Definition on violence against Women 83
International Norms for the Protection of Women: 84
ILO Convention for the Protection of Female Labour, ILO Instruments on Labour Standards concerning Women Workers 84
Equal remuneration for work of equal value 84
Non-discrimination in the employment relationship 84
Work and Family Responsibility 84
Protection of Maternity and the Health of Women 85
Night Work and Underground Work 85
UNESCO Convention against Discrimination in Education (1960) 85
Convention on the Elimination of All Forms of Discrimination against Women (1979) 86
UN Convention on Political Rights of Women (1952) 87
Convention on Nationality of Married Women (1957) 88
Convention on Consent to Marriage 90
Minimum Age for Marriage and Registration of Marriage (1962) 92
Constitution of India and the Status of Women 92
Legal Rights to Women 93
Women and Public Policy 95
Female Health and Family Welfare 95
Multi-Dimensional Strategies for Empowerment of Women in India 97
Educational Approach 97
Health Approach 98
Employment Approach 99
Political Rights Approach 99
Social Approach 100
Special Laws for the Protection of Women 102
Suppression of Immoral Traffic Act (1956) 102
Maternity Benefit Act (1961) 102
Dowry Prohibition Act (1961) 103
Medical Termination of Pregnancy Act (1971) 104
Commission of Sati (Prevention) Act (1982) 105
Domestic Violence in India 105
Human Rights of the Children 107
Nature and issues in child rights in India 108
Impact of the Convention of the Child Rights 109
Child Rights and the world 110
The Right to Education 111
National and international norms and mechanisms for the protection of the child rights 111
UN Convention on the rights of the child 111
ILO Convention on Restriction and Prohibition on Child Labour Including ILO Convention on Child Labour, 1990 113
Selected relevant ILO instruments 113
Worst Forms of Child Labour Convention, 1999 (No. 182) 113
Optional Protocol on Sale of Children, Child Prostitution and Child Pornography (2000) 114
Declaration of Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption 115
Historical, Philosophical and Social Perspective of Child Rights, Status and Contemporary Indian Society 116
Milestones: National and International 117
Major Constitutional Provisions 118
Fundamental Rights 118
Directive Principles of State Policy 119
Critical Analysis of the Situation of Children in India 119
Vulnerability of Child Population 120
Adverse Child Sex Ratio 120
Impact of Poverty on Children 121
Need for a Uniform Definition of the Child 121
Need for Modifications in Other Constitutional and Legislative Provisions Related to Children 122
Child Marriage 122
Child Labour 122
Coercive State Population Policies and Their Impact on Children 123
Discrimination against Children 123
Education as a Tool for Development of Children 123
Role of National Human Rights Commission in Protecting and Promoting Children’s Rights 125
National Commission for Child Rights 125
Legal Norms and Policies 126
Child Labour (Prohibition and Regulation) Act 126
Child Marriage Restraint Act 1929 127
Pre-Natal Diagnostic Technique (Regulation and Prevention of Misuse) Act 1956 127
Salient features 128
Human Rights of the workers 128
History of Indian labour law 129
Constitutional rights of the workers in India 129
Wage regulation of labours 131
Health and safety of labours in India 131
Pensions and insurance of labors 131
Trade unions in India 132
Minorities, Human Rights and Duties 132
Conceptual Perspective: Minorities as Socio-Economic-Religious-Linguistic Concept, Regional Minorities, Role of Minorities in the Development of Human Rights. 132
Introduction 132
History 134
Minority rights at the Paris Peace Conference of 1919 134
Who are minorities under International Law? 135
Are indigenous peoples considered to be minorities? 136
Do minority rights apply to non-citizens? 137
What is the relationship between minorities, non-citizens and stateless persons? 138
National Legal Instruments for the protection of Rights of Minorities in India 139
Constitutional rights and safeguards provided to the minorities in India 139
Common Domain, the Directive Principles of State Policy – Part IV of the Constitution 139
‘Common Domain’, the Fundamental Duties – Part IVA of the Constitution 140
Common Domain, the Fundamental Rights – Part III of the Constitution 140
‘Separate Domain’ of Minority Rights 141
Legal framework for protection of religious minorities 142
Minority Rights Protection under International Human Rights Law 145
Main sources of minority rights 145
Additional sources of minority rights ………………………………………………..…..148
The Forum on Minority Issues 149

CHAPTER V
HUMAN RIGHTS AND DUTIES IN INDIA
Indian Constitution 150
India and the Universal Declaration 150
Civil and Political Rights in the Universal Declaration of Human Rights and in the Indian Constitution 150
Economic, Social and Cultural Rights in the Universal Declaration of Human Rights and in the Indian Constitution 151
The Constitutional and Institutional Framework of Human Rights in India 153
Fundamental Rights and Human Rights 153
Specified Fundamental Rights 155
Fundamental Rights for Citizens only 156
Other Fundamental Rights (Unremunerated Fundamental Rights) 158
Right to Child Education 159
Directive Principles of State Policy and Human Rights (Judicially non-enforceable rights) 160
Fundamental Duties and Human Rights 160
Political Rights and Human Rights 161
Institutional Framework and Human Rights 161
Judiciary and Human Rights 162
Expansion of Article 21 163
Public Interest Litigation and Human Rights 165
Media and Human Rights 168

CHAPTER VI
PROTECTION AND ENFORCEMENT OF HUMAN RIGHTS
Conventional Mechanisms 170
Overview of the Conventional Mechanisms 170
Reporting Procedure 171
Communications procedure for individual complaints 171
How to contact the committees 172
Committee on Economic, Social and Cultural Rights (CESCR) 172
Reporting procedure 172
General discussion days 172
Sessions 172
Human Rights Committee (HRC) 173
Reporting Procedure 173
Complaints by individuals 173
Sessions 174
Committee on the Elimination of all Forms of Racial Discrimination (CERD) 174
Reporting procedure 174
Individual communications procedure 174
Sessions 174
Committee against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment 175
Reporting procedure 175
Enquiry procedure 175
Individual communication procedure 176
Sessions 176
Committee on the Elimination of Discrimination against Women 176
Reporting procedure 176
Sessions 177
Committee on the Rights of the Child (CRC) 177
Reporting procedure 177
General discussion 178
Individual complaints 178
Sessions 178
Extra-Conventional Mechanisms 178
Special Procedures 178
Thematic and country mandates 178
Objectives 179
Dialogue with Governments 179
Individual complaints mechanisms 179
Urgent Action 180
The 1503 Procedure 180
Procedure for Communications 181
Admissibility 181
The Organization of American States: Inter-American Human Rights System 182
History of Organization 182
The American Declarations on the Rights and Duties of Man 182
The American Convention on Human Rights 183
The Inter-American Court of Human Rights [IACHR] 184
Enforcement of The Inter American Commission of Human Rights[I-ACoHR] 185
Procedure for the enforcement of Rights before the IACHR and the I-ACoHR 186
Rights protected under Specialized Instruments and Organs 188
Challenges confronting the Inter-American Human Rights System 189
Partial enforcement of the Decisions of the Inter-American Human Rights System 189
The Filter Procedure 190
The European Human Rights System [CoE & EU] 191
History of CoE and EU 191
The Council of Europe [ CoE] 192
The Convention on Fundamental Human Rights 192
The European Court of Human Rights (ECHR) 193
Enforcement of Rights before the ECHR 194
The European Social Charter 1961 (ESC) 195
The European Commission on Social Rights (ESCR) 195
Rights protected under Specialized Instruments and Organs 196
The Convention on Torture 196
The Convention against Trafficking in Human Being 197
The European Commission against Racism and Intolerance [ECRI] 198
The European Union (EU) 198
The Charter of Fundamental Rights of European Union 198
The European Agency for Fundamental Rights [FRA] 199
Consequences of the Entry into force of the treaty of Lisbon 199
Accession of the European Union to the ECHR 200
The European Court of Justice (ECJ) 201
The European Parliament 201
Challenges confronting the European Human Rights Systems 201

CHAPTER VII
A COMPARATIVE OVERVIEW OF THE UN AND REGIONAL BODIES HUMAN RIGHTS SYSTEMS
Description of the Human Rights Systems 204
General Overview 204
Europe and America 204
Africa 207
The Arab States 209
Asia-Pacific 210
National Human Rights Institutions and their Relationship to Regional Human Rights Mechanisms 211
The United Nations and its relationship to Regional Human Rights Mechanisms 212
The UN Actions at the Regional Level 212
Inter-regional Cooperation of the UN with Regional Mechanisms 213
Cooperation with the UN Treaty Bodies and Contribution of the Regional Human Rights Mechanism to the Universal Periodic Review 214
Cooperation of the Regional Human Rights Bodies with the UN Special Procedures 215
Conclusion 216
Recommendations for European Union Action 217
The European Union in the General Framework 217
The European Instrument for Democracy and Human Rights 218
Human Rights Clauses 219
The European Parliament and Human Rights Clauses 220
Institutional Partners 221
National Human Rights Institutions 221
Inter-parliamentary Cooperation 222
Partnership with the United Nations 223
Non-institutional Partners 224
Human Rights Defenders 225
Educational Institutions 227
Concluding Remarks on the EU’s General Framework for Realising to the Fullest Extent ………………………………………………………………………………………………..227
The European Union in a Case-By-Case Framework 228
Introductory Considerations 228
The Overall Priorities and Modalities of Action 229
Policy Considerations 230
Capacity Building in Inter-system Cooperation: The Vertical Relationship EU – Regional System 231
Policy Considerations within the Capacity Building Strategy 232
Capacity Building Strategy in Africa 234
The European Union may wish to consider the following opportunities 234
The European Union’ Interactions with the African Union 234
The EU’s Interactions with Institutional African Players (inter alia AU, NHRIs and NPs) 235
The European Union’s Interactions with the United Nations and/or the Council of Europe with the African Union 236
The European Union’s Interactions with Civil Society and Educational Institutions 237
The EU-Regional System in the Inter-system Framework 237
Inter-system cooperation could be advantageous as: 238
The Particular Inter-system Strategies to be Considered within the African Framework 239
Vertical Cooperation and Coordination. the Relationship between UN-Regional Systems 240
Recommendations with General Frame work 242
The strategy 242
Modalities of Action 243
Overall Priorities 243
Specific Context 243
Policy Considerations 244
Possible Initiatives 246
Cooperation with the League of Arab States based on the Arab Charter 247
Point of Departure 247
Policy Considerations 247
Possible Initiatives 247
Contribution to the Efforts Aimed at the Establishment of the Regional System in Asia-Pacific, in particular South-East Asia 248
Point of Departure 248
Policy Considerations 248
Possible Initiatives 249
Similarities and Differences of United Nations and Regional Bodies of Human Right System 249
Similarities 249
Binding Treaties 249
Commissions and Committees 250
Persuasive Decisions 250
Reporting Mechanism 251
Lack of Effective Enforcement Mechanism 251
Differences 251
Regional Courts 251
Jurisdiction 251
Interaction between Regional Mechanisms and the United Nation System 251
Establishment of OHCHR field Offices 251
References to Jurisprudence and other Documentation 252
Exchange of Information, Expertise, and Co-Operation in Relation to Country 252
Cooperation in decisions and recommendations 253
Establishment of Focal Points and Liaison Officers 253
Other means of Interaction 253
A Schematic Comparison Of Regional Human Rights Systems 254

CHAPTER VIII
INTERNATIONAL HUMANITARIAN LAW AND REFUGEE LAW
International Refugee Law 256
The Definition in the Refugee Convention 256
Evolution of Refugee Status under Customary International Law 260
State Practice Expanding the Definition 261
International Agreements Defining Refugee Status 262
The Organization of African Unity Convention on Refugees 262
The Asian-African Legal Consultative Organization Bangkok Principles 263
The Cartagena Declaration 263
The Mercosur Rio de Janeiro Declaration 264
The Influence of “Subsidiary Protection” in International Agreements 264
The Influence of Municipal Law 266
United Nations High Commissioner for Refugees Practice and Opinio Juris 266
Council of Europe Practice and Opinio Juris 268
European Union Practice and Opinio Juris 268
Other Instances of International Organization Practice and Opinio Juris 269
Refugee Laws in India 270
Mandate Refugees in India 270
Afghan Refugees 270
Iranian Refugees 270
Sudanese, Somalian and Iraqi Refugees 271
Refugees from Myanmar 271
Refugees during Partition of India 271
Refugees from Tibet 272
Bangladeshi Refugees; 1971 East Pakistani Refugees 272
Sri Lankan Tamil Refugees 273
Sindhi Refugees from Pakistan 274
Ugandan Refugees 274
Laws for Refugees, Evacuees and Displaced Persons 274
Laws governing Foreigners in India; Illegal Migrants and entry into India 279
Passport (Entry into India) Act, 1920, and Passport Act, 1967 279
Registration of Foreigners Act, 1939 280
Foreigners Order, 1948 281
Foreigners Act, 1946 282
Protection of Human Rights Act, 1993 283
Broad trends in the Policies towards Refugees in India 284
Entry into India 284
Work Permits 285
Fundamental Freedoms 285
Authorities supervise the Refugee Status in India 286
Immigration/Custom Authorities 286
The Police 287
Foreigners Regional Registration Office (FRRO) 287
International Committee of the Red Cross 287
History and Structure 288
International Legal Status 290
Impartiality, Neutrality, and Independence 292
Role of ICRC in the implementation of International Humanitarian Law 293
General 293
Technical Assistance 293
Promoting Compliance Globally 294
Persuading parties to comply through confidential communications 294
Doctrine 15 and Practice 295
Confidentiality as a Tool 296
The role of legal argumentation 297
Results 298
Reconciling the guardian and operational roles 299
The ICRC and International Criminal Courts 299
CHAPTER IX
EMERGING DIMENSIONS OF HUMAN RIGHTS
Sovereignty: An Evolving Concept 302
The Contemporary International System: How Sovereignty Works 303
Role of the United Nations 304
Human Rights and its Various Interpretations 305
Response of the International Community 307
The International Human Rights System and Non-State Entities 310
The Transnational Corporation: Definition and Debates 311
State Responsibility and TNCs Violations of Human Rights under International Law 315
International Responsibility of States for Human Rights Violations by Transnational Corporations 318
The Direct Responsibility of Transnational Corporations for Human Rights Violations under International Law 321
Transnational Corporations as Subjects of International Law 322
The Accountability of Non-State Actors under existing International Human Rights Norms 324
Practical Evidence of TNCs’ Direct Accountability under International Human Rights Law 327
Codes of Conduct: Definition and Content 328
On the International Inter-Governmental Level 329
On the National Level 330
On the Corporate Level 331
On the International Non-Governmental Level 332
The Legal Nature of Codes of Conduct 334
The Question of the Implementation of Codes of Conduct 337
Emerging Trends of New Rights in International Humanitarian Law 340
A Law of the Ecological Commons for Present and Future Generations 340
A Draft U.N. Declaration on the Rights of Future Generations 341
A Draft U.N. Declaration recognizing the Atmosphere as a Global Commons 342

CHAPTER X
SCIENCE, TECHNOLOGY, ENVIRONMENT AND HUMAN RIGHTS
Negative Role of Science and Technology on Sustainable Development “Careless Use of Natural Resources” 344
Changes in land and resource use 344
Renewable and Non-Renewable Resources 345
Natural resources and associated problems 345
Water resources 346
Mineral Resources 348
Questionable Scientific Developments 349
Organ Transplant and Sale 349
Right to Die in Dignity: Euthanasia 351
Cyber Crimes, Hacking, Pornography 359
Environmental Rights 366
Right to Clean Environment and Public Safety: Issues of Industrial Pollution, Prevention, Rehabilitation 366
Human Rights and Industrial pollution and its prevention ………………………………367
Concept of Environment and Human rights in relation with industrial disaster…………368
Victims of Industrial Disaster…………………………………………………………….369
What Government has done for the victims? or Government Policies and legislation in protection of human rights and environment………………………………………………369
Are the rights justified of the victims of industrial disaster?……………………………………….372

APPENDIX 1- CHARTER OF UNITED NATIONS, 1945 (With Amendments)..….…..377
APPENDIX 2- UNIVERSAL DECLARATION ON HUMAN RIGHTS, 1948…………..402
APPENDIX 3- INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1976…………………………………………………………………………408
APPENDIX 4- INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 1976………………………………………………428
APPENDIX 5- THE PROTECTION OF HUMAN RIGHTS ACT, 1993…………………439
OBJECTIVE QUESTIONS ON HUMAN RIGHTS………………………………………459